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[2017] ZAWCHC 14
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Amardien and Others v Registrar of Deeds and Others (5283/2016) [2017] ZAWCHC 14; [2017] 2 All SA 431 (WCC) (23 February 2017)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. 5283/2016
Before:
The Hon. Mr Justice Binns-Ward
Hearing: 31 January 2017
Judgment: 23 February 2017
In
the matter between:
RIAAN
MOGAMAT
AMARDIEN
First
Applicant
AND
ELEVEN
OTHERS
Second
to Twelfth Applicants
and
THE
REGISTRAR OF
DEEDS
First
Respondent
SHAUN
WINGERIN
N.O.
Second
Respondent
GRAEME
MICHAEL SCKOLNE
N.O.
Third
Respondent
NICOLA
MARTINE COHEN
N.O.
Fourth
Respondent
THE
CAPE TOWN COMMUNITY HOUSING
COMPANY
(PTY)
LTD
Fifth
Respondent
JUDGMENT
BINNS-WARD J:
[1]
In this matter the applicants, who were 12
purchasers of immovable property in terms of contracts of sale of
land on instalments,
have applied for orders (i) declaring the
action of the seller (the fifth respondent, the Cape Town Community
Housing Company
(Pty) Ltd) in having cancelled the contracts to have
been unlawful, (ii) setting aside the cancellation by the first
respondent
(the Registrar of Deeds) of the recording of those
contracts and (iii) declaring the subsequent sale of the
properties by
the fifth respondent to the second to fourth
respondents as trustees of the S & N Trust to have been
unlawful, and
hence void. There are in effect 12 separate
applications that have been brought together under one set of papers
for convenience.
It is accepted that if the applicants succeed
in obtaining the first of the aforementioned orders, the cancellation
of the recording
of the contracts would fall to be set aside.
Section 20(2)(b)
of the
Alienation of Land Act 68 of 1981
prohibits
the transfer of land to any person other than the instalment sale
purchaser while the contract is recorded, or, if the
purchaser is an
‘intermediary’ (as defined) to a ‘remote purchaser’
(as defined), to the intermediary.
No relief was sought in the
current proceedings in respect of the transfer of the properties to
the trust.
[2]
The issue centrally in contention therefore
is the validity of the cancellation of the contracts. In that
regard three matters
arise on the papers for determination.
Firstly, whether the applicants had been in breach of their payment
obligations under
the contract, as maintained by the fifth
respondent. Secondly, whether the applicants were given notice
in terms of s 129
of the National Credit Act 34 of 2005 (‘the
NCA’) before the contracts were cancelled. And thirdly,
whether,
assuming notice in terms of the NCA had been given to them,
the extent of the applicants’ respective arrears had been
indicated.
In regard to the latter question, the applicants
have alleged that the extent of their alleged arrears was omitted
from the letters
addressed to them in terms of s 129 of the NCA,
with the result (so it was argued) that the notices had been legally
ineffectual
for want of compliance with the requirements of s 129
of the NCA and/or
s 19
of the
Alienation of Land Act.
[3
]
It
bears mention, by way of historical background, that the fifth
respondent had previously obtained eviction orders against the
applicants in terms of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act, 19 of 1998, having purported
to
cancel the contracts by reason of the applicants’ default in
payment. The applicants, however, successfully appealed against
those
orders on the basis that the fifth respondent had not been entitled
to payment by reason of the contracts not having been
recorded in
terms of s 20 of the
Alienation of Land Act.
[1
]
The current proceedings arise out of further cancellations of the
contracts after they had been recorded.
[4]
The
sale of the properties to the S&N Trust occurred after the
recordals had been cancelled by the Registrar of Deeds at
the
instance of the fifth respondent after the further cancellations of
the contracts. It does not appear on the papers that
the fifth
respondent gave notice of its further cancellation of the contracts
to the applicants, but the application (in terms
of paragraph 2 of
the notice of motion) for a declaratory order that the purported
cancellations were unlawful implies an acceptance
by the applicants
that acts of cancellation did occur.
[2]
(It may be that the applicants accepted the letters they subsequently
received from the trust’s attorneys demanding
that they vacate
the properties as effectively haven given them notice of the
cancellation of the contracts.
[3]
The position is unclear on the papers. Certainly, however, the
applicants have not contended that the purported cancellations
were
ineffectual by reason of their not having been communicated by the
fifth respondent to the purchasers.)
[5]
The S&N Trust instituted eviction
proceedings against the applicants in the Mitchell’s Plain
magistrates’ court.
Those proceedings appear to have been
suspended pending the determination by this court of the current
application. The trustees
have chosen not to take an active
part in the current proceedings and delivered a notice of intention
to abide the judgment of
the court.
[6]
Sales
of land on instalments are regulated in terms of Chapter II of the
Alienation of Land Act 68 of 1981
. For current purposes it is
relevant to note that the Act makes provision, in s 20,
[4]
for the recording of instalment sale contracts. Recording of
contracts is effected by Registrar of Deeds at the instance
of the
seller, provided that if the seller does not do so within the
statutorily stipulated period, the purchaser may either cancel
the
contract within 14 days of the expiry of the period, or at any time
thereafter itself apply to the Registrar to have the contract
recorded. The purpose of recording the contract is to afford
certain protections to the purchaser. Section 26(1)(b)
of the
Act provides - subject to certain exceptions in terms of subsection
(3) that are not applicable on the facts of the current
matter - that
no person shall receive any ‘consideration’ by virtue of
a deed of alienation in respect of a sale of
land on instalments
until the recording of the contract required in terms of s 20 of
the Act has been effected.
[5]
[7]
The term ‘consideration’ is
specially defined in
s 1
of the
Alienation of Land Act. It
means: ‘
in relation to a sale of
land under any deed of alienation, … the purchase price and
interest thereon, excluding rent or
occupational interest
constituting a reasonable compensation for the use and enjoyment of
the land by the purchaser
’.
The only section of the Act in which the word
‘consideration’ is employed is s 26.
[8]
The contracts in question were entered into
on various dates in or about 2000. It was only in April 2014,
however, that they
were recorded. Despite the provisions of
s 26 of the Act, the applicants made certain payments towards
the purchase
prices. There were issues concerning the quality
of the building of the houses that had been constructed on the
properties.
