The Supreme Court of Appeal discussed, without deciding, the jurisdiction of the National Consumer Tribunal to deal with matters arising under sections 90 and 91 of the National Credit Act relating to the declaration of a provision as unlawful in terms of section 90(2) and void.
It appears from section 164(1) that no unlawful provision, as envisaged in section 90(2), contained in a credit agreement is void, as envisaged in section 90(3), unless and until a court declares it to be unlawful. That being so the Tribunal does not have the jurisdiction to declare such a provision unlawful because that jurisdiction appears to vest in a court and the Tribunal is not a court.
A court can either declare the provision void or not or it can alter the offending provision so as to render it lawful.
The case is The National Credit Regulator v Lewis Stores (Pty) Ltd.