Judicial intervention and the call to transformative constitutionalism in the context of consumer law, debt collection and the National Credit Act: Bayport Securitisation Ltd v University of Stellenbosch Law Clinic

Abstract

As a result of various socio-economic factors, South Africans are some of the most indebted consumers in the world. Bad debt collection has escalated to a significant industry, with billions of rands at stake. The effects of private over-indebtedness and resulting collections are profound and have various negative consequences at household and macro-economic levels. These consequences are exacerbated when vulnerable debtors face unscrupulous debt collectors emboldened by a fragile legislative framework. Debtors depend on judicial intervention and effective access to courts to combat abusive lending and debt-collection practices. Courts are called on to protect vulnerable consumers by enforcing constitutional guarantees and values. Recently, the Supreme Court of Appeal was presented with the opportunity to demonstrate its commitment to transformative constitutionalism in consumer law and debt collection in the case of Bayport Securitisation Ltd v University of Stellenbosch Law Clinic. This judgment is significant as it attempted to address a serious and impactful concern with the interpretation of the National Credit Act. It will be demonstrated that the judgment is susceptible to serious criticism, particularly in its regrettable indifference to the constitutional values pertinent to the matter.