In the course of addressing them the seller caused
certain remedial work to be undertaken and entered into variation
agreements
in respect of the purchase prices in terms of a so-called
‘affordability scheme’. Notwithstanding that the
terms
of the contracts contemplated that the properties would have
been paid for and transferred within a matter of four years, that did
not happen because of the suspension by the applicants of their
payments. The applicants assert, however, that they are not
in
breach of the agreements because, by virtue of the provisions in the
Act to which I made reference above, no consideration had
become
payable until the recordal of the contracts in April 2014. The
fifth respondent, on the other hand contends that whereas
the
instalments may not have become payable until the contracts had been
recorded, that did not prevent them falling due in accordance
with
the terms of the contracts. The seller’s contention was
thus that the accrued amounts outstanding under the contracts
became
immediately due and payable upon the recording of the contracts.
[9]
In my judgment the seller’s
contention is well-founded. The provisions of ss 20 and 26
of the Act are not directed,
according to their tenor, at affecting
the terms of the agreements. They do not affect when payment
falls due under the contract.
Section 26(1) is directed only at
excluding the seller’s right to recoup any payment in terms of
the contract until it has
done what is necessary to afford the
purchaser the protection that the legislature intended to be provided
consequent to the recording
of the contract. Section 26 is
clearly framed in a manner designed to serve as an incentive to
sellers to attend promptly
to the recording of the contracts.
But apart from the prohibition on the receipt of consideration until
the recording has
been done, the statutory provisions do not impact
on the terms of the agreement. Indeed, the prohibition on the
receipt of
consideration falls away if the purchaser, as it is
entitled to do, obtains the recording of the contract. The
statutory
provisions provide an incentive to both parties to do what
is necessary to achieve the statutory protections that follow upon
the
recording of the contract. The object of the statutory
protections afforded to purchasers of land on instalments is societal
in character, not contractual.
[10]
That the provisions are not directed at
derogating from the integrity of the contract is highlighted, I
think, by the fact that
the purchaser is afforded only a very limited
opportunity to cancel the agreement if the seller fails to attend to
the recording
of it timeously. If the purchaser elects not to
cancel within the given 14 day- period, or just omits to do so, it
remains
bound by the contract according to its tenor.
[11]
If the statutory object had been that no
amount should fall due under the contract until it had been recorded,
one would have expected
s 26(1) to have been worded to say
that. The prohibition against
receiving
consideration denotes something
different: that what the seller cannot do is accept payment of
that which has fallen due in
terms of the contract until it has been
recorded. A party to a contract ordinarily stands to receive
payment under it only
when the amount concerned has fallen due.
[12]
In my view, the clincher in favour of the
fifth respondent’s submissions on the proper construction of
the provisions is to
be found in the definition of ‘consideration’
(see para. [7]
above). It is
impossible to conceive why interest on the purchase price should have
been included in the defined meaning of
‘consideration’
if it had been the legislative intention that, irrespective of the
terms of the particular agreement,
no part of the purchase price
should become due before the contract was recorded. Interest
could only accrue on an amount
that had become due but remained
unpaid.
[13]
It follows that inasmuch as the applicants
were each in arrears in terms of the contracts when the contracts
were eventually recorded,
they thereupon fell to be regarded as ‘in
breach’ of the contracts for the purposes of
s 19
of the
Alienation of Land Act, or
‘in default’ for the purposes
of
s 129
of the NCA. The contracts were therefore amenable to
cancellation by the fifth respondent, subject only to any statutory
provisions to which the exercise of the right of cancellation was
subject.
[14]
Section 19
of the
Alienation of Land Act
provides
that a seller in terms of a contract of sale of land on
instalments is not entitled to enforce an acceleration of payment
clause
under the contract or to terminate the contract or institute
an action for damages by reason of any breach of the contract unless
the purchaser has been given notice of the breach and has failed,
notwithstanding demand, to remedy the breach within a period
to be
afforded of not less than 30 days of the said notice. It is,
rightly, common ground between the parties that the contracts
are
credit agreements that are subject to the NCA. The object of
s 19
is plainly equivalent to that of
s 129
read with
s 130
of the NCA. The provisions of
ss 129
and
130
of the NCA
also require the ‘credit provider’ (i.e. the seller in
terms of a sale of land on instalments) to give consumer
(i.e. the
purchaser) notice of any default in terms of the contract and an
opportunity to remedy it before any enforcement measures
can be
taken. Enforcement measures for the purposes of
s 129
of
the NCA, includes cancelling the contract by reason of the consumer’s
default; see
s 123(2)
of the NCA.
[15]
Section 172(1)
of the NCA provides:
‘
If there is a conflict between a
provision of this Act mentioned in the first column of the table set
out in Schedule 1, and a provision
of another Act set out in the
second column of that table, the conflict must be resolved in
accordance with the rule set out in
the third column of that table
’.
The Schedule provides that the provisions of the NCA prevail over
those of Chapter II of the
Alienation of Land Act to
the extent of
any conflict. As
s 129
of the NCA and
s 19
of the
Alienation of Land Act inconsistently
provide for notice to be given
before cancellation for breach of contract can be effected, the
effect of
s 172(1)
of the NCA is that
s 129
of the NCA
eclipses
s 19
of the
Alienation of Land Act. The
applicants have alleged that the fifth respondent failed to comply
with
s 129
of the NCA and also with
s 19
of the
Alienation
of Land Act. Their
reliance on
s 19
is unfounded in the
circumstances, and it is only the question of compliance with
s 129
of the NCA that requires to be considered.
[16]
The applicants allege, firstly, that they
did not receive notice from the fifth respondent in terms of
s 129
of the NCA and, secondly, that even were it to be found that notice
had been given the notices were fatally defective, mainly because,
so
it was alleged, the notices failed to state the amount by which the
respective applicants were in arrears. The applicants’
counsel applied during argument that the factual disputes in respect
of these matters be referred to oral evidence in the event
of the
court being unable to resolve them in the applicants’ favour on
the papers. The fifth respondent’s counsel
opposed the
application for a referral to oral evidence.
[17]
In
Sebola
and Another v Standard Bank of South Africa Ltd and Another
2012 (5) SA 142
(CC) the Constitutional Court held that, in the
absence of a ‘
contrary
indication
’,
it might be accepted that a notice sent by registered post by a
credit provider in terms of
s 129
had been delivered if it
appeared from a post office track and trace report that it had been
received at the local post office
of the consumer and that
notification had been given by the post office to the addressee that
the item was available for collection.
If, in contested proceedings
the consumer avers that the notice did not reach him or her, the
court seized of the enforcement proceedings
must establish the truth
of the claim.
[6]
The ordinary
evidentiary principles concerning the determination of disputes of
fact would be applicable. In motion proceedings
the so-called
Plascon-Evans
rule
[7]
would apply
in cases, in which, as here, final relief is sought. The Court
held it was not incumbent on the credit provider
to establish that
the notice had come to the subjective attention of the consumer.
