Cherangani Trade & Invest 107 (Pty) Ltd v Mason NO and Others

The applicant, an unregistered credit provider, advanced loans exceeding R2 million to the Selous Estate Property Trust and Alan Clifford Mason to satisfy an existing judgment debt secured by mortgage bonds over farms. Onerous loan and sale agreements were concluded shortly before execution against the farms. After default, the applicant sought to enforce these agreements in the Free State High Court. The High Court declared the credit agreements unlawful under the National Credit Act 34 of 2005, void ab initio, and ordered that all the applicant’s purported rights to recover payment or compensation from the fourth respondent be forfeited to the State in terms of section 89(5)(c). Leave to appeal was refused by the High Court and the Supreme Court of Appeal, prompting the applicant to seek leave to appeal directly to the Constitutional Court.

The application for leave to appeal was dismissed with costs, including the costs of two counsel. The trustees in the insolvent estate of Alan Clifford Mason were substituted as the fourth respondent.

The case is significant for clarifying the Constitutional Court’s approach to leave to appeal where it would act as a court of first and last instance, particularly in complex statutory and constitutional matters. It highlights the importance of joinder of the State where statutory forfeiture to the State is in issue and underscores judicial caution in interpreting section 89(5)(c) of the National Credit Act without full participation by interested state parties.