TSELISO JAMES THAMAE & Another vs. NED BANK LESOTHO LTD C OF A (CIV) 47 OF 2024,

The Financial Consumer Protection Act 2022 under section 21(1) provides that enforcement proceedings over a credit liability shall be commenced by financial service provider after a consumer has been –

(a) notified of a default

(b) informed of his rights”

Under section 21(2) it is required that- “(2) A financial service provider should issue a written notice explaining an amount overdue and how a default can be remedied by a consumer.

Contrary to the above prescripts of the law, Nedbank Lesotho Ltd issued out Summons against its consumer and secured judgment before the High Court (Mokhesi J) through Summary Judgment which was opposed by the customer whilst not raising the provisions of the Act as its defence. Dissatisfied with the High Court decision, the customer appealed to the High Court and argued for the first time there that notice as required by the Act had not been complied with. Nedbank argued that the issue had not been raised in the pleading before the High Court and had not been decided there and that this was unprocedural.

The Court of Appeal in upholding the Appeal on the 1^st November 2024 stated that;

• Pleadings are not only important, but indeed essential for fair litigation.
• Their main purpose being to state the core and perimeters of a litigant’s case, so that an opponent is not taken by surprise.
• Further that a court is not expected to take into account something that was not put before it for consideration.
• That on the other hand, pleadings cannot oust or override a valid statute.
• that the function of a court is to apply the law.
• The appellants were entitled to the protection the Act afforded to the consumers.
• This protection was denied them.

This decision underscores that the Courts are for the law and are mandated to uphold the rule of law and not to be bound  by procedural guidelines where the law dictates to the contrary.

Court of Appeal Quorum: MOSITO, P, SAKOANE, CJ, J VAN DER WESTHUIZEN, AJA