[8]
[18]
Clarification
of the judgment in
Sebola
was
afforded in the Court’s subsequent judgments in
Kubyana
v Standard Bank of South Africa Ltd
2014 (3) SA 56
(CC). It was held that the obligation on the
credit provider in terms of
s 129
to ‘
draw
the default to the notice of the consumer in writing
’
is discharged, in the words of
s 65(2)
, by ‘[making]
the
document available to the consumer
’.
Mhlantla AJ, who wrote the main judgment, explained ‘
While
a credit provider must take certain steps to ensure that a consumer
is adequately informed of her rights, such a credit provider
cannot
be non-suited or hamstrung if the consumer unreasonably fails to
engage with or make use of the information provided. In
other words,
it is the use of an acceptable mode of delivery - the taking of
certain steps to apprise the consumer of the notice
- which the
statute requires of the credit provider, not the bringing of the
contents of the
s 129
notice to the consumer’s subjective
attention
’.
[9]
[19]
At para. 35-36 of
Kubyana
it was held that in a matter in which notice in terms of
s 129
had properly been given by means of registered mail, then if the
credit provider established by means of a track and trace report
that
the registered item had reached the consumer’s local post
office and notification that it was available for collection
had been
given to the consumer and no response had been obtained from the
consumer within the prescribed period, nothing more could
be expected
of the credit provider. Mhlantla AJ stated:
Certainly,
the Act imposes no further hurdles and the credit provider is
entitled to enforce its rights under the credit agreement.
It
deserves re-emphasis that the purpose of the Act is not only to
protect consumers, but also to create a ‘harmonised system
of
debt restructuring, enforcement and judgment, which places priority
on the eventual satisfaction of all responsible consumer
obligations
under credit agreements’. Indeed, if the consumer has
unreasonably failed to respond to the s 129 notice,
she will have
eschewed reliance on the consensual dispute resolution mechanisms
provided for by the Act. She will not subsequently
be entitled to
disrupt enforcement proceedings by claiming that the credit provider
has failed to discharge its statutory notice
obligations.
As set out earlier, even
if the s 129 notice has been dispatched by registered mail and the
Post Office has delivered the notification
to the consumer's
designated address, valid delivery will not take place if the notice
would nevertheless not have come to the
attention of a reasonable
consumer. But if the credit provider has complied with the
requirements set out above, it will
be up to the consumer to show
that the notice did not come to her attention and the reasons why it
did not.
(Footnotes omitted.)
It was also noted (at para. 48)
that ‘
It is never the case that an item dispatched by
registered mail will physically be delivered to an individual - such
delivery only
occurs if the item is sent by ordinary mail, which does
not suffice for purposes of ss 129 and 130 of the Act. If
a
consumer elects not to respond to the notification from the Post
Office, despite the fact that she is able to do so, it does not
lie
in her mouth to claim that the credit provider has failed to
discharge its statutory obligation to effect delivery
’.
(Footnotes omitted.)
[20]
Dealing
with the import of the term ‘
contrary
indication
’
employed in the majority judgment in
Sebola
(see para. [17]
above), the
court in
Kubyana
rejected
(at para. 49-53) an argument advanced that it was sufficient, in
the face of a track and trace report indicating that
the notice had
arrived at the her local post office and that notification that it
was available for collection had been given,
for a consumer baldly to
deny having received it. Mhlantla AJ held in that regard
that in such circumstances it fell
to the consumer to ‘explain
why it [was] not reasonable to expect the notice to have reached her
attention’.
[10]
At para. 57, the learned Constitutional Court judge articulated
the rejection of the argument with reference to the
facts of the
case, stating ‘…
this
defence cannot avail Mr Kubyana, for he elected neither to testify
nor to provide an explanation for why he did not respond
to the
notifications from the Post Office. That being the case, there is no
basis upon which we can determine that, notwithstanding
Standard
Bank's efforts, it was reasonable for Mr Kubyana not to have taken
receipt of the s 129 notice. And it must be remembered
that the
defence is a narrow one: it would apply only if Mr Kubyana were able
to prove that, despite the credit provider's attempts
at delivery, a
reasonable consumer in his position would not have collected the
notice or responded to it. In the result, Standard
Bank did all that
was required of it by the Act. To hold it to a higher standard would
be to impose an excessively onerous standard
of performance
.’
It is plain therefore that in the face of a track and trace report
from the post office showing that the notice sent
by registered mail
was received at the consumer’s post office and that
notification of its availability for collection was
given to the
consumer, there is, at the very least, a burden on the consumer who
asserts that the delivery of the notice was nevertheless
ineffectual
to adduce evidence to support a conclusion that she could not
reasonably have collected or responded to it.
[21]
It is accepted in the current matter that
the fifth respondent was entitled to give notice in terms of s 129
of the NCA by
registered post. This seems to me to have been a
correct manner of reconciling the provision with
s 19
of the
Alienation of Land Act, which
, as noted, it substantively overrides.
Section 19
, which would have been applicable when the contracts were
concluded, provides for notice of breach to be given by the seller to
the purchaser by means of handing it to the purchaser or sending it
to him or her by registered post. The contracts themselves
also
make provision for notice by registered post.
[22]
The first applicant made the principal
founding affidavit in these proceedings. The other applicants
contented themselves
with making essentially identical supporting
founding affidavits, which, in essence, merely purported to confirm
the allegations
in the principal founding affidavit. All that
the first applicant said in respect of the delivery of notice in
terms of
s 129
was the following (at para. 60 of his founding
affidavit):
It is
alleged that notices in terms of
section 129
of the
National Credit
Act
(“the NCA”) were sent to each of the Applicants
herein, including me. A copy of such notice – allegedly
sent by the First (sic) Respondent’s
[11]
attorney,
A Parker and Associates, on 25 April 2014 – is annexed
marked “
RMA
18
”.
I deny having received such a notice. Indeed, I deny having
received any notification in terms of
section 129
of the NCA at all,
and place the Respondents to the proof thereof should they deny this
allegation.
I think it must be assumed that by
their confirmatory affidavits the other applicants intended that
their evidence concerning notice
to them in terms of
s 129
of
the NCA was to be understood to be to the same effect as that of the
first applicant.
