Risk and opportunities connected to the credit legislation on movable property : a case study

Abstract

The purpose of this paper is to determine to what extent should a lease of movable property fall within the ambits of the National Credit Act. The paper analyses the courts decisions regarding leases of movable properties, and further adds value to the existing scholarship. Courts are not ready to entertain extrinsic evidence in the cases where it contradicts the terms of an agreement. Parties should make sure that their contractual provisions are clear and unambiguous. Such provisions depict the notion that a lease of a movable property should fall within the ambits of the National Credit Act, hereinafter called NCA. And in such circumstances that qualifies it in terms of the Act ought to be met. In terms of section 8(4) of the NCA, a lease of movable property should by no means exclude the provision that ownership will pass to the lessee upon payment of the final rental instalment. Alternatively upon meeting certain conditions as determined by parties. One should therefore be able to differentiate leases in terms of the NCA and leases as defined by common law. Thus, one cannot try to qualify common law leases within the context of section 8(4) of the NCA where the original intention was an ordinary common law lease agreement. The Court in the case of ABSA Technology v Michael`s Bid House concluded that the NCA was not applicable to leases of movable property in certain circumstances. It is the findings of this paper that courts, recognize lease of movable property.