Edgars’ right to collect more than R450m in club fees from those who buy on credit is under attack again as the National Credit Regulator (NCR) has applied – and been granted – leave to appeal against a Gauteng High Court (Pretoria) decision that Edcon’s club fees are lawful.

This, according to BusinessLIVE, was confirmed by Nthupang Magolego, a senior legal adviser at the NCR.

In August the court found that the National Consumer Tribunal (NCT) erred in finding that Edcon was not allowed to charge a club fee and that in charging this fee it had engaged in conduct prohibited by the National Credit Act.

In upholding Edcon’s appeal against the NCT’s April 2017 judgment, Judge Johan Louw said the club fee charged by Edcon was ‘clearly’ not a cost of the credit extended to the consumer in terms of the credit facility.

‘Edcon’s credit agreements do not place any obligation on a consumer to pay a club fee.’

The tribunal had argued that the debate was not whether the fee constituted a cost of credit as defined in the NCA, but rather whether the Act allows a credit agreement to contain any fee or charge other than that permitted by the NCA.

‘It is irrelevant whether or not the fee is presented as a tick box option, can be cancelled, is optional, is not amortised or whether there is a clause specifically excluding the fee from the credit agreement.’

Section 101 prescribes the fees and charges that may appear in the credit agreement and a club fee is not one of them, it concluded.

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