[23]
The fifth respondent attached to its
answering affidavit copies of the documents that it alleged were sent
by registered post to
the applicants by way of notices in terms of
s 129
of the NCA. Copies of the documents were attached as
annexures WJ15 to WJ26 to the answering affidavit deposed to by Mr
Werner
Jurgens, the acting chief operations officer of the fifth
respondent. It is evident that their content also served to advise
the
addressees that the contracts had been recorded in terms of the
Alienation of Land Act. Copies
of the track and trace reports
by the post office in respect of each of the notices were also
annexed as annexures WJ27 to WJ41
to the answering affidavit.
[24]
The
track and trace reports indicate that save in respect of the first,
fourth, eighth, eleventh and twelfth applicants, the notices
sent to
the applicants at the addresses of the properties they had purchased
in terms of the contracts were collected by the applicant
(or by a
person bearing the applicant’s surname). The seventh
applicant is the administrator of the deceased estate
of the late
Latiffa Adams, who had been the purchaser of the property at
3 Jasmine Crescent, Mitchell’s Plain.
The
seventh applicant was appointed as administrator in terms of
s 18(3)
of the
Administration of Estates Act 66 of 1965
in terms of letters
of authority from the Master, dated 28 February 2007.
[12]
Ms Adams, who died in 2006, had taken occupation of the property
in 2000 and had lived there with the seventh applicant,
who was her
son. The notice in terms of
s 129
was addressed to
Ms Adams, and not to the executor of her deceased estate. It
was not argued, however, that the notice
- assuming that it had been
delivered to the seventh applicant - would not have been effective on
account of its having been addressed
to the deceased, rather than to
the administrator of her estate.
[25]
With regard to the first, eighth, eleventh
and twelfth applicants, the track and trace reports reflect that the
notices were received
at the local post office (Lentegeur) and that
notifications were sent to the addressees, but that the items were
thereafter returned
to sender when they had not been collected after
being held available for about one month. The notice sent to the
fourth respondent
was, according to the track and trace report,
delivered to ‘Varind’ three days after notification that
it was available
for collection had been sent.
[26]
The
content of the post office track and trace reports is, of course,
hearsay. But, on the authority of the Constitutional
Court’s
judgments in
Sebola
supra (at para. 75-78) and
Kubyana
supra (at para. 43 and 53-54), it is ordinarily sufficient in the
circumstances described in the two preceding paragraphs to place
an
evidential burden on the applicants to show that delivery of the
notices was not effected. There is nothing in the facts
of the
current applications that takes them out of the ordinary.
[13]
[27]
In reply, the applicants responded in a
single paragraph to the fifth respondent’s aforesaid evidence
that notices in terms
of
s 129
had been duly delivered. It went
as follows:
Save to reiterate that
the alleged notices were never received by us; the contents of these
paragraphs [i.e. paragraphs 44-46 of
the fifth respondent’s
answering affidavit under cover of which the track and trace reports
were attached] are noted.
We further note the following aspects
of exhibits WJ27 to WJ41: my letter WJ15 was addressed to 39 Jeanne
Crescent but at the time
of posting my house was numbered 43 –
it was renumbered 39 in 2016; second applicant’s letter WJ16
likewise was sent
to number 53 whereas her home at the time of the
posting was number 57 and was recently renumbered 53 in 2016.
We further
note that the letters purportedly posted to us were dated
25 April 2014 but were only received by the Cape Mail from 21 May
2014
onward.
[28]
If the street number addresses of the first
and second applicants were indeed changed only in 2016, it was
remarkably prescient
of the fifth respondent’s attorneys to
have used the new street numbers in 2014. It is unexplained how
the attorneys
could have used the new street numbers if they had not
come into effect in 2014. It is improbable that it could be
coincidental
that the allegedly incorrect numbers used for the first
and second applicants’ addresses were actually allocated to
those
addresses two years later. (The fifth respondent contests
that the change of street numbers occurred only in 2016. It
says the addresses used were taken from the City of Cape Town’s
billing records. A copy of an August 2015 property
rates
account addressed by the City in respect of Erf 50792 – the
property purchased by the second applicant – giving
the street
address as
53
Jeanne
Crescent was put in under a ‘further affidavit’ by
Mr Jurgens,
jurat
31 January 2017, without objection.) The applicants’
reply furthermore offers no explanation how the track and trace
report reflects that the item addressed to the second applicant at 53
Jeanne Crescent was collected by a person bearing her surname.
[29]
The
s 129
notices to the applicants were all dated 25 April
2014, but it is apparent from the faintly visible Cape Mail stamp on
the
bottom right of annexures WJ27 and WJ28 to the fifth respondent’s
answering affidavit in the court’s set of the papers
that the
letters were posted only on 21 May 2014. It is evident
that WJ29 was also stamped, but the stamp is totally
illegible.
In fact the signs of its existence are barely visible.
(Annexure WJ29 is relevant only in respect of the
postage of a
registered item by the fifth respondent’s attorneys to the
ninth applicant.
[14]
)
[30]
In my judgment the applicants’
averments have been insufficient in the circumstances to
displace the prima facie effect
of the fifth respondent’s
evidence, supported by the track and trace reports, that notices in
terms of
s 129
were given to the applicants and that there was a
reasonable opportunity afforded for such notices to come to their
subjective
attention. That conclusion has been underscored, in
the context of the applicants’ election to have proceeded in
motion
proceedings, by the incidence of the
Plascon-Evans
rule. As mentioned, the applicants requested that in the event
of the court being inclined to such a conclusion on the papers
the
issue be referred for determination on oral evidence. I shall
treat of that application presently.
[31]
There is also a dispute of fact as to
whether the notices included particulars of the amounts by which each
of the respective applicants
was in arrears. That question also
falls to be determined adversely to the applicants on the
Plascon-Evans
rule and is also the subject of the application for a referral to
oral evidence. That possibility need only be considered,
however, if the fifth respondent had been bound to include the
information in the notices.
[32]
The fifth respondent’s counsel sought
support in the judgment of the late Appellate Division in
Phone-A-Copy Worldwide (Pty) Ltd v Orkin
and Another
1986 (1) SA 729
(A) for his
submission that, were such fact to be established, the omission of
the amount of the arrears would not detract from
the validity and
effectiveness of the
s 129
notices.
[33]
Phone-A-Copy
,
insofar as relevant, concerned compliance with the requirements of
s 13(1)
of the Sale of Land on Instalments Act 72 of 1971, which
was the statutory predecessor of
s 19
of the
Alienation of Land
Act. The
subsection provided as follows:
No seller shall, by
reason of any failure on the part of the purchaser to fulfil an
obligation under the contract, be entitled to
terminate the contract
or to institute an action for damages, unless he has by letter handed
over to the purchaser and for which
an acknowledgement of receipt has
been obtained, or sent by registered post to him at his last known
residential or business address,
informed the purchaser of the
failure in question and made demand to the purchaser to carry out the
obligation in question within
a period stated in such demand, not
being less than 30 days, and the purchaser has failed to comply with
such demand.
