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[2013] ZAGPJHC 16
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Standard Bank of South Africa Ltd v van Vuuren and Several Other Matters (32847/2012) [2013] ZAGPJHC 16 (26 February 2013)
REPORTABLE
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE
NO: 32847/2012
DATE:26/02/2013
In
the matter between
STANDARD
BANK OF SOUTH AFRICA LTD
AND
SEVERAL OTHER
MATTERS
............................................
APPLICANTS
and
VAN
VUUREN, JG AND SEVERAL OTHER MATTERS
........
RESPONDENTS
J U D G M E N T
SUMMARY:
Positive indications that a consumer did not receive a notice
pursuant to
section 129
of the
National Credit Act 35 of 2005
-
requirements of delivery of notice not satisfied. Proof that a notice
in terms of
section 129
of the
National Credit Act 35 of 2005
was
dispatched to consumer’s correct post office may supplied by an
employee of post office by way of letter – letter
sufficient to
supplement track and trace report.
WEPENER J:
[1] There served a number of
applications before this court for default judgment in respect of
home loans where the applicants
seek foreclosure and execution
regarding properties over which mortgage bonds were passed in favour
of the applicants over such
properties, which all appeared to be the
primary homes of the respondents.
[2] In each instance it is
common cause that a notice pursuant to s 129 (1) of the National
Credit Act 34 of 2005 (the NCA) (s
129 notices) had to be given to
the respondent. In each of the matters before me such notices were
indeed posted. In
Sebola
and another v Standard Bank of South Africa Ltd and another
2012 (5) SA 142
(CC) Cameron J said at para 75 -78:
‘
[75] Hence, where the
notice is posted, mere despatch is not enough. This is because the
risk of non-delivery by ordinary mail
is too great. Registered mail
is in my view essential. Even though registered letters may go
astray, at least there is a “high
degree of probability that
most of them are delivered”. But the mishap that afflicted the
Sebolas' notice shows that proof
of registered despatch by itself is
not enough. The statute requires the credit provider to take
reasonable measures to bring the
notice to the attention of the
consumer, and make averments that will satisfy a court that the
notice probably reached the consumer,
as required by s 129(1). This
will ordinarily mean that the credit provider must provide proof that
the notice was delivered to
the correct post office.
[76] In practical terms this
means the credit provider must obtain a post-despatch “track
and trace” print-out from
the website of the South African Post
Office. As BASA's submission explained, the “track and trace”
service enables
a despatcher who has sent a notice by registered mail
to identify the post office at which it arrives from the Post Office
website.
This can be done quickly and easily. The registered item's
number is entered, the location of the item appears, and it can be
printed.
[77] The credit provider's
summons or particulars of claim should allege that the notice was
delivered to the relevant post office
and that the post office would,
in the normal course, have secured delivery of a registered item
notification slip, informing the
consumer that a registered article
was available for collection. Coupled with proof that the notice was
delivered to the correct
post office, it may reasonably be assumed in
the absence of contrary indication, and the credit provider may
credibly aver, that
notification of its arrival reached the consumer
and that a reasonable consumer would have ensured retrieval of the
item from the
post office.
[78]
The evidence required will ordinarily constitute adequate proof of
delivery of the s 129 notice in terms of s 130. Where the
credit
provider seeks default judgment, the consumer's lack of opposition
will entitle the court from which enforcement is sought
to conclude
that the credit provider's averment that the notice reached the
consumer is not contested.
’
[3] There are two questions that
need to be resolved. Firstly, whether there was compliance with s 129
(1) of the NCA despite the
fact that the ‘track and trace’
report indicates that the notice did, for some or other reason, not
reach the judgment
debtor
inter
alia,
as a result of
the fact that it was returned to sender. The second question is how
to deal with the difference in the address to
which the notice was
sent and the name of the post office on the ‘track and trace’
report.
[4] In regard to the first
question there are two conflicting judgments. The first being
Nedbank
Ltd v Binneman and 12 similar cases
[2012] ZAWCHC 141
(21 June 2012) and the second being
ABSA
Bank Ltd v Mkhize and Another, ABSA Bank Ltd v Chetty, ABSA Bank Ltd
v Mlipha
(4084/2012,
4115/2012, 3882/2012) [2012] ZAKZDHC 38 (6 July 2012).
[5] I am persuaded that the
judgment in
Mkhize
correctly interprets the judgment of the Constitutional Court in
Sebola
,
particularly if regard
is had to the minority judgment in
Sebola
,
which concluded that actual service of the notice on a judgment
debtor was required.
[6] I, consequently, concur with
the judgment in
Mkhize
given by Van Olsen AJ that, when there are indications contrary to
the requirements regarding the s 129 notice in
Sebola,
that a court cannot be satisfied that a notice probably reached the
consumer (
Sebola
par 75), and such notices were not effective. The service of the
notice in a manner which clearly indicates that the notice had
not
been collected at the post office but had been returned to sender,
cannot suffice to satisfy the requirements set out in
Sebola
regarding the probability that the notice reached the consumer. In
the circumstances I am of the view that it cannot be contended
that
there was compliance with s 129 of the NCA if it is clear that the
notice was returned to sender or for some other reason
it is apparent
that the consumer in fact did not receive the notice. I am in
agreement with what was expressed with Van Olsen AJ
in
Mkhize
at para 55 and 56 where it was said:
‘
[