[34]
After
the purported cancellation of the contract in issue in that matter,
the purchasers contended that the notice given by the
sellers in
terms of
s 13(1)
failed to comply with the requirements of the
provision ‘
in
that it did not inform them of what they were required to do in
order to avoid the consequences of default; more specifically,
they
complained that it was not possible for them to establish or
calculate the balance outstanding “in respect of the purchase
price and all interest due under the deed of sale” to enable
them to comply with the demand
’.
[15]
The court
rejected the contention, holding (per Nicholas AJA):
…
It
was only if the notice had been in such terms as to make it difficult
for the plaintiffs to understand the details of what was
demanded
from them that it might be said that they had not received such
notice as was contemplated by the section ... .
In
terms of
s 13(1)
it was necessary for the seller to inform the
purchaser of the failure to fulfil any obligation under the contract.
That it did:
it informed them of the failure to pay … the
balance of the purchase price and interest. What that balance was,
was as readily
capable of ascertainment by the purchasers as it was
by the seller. The seller demanded that the purchasers carry out that
obligation
within the period of 30 days. When they failed to comply
with the demand, the seller became entitled to terminate the
agreement.
[16]
[35]
Section
13(1)
of the Sale of Land on Instalments Act, 1971, was one of two
comparable statutory provisions to which the Constitutional Court had
regard in its consideration of the import of s 129(1) read with
s 130 of the NCA in
Sebola
.
[17]
In the course of his discussion of the comparable provisions,
Cameron J, writing for the majority, referred to the judgment
in
Phone-a-Copy
without qualifying anything that had been said in it. He
remarked in that connection (at para. 133), ‘[t]
here
can be no doubt that both ss 12(b)
[of the Hire Purchase Act 36 of 1942]
and
13(1) sought to address the same problem, namely, the procedure to be
followed and the conditions that had to be met before
the seller
could act in one way or another when the buyer was in breach of the
agreement between the parties. There can also be
no doubt that under
both provisions the seller was required to bring the breach or
default to the notice of the buyer or purchaser
in writing, and had
to afford the buyer a period of at least 10 days to enable the latter
to remedy the breach or bring the payments
up to date before he could
institute legal proceedings or before he could terminate the
agreement. It must be noted that those
features, which were present
in ss 12(b) and 13(1), are also present in ss 129(1)(a) and
(b) read with s 130(1). I now
consider how the courts interpreted s
13(1) of the 1971 Act
’.
It is evident, however, that the focus of the comparative exercise
undertaken by learned judge was on the issue of
the effectiveness of
delivery of the notice rather than the extent of detail required in
its content.
[36]
Section 129(1) of the NCA provides as
follows insofar as relevant:
If the consumer is in
default under a credit agreement, the credit provider-
(a)
may draw the default to the notice of
the consumer in writing and propose that the consumer refer the
credit agreement to a debt
counsellor, alternative dispute resolution
agent, consumer court or ombud with jurisdiction, with the intent
that the parties resolve
any dispute under the agreement or develop
and agree on a plan to bring the payments under the agreement up to
date; and
(b)
subject to section 130 (2), may not
commence any legal proceedings to enforce the agreement before-
(i) first providing
notice to the consumer, as contemplated in paragraph
(a)
, …;
and
(ii) meeting any further
requirements set out in section 130.
(The only relevance of s 130 of
the NCA to the question now under consideration is that it affords
the consumer a period of
time to take corrective measures before the
credit-provider is able to take ‘enforcement’ action.)
[37]
The
‘
significantly
consumer-friendly and court-avoidant
’
character of
the requirements of s 129
was
emphasised by the Constitutional Court in
Sebola
.
Cameron J held that notice procedure was ‘
d
esigned
to help debtors to restructure their debts, or find other relief,
before the guillotine of cancellation or judicial enforcement
falls
’
.
[18]
[38]
Any determination of the requirements of
s 129 has to be undertaken in accordance with the interpretative
approach enjoined
in s 2 of the Act; viz. ‘
in
a manner that gives effect to the purposes set out in section 3
’.
Section 3 of the NCA provides:
The purposes of this Act
are to promote and advance the social and economic welfare of South
Africans, promote a fair, transparent,
competitive, sustainable,
responsible, efficient, effective and accessible credit market and
industry, and to protect consumers,
by-
(a)
promoting the development of a credit
market that is accessible to all South Africans, and in particular to
those who have historically
been unable to access credit under
sustainable market conditions;
(b)
ensuring consistent treatment of
different credit products and different credit providers;
(c)
promoting responsibility in the
credit market by-
(i) encouraging
responsible borrowing, avoidance of over-indebtedness and fulfilment
of financial obligations by consumers; and
(ii) discouraging
reckless credit granting by credit providers and contractual default
by consumers;
(d)
promoting equity in the credit market
by balancing the respective rights and responsibilities of credit
providers and consumers;
(e)
addressing and correcting imbalances
in negotiating power between consumers and credit providers by-
(i) providing consumers
with education about credit and consumer rights;
(ii) providing consumers
with adequate disclosure of standardised information in order to make
informed choices; and
(iii) providing consumers
with protection from deception, and from unfair or fraudulent conduct
by credit providers and credit bureaux;
(f)
improving consumer credit information
and reporting and regulation of credit bureaux;
(g)
addressing and preventing
over-indebtedness of consumers, and providing mechanisms for
resolving over-indebtedness based on the
principle of satisfaction by
the consumer of all responsible financial obligations;
(h)
providing for a consistent and
accessible system of consensual resolution of disputes arising from
credit agreements; and
(i)
providing for a consistent and
harmonised system of debt restructuring, enforcement and judgment,
which places priority on the eventual
satisfaction of all responsible
consumer obligations under credit agreements.
[39]
The applicants’ counsel did not refer
to any authority in support of the argument that particulars of the
arrears was an essential
ingredient of a notice of default in terms
of s 129 of the NCA. There is also nothing in the wording
of the provision
or the regulations that expressly requires that.
I am also unable to find that the legislative purposes set out in s 3
of the Act would be frustrated if the requirement that the arrears be
particularised were not imputed. It may be desirable
that the
information be given, but that is a different thing from it being
essential.
[40]
In
BMW
Financial Services (South Africa) (Pty) Ltd v Dr MB Mulaudzi Inc
2009 (3) SA 348
(B) (a summary judgment case in which the defendant
was given leave to defend the action), the opinion was expressed
[19]
that ‘…
credit
providers arguably tend to adopt a cold, mechanical and disinterested
approach in the course of purporting to comply with
the provisions of
s 129(1)(a). It could be argued that they merely reproduce
the provisions of this subsection and add
no flesh or substance to
them, to make them alive and understandable to their clients. There
is also room for the view that credit
providers like the plaintiff
[a
motor finance company]
,
who seem to have the resources, are possibly expected to make
s 129(1)(a) understandable and practical to their debtors.
A
message to the effect that, if the debtor cannot cope with the
current instalment, he/she should approach the credit provider
or a
credit counsellor to talk about what could be done to prevent drastic
action like repossession and a lawsuit being taken against
it/him/her, would possibly be considered more as a proposal than the
mere regurgitation of a portion of s 129(1)(a). A simplified
and
more practical version of s 129(1)(a), set out in the notice,
would possibly help a person in the position of the defendant,
given
the general history of prompt payment, including for the two months
after the notice had been sent in August, to have been
able to avoid
these proceedings being taken against it. All this depends on the
willingness and commitment, by especially the credit
provider, to
embrace the spirit of the Act. I do not think the intention of the
lawmaker was merely to have the credit provider
reproduce s 129(1)(a)
without any flesh being added to the skeleton that it appears to be.
Clearly, the intention was to propose,
which presupposes bringing
some thinking to bear upon the section rather than a dry and
mechanical reproduction of the subsection
’.
The applicants’ complaint, if it were factually well-founded,
might find support in these remarks.
[41]
However, the difficulty, with respect, with
the approach in
Dr MB Mulaudzi
is
that it leaves the credit providers’ obligations and the
corresponding rights of the consumers vague and undefined.
That
is irreconcilable with the expressly provided statutory objectives of
consistent treatment of credit providers and the establishment
of a
consistent and harmonised system of debt enforcement and judgment.
It would imply that the credit providers’ obligations
in
respect of the content of s 129 notices would fall to be
established incrementally by the views of judges on the nature
and
extent of the ‘flesh or substance to be added to the
skeleton’. As it is, the history of the judicial
treatment
of many of the express provisions in the Act has been
notably disharmonious – due in large part to the defective
draftsmanship
that characterises the statute. One can only
imagine how less certain its provisions would be if it were incumbent
on the
courts to determine on an ad hoc basis how the express
provisions should be fleshed out. The approach in
Dr
MB Mulaudzi
was referred to and not
followed in
Standard Bank of South
Africa Ltd v Maharaj t/a Sanrow Transport
2010 (5) SA 518
(KZP). I respectfully associate myself with the
comment at para. 6-13 of the latter judgment. Compare also
the
criticism of
Dr MB Mulaudzi
in JM Otto,
The
National Credit Act
Explained
, 4
th
ed., at pp.116 fin – 117: ‘
Had
the legislature wanted to put “flesh or substance” to
section 129(1)(a)
, it could easily have regulated the matter in that
section itself or in the regulations to the Act
’.
[42]
As
noted in
Phone-a
Copy
supra, the applicants were, notionally at least, in as good a
position to determine for themselves how much they owed under the
contracts. But if they were uncertain, the notice afforded them
the opportunity either directly or through an intermediary
such as a
debt counsellor, alternative dispute resolution agent or an attorney,
to make the necessary enquiries and engage with
the substantive
issue. The object of the notices was to allow the applicants to
avoid the guillotine of enforcement proceedings
or cancellation
falling by engaging with the fifth respondent before it happened.
Had they so engaged with the fifth respondent,
the latter would have
been bound in terms of the Act to respond in a bona fide manner.
If the amount of the arrears was information
that was lacking and
required by the applicants, the fifth respondent would have been
bound to provide it on request. But
the applicants would not
have been entitled to ignore the notices they were given merely
because, on their version of the facts,
the arrears were not
particularised. As emphasised in
Kubyana
supra, the NCA is not a one-sided consumer protection law. The
Act is expressly directed at promoting responsible behaviour
by
consumers with a view to the fulfilment of their contractual
obligations in respect of redeeming responsibly extended credit.
I can find no reason in the circumstances to conceptually distinguish
the requirements of s 129(1) in the relevant respect
from those
expressed in respect of s 13(1) of Act 72 of 1971 in
Phone-a-Copy
described above.
[20]
[43]
In the light of the conclusion to which I
have come that it was not essential that the s 129 notices set
out the amounts in
which the applicants were in arrears, it is
unnecessary to consider their application that the dispute of fact on
that issue be
referred to oral evidence.
[44]
In opposing the application for the
referral of the question of whether the notices were effectively
delivered to oral evidence,
the fifth respondent’s counsel
argued that the application should not be entertained as it should
have been made at the outset
and not advanced as a contingent
fall-back position. He also submitted that the application
should be dismissed in any event
as there had been no indication in
support of it that oral evidence would affect the probabilities as
they appeared on the papers.
[45]
In regard to the first of the
aforementioned points, Mr
D.C.
Joubert
SC for the fifth
respondent called in aid the judgment of the full court in
De
Reszke v Maras and Others
2006 (1) SA
401
(C), at para. 33, in which Comrie J made the following
observation:
Some younger counsel, in
particular, seem to take it half for granted that a court will hear
argument notwithstanding disputes of
fact and, failing success on
such argument, will refer such disputes, or some of them, for oral
evidence. That is not the procedure
sanctioned by the Supreme Court
of Appeal. On the contrary, the general rule of practice remains that
an application to refer for
oral evidence should be made prior to
argument on the merits. The Supreme Court of Appeal has widened the
exceptions to this general
rule, but they remain exceptions
Comrie J’s observation was
endorsed by the Supreme Court of Appeal (per Harms DP) in
Law
Society, Northern Provinces v Mogami and Others
2010 (1) SA
186
(SCA), at para. 23. The notion that a belated or
contingent application for referral should be considered only
exceptionally
derives from the remarks of Didcott J in
Hymie
Tucker Finance Co (Pty) ltd v Alloyex (Pty) Ltd
1981 (4) SA 175
(N) at 179D, quoted with approval by Corbett JA in
Kalil v
Decotex (Pty) Ltd and Another
1988 (1) SA 943
(A), at 981F.
[46]
The factual context of the application for
a referral to oral evidence in
De Reszke
was starkly distinguishable from that
of the application in the current matter. In
De
Reszke
the application was made for the
first time on appeal. As Comrie J noted immediately prior
to the passage from para.
33 quoted above, the Appellate Division had
in earlier judgments commended a flexible approach to applications to
refer disputes
of fact in motion matters for determination on oral
evidence. Comrie J quoted the words of Botha JA in
Administrator, Transvaal and Others v
Theletsane and Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) at 200C in this respect:
The recent tendency of
the Courts seems to be to allow counsel for an applicant, as a
general rule, to present his case on the footing
that the applicant
is entitled to relief on the papers, but to apply in the alternative
for the matter to be referred to evidence
if the main argument should
fail: see
Marques v Trust Bank of Africa Ltd and Another
1988
(2) SA 526
(W) at 530E - 531I and
Fax Directories (Pty) Ltd v SA
Fax Listings
CC
1990 (2) SA 164
(D) at 167B - J. It seems
to me that such an approach has much to commend itself, for the
reasons stated in the last-mentioned
two cases, but for the purposes
of the present case there is no need to pursue the point.
[47]
The relevant passages in the two provincial
division judgments referred to by Botha JA reflect a judicial
policy in favour
of entertaining applications for oral evidence
contingently on the outcome of argument on the papers where it is
fair in the circumstances
to do so. In other words a beneficent
view will be taken of such applications in circumstances in which it
was reasonable
for the party concerned to have elected to argue the
case on the basis that it might come home on the papers, reserving
its position
in respect of oral evidence for the contingency that the
court concludes that the matter cannot be so decided on the papers.
A case in which it should have been clearly evident from the outset
that oral evidence would be required does not so qualify.
[48]
In the current matter it is apparent from
the founding affidavit that the applicants were aware when they
instituted the proceedings
on motion that the fifth respondent’s
position was that it had delivered notices in terms of s 129 of
the NCA.
It was in the context of such knowledge, and having
obtained copies of the documents, that the applicants raised the
point about
the alleged defects in the content of the notices.
The applicants, who were legally represented, must be taken to have
been
aware of the Constitutional Court jurisprudence referred to
earlier concerning the prima facie effect of track and trace reports
indicating that the notices had reached their local post office and
been notified as available for collection. They must
accordingly have appreciated when they instituted the proceedings
that there would be a dispute of fact concerning delivery of
the
notices and that they would bear the evidential burden, in the face
of track and trace reports suggesting that the notices
had been made
available for collection or had indeed been collected, to prove that
they had had no reasonable opportunity to have
received the notices.
Inasmuch as they could not have obtained the track and trace reports
without knowledge of the relevant
parcel numbers, they could have
obtained these from the fifth respondent’s representatives,
just as they obtained copies
of the notices themselves.
[49]
Having elected to proceed on motion in the
face of what I consider to have been a manifestly foreseeable
material dispute of fact,
the applicants, moreover, failed, when the
foreseeable situation actually eventuated, to adumbrate in their
replying affidavits
the oral evidence that they would seek to adduce
to rebut the prima facie effect of the track and trace reports.
The replying
affidavits represented no advance on the bald denial of
receipt set forth in the founding papers. There is, for
example,
no indication that the applicants have sought to investigate
with the post office the underlying records that must have informed
the content of the track and trace reports. In the absence of a
cogent indication of what the oral evidence that the applicants
would
lead would be, I am, with one exception, not inclined to exercise the
court’s discretion in favour of granting the
application for a
referral of the question of delivery to oral evidence.
[50]
Turning briefly to the application for the
review and setting aside of the cancellation of the recordings of the
contract by the
first respondent. As mentioned, it is not clear
when the cancellations of the contracts were conveyed to the
applicants.
It may be that the recordings were cancelled before
the applicants’ notice had been brought to the cancellation of
the contracts.
It is trite that a cancellation of a contract is
effective only when the act of cancellation has been notified to the
guilty
party. Therefore if the recordings of the contracts were
cancelled before the applicants had been informed of the
cancellations,
that would have been unlawful. That was not the
case that the applicants advanced, however. But even had the
cancellations
of the recordings been premature, no point would be
served by setting them aside because the fifth respondent would be
entitled
immediately to have them cancelled again.
[51]
The result is that, save in respect of the
applicant that is the subject of the aforementioned exception (the
first applicant),
the applications will be dismissed.
[52]
In
the case of the first applicant it is uncertain whether the notice in
terms of s 129 did not come to his notice because
it was
directed to the wrong address. If the applicant’s
evidence that his address was not 39 Jeanne Crescent at the
time the
notice was addressed to him is established in a trial of the question
that might bear out his claim not to have received
notification that
the registered item was available for him to collect. As
mentioned, I consider that it is inherently unlikely
that the fifth
respondent could have anticipated the street number change by two
years, but in the interest of justice, I consider
that the first
applicant should be afforded the opportunity of establishing the fact
he alleged in this narrow respect. The
position of the second
applicant, who also raised the number change issue, is
distinguishable because in her case the track and
trace report
suggests that she or a person with her surname actually collected the
item, and she has failed to adumbrate in her
papers what evidence she
might be able to adduce to displace the prima facie effect of the
indication that she or a family member
collected the registered
item. In her case there is also the City of Cape Town rates
account mentioned earlier.
[21]
[53]
Finally, I must deal with an application to
strike out quite extensive parts of the fifth respondent’s
answering affidavit
on the grounds that the content was inadmissible
hearsay. Mr
Smalberger
SC, who appeared
pro bono
(together with Ms
Matsala
)
for the applicants, while he did not abandon the application, chose
not advance any argument in support of it. I do not
propose to
discuss the striking out application in any detail. Suffice it
to say that most of the paragraphs in the answering
affidavit to
which objection was taken related to questions concerning the defects
in the housing when it was occupied and the
remedial measures taken
in that regard. Those questions were not relevant to the issues
that fell for determination.
The other matters in some of the
impugned paragraphs that were of tangential relevance were of such a
nature that I would have
been inclined to admit the evidence in terms
of s 3(1)(c) of the Law of Evidence Act 45 of 1988. The
deponent may not
have been in the fifth respondent’s employ at
the time, but there is no reason not to think that, as acting chief
operations
officer, he would not have been able to apprise himself of
the facts from the company’s records. It is unnecessary,
however, for me to expatiate on the matter because, even assuming
that the striking out application were to have been decided entirely
in the applicants’ favour, it would have made no difference to
the result in the principal proceedings. In the circumstances
I
have found it unnecessary to decide the striking out application.
The costs attending it must be negligible.
[54]
As the proceedings are in effect 12
individual applications I consider that it would be appropriate that
each of the unsuccessful
applicants should bear responsibility for
the fifth respondent’s costs on an aliquot share basis, rather
than jointly and
severally.
[55]
The following order is made:
1.
No order is made in respect of the
applicants’ application to strike out passages in the fifth
respondent’s answering
affidavit.
2.
The applications of the second to twelfth
applicants are dismissed.
3.
The second to twelfth applicants shall each
be liable severally for one twelfth of the fifth respondent’s
costs of suit.
4.
The application of the first applicant is
postponed for the hearing of oral evidence before me on a date to be
arranged within 10
days hereof through my registrar solely on the
issue of whether the notice in terms of
s 129
of the
National
Credit Act 34 of 2005
was correctly addressed to him at 39 Jeanne
Crescent, having regard to the allotted street numbers in place in
May 2014.
5.
The evidence shall be that of any witnesses
whom the first applicant or the fifth respondent may elect to call,
subject, however,
to what is provided in para. 6 hereof.
6.
Neither party shall be entitled to
call any witness unless:
(a)
it has served on the other party at least
10 days before the date appointed for the hearing (in the case of a
witness to be called
by the respondent) and at least 10 days before
such date (in the case of a witness to be called by the applicant), a
statement
wherein the evidence to be given in chief by such person is
set out; or
(b)
the Court, at the hearing, permits such
person to be called despite the fact that no such statement has been
so served in respect
of his evidence.
7.
Either party may subpoena any person to
give evidence at the hearing, whether such person has consented to
furnish a statement or
not; either party may also issue subpoenas
duces tecum
.
8.
The fact that a party has served a
statement in terms of para. 6 hereof, or has subpoenaed a witness,
shall not oblige such party
to call the witness concerned.
9.
Within 15 days of the making of this order,
each of the parties shall make discovery, on oath, of all documents
relating to the
issue referred to in para. 4 hereof, which are or
have at any time been in the possession or under the control of such
party.
10.
Such discovery shall be made in accordance
with Uniform
Rule 35
and the provisions of that Rule with regard to
the inspection and production of documents discovered shall be
operative.
11.
In the event of arrangements not having
been made for the further hearing of the first applicant’s
application as provided
in terms of paragraph 4 hereof within the
period stipulated, leave is granted to the fifth respondent to apply
to me in writing,
in chambers, on five days’ notice to the
first applicant, for the dismissal of the first applicant’s
application with
costs on the same basis as provided in terms of
paragraph 3 hereof.
____________________
A.G. BINNS-WARD
Judge of the High Court
[1]
Section
20(1) of the Alienation of Land Act provides:
(1)
(a) A seller, whether he is the owner of the land concerned or not,
shall cause the contract to be recorded by the registrar
concerned
in the prescribed manner provided a prior contract in force in
respect of the land has not been recorded or is not
required to be
recorded in terms of this section.
(b)
If a period of 90 days from the date-
(i)
of the contract, if the land is registrable; or
(ii)
upon which the land becomes registrable; or
(iii)
upon which the land is registered in the name of a purchaser in
terms of a preceding contract which was or was required
to be
recorded in terms of this section,
has
expired without the seller having caused the contract to be recorded
in terms of paragraph (a), the purchaser may-
(aa)
within 14 days after such expiry cancel the
contract, in which case the parties shall be entitled to the relief
provided for in
section 28 (1): Provided that nothing in this
subparagraph contained shall detract from any additional claim for
any damages
which the purchaser may have; or
(bb)
at any time thereafter, if he does not cancel
the contract under subparagraph (aa), apply to the registrar
concerned to record
the contract in the prescribed manner: Provided
that should a purchaser exercise his right to cause a contract to be
recorded
in terms of the foregoing provisions of this subparagraph,
he shall not be liable for any wasted costs arising from the seller
also having taken steps or taking steps to have such contract
recorded.
(c)
If a contract recorded in terms of this
section is terminated for whatever reason, such recording shall be
cancelled in the prescribed
manner.
[2]
A
copy
of the application by the fifth respondent to the Registrar of Deeds
for the cancellation of the recording of the contract
to which the
first applicant was party was annexed to the applicants’
founding papers. The application includes an
affidavit by the
acting chief operations officer of the fifth respondent (who was
also the deponent to the fifth respondent’s
principal
answering affidavit) in which he avers ‘
The
contract of the sale of the property has been terminated as a result
of a breach of contract by the purchasers
’.
[3]
Datacolor
International (Pty) Ltd v Intamarket (Pty) Ltd
[2000] ZASCA 82
;
[2001] 1 All SA 581
(A),
2001 (2) SA 284
, at para. 29, affords
authority for the proposition that notice of a contracting party’s
election to cancel the contract
may effectively be given by a third
party; see also GB Bradfield (original text by RH Christie),
The
Law of Contract in South Africa
,
7
th
ed. at p. 637.
[4]
See
note 1
[5]
Section
26(1)(b)
of the
Alienation of Land Act provides
:
No
person shall by virtue of a deed of alienation relating to an erf or
a unit receive any consideration until-
(a)
…
(b)
in case the deed of alienation is a contract
required to be recorded in terms of
section 20
, such recording has
been effected.
[6]
See
Sebola
supra, at para. 87.
[7]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints Pty Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A), at 634-5.
[8]
Sebola
supra,
at para. 56-58 and 74 and
Kubyana
v Standard Bank of South Africa Ltd
2014
(3) SA 56
(CC)
at
para. 31
[9]
At
para. 32.
[10]
At
para. 53.
[11]
This
was plainly an intended reference to the fifth respondent.
[12]
The
seventh applicant averred that his sister is co-administrator of the
estate. The letters of authority from the Master
that was
attached to the papers do not bear out the averment, however.
They reflect the seventh applicant as the sole appointee.
If
the seventh applicant were only a co-administrator, his application
would have been fatally defective, having been brought
by himself
alone and not by both administrators acting jointly.
[13]
Proof
of delivery by registered post is now regulated in terms of
s 129(7)(a)
of the NCA, which was inserted in the Act in terms
of the National Credit Amendment Act 19 of 2014 with effect from
13 March
2015.
[14]
The
notice was addressed to CR & AD Cloete.
[15]
Phone-A-Copy
supra, at p. 750F.
[16]
Ibid
at 750G-I.
[17]
Sebola
supra,
at para. 124-137.
[18]
Ibid
para. 59.
[19]
At
para. 13.
[20]
See
paragraph [34]
above.
[21]
At para. [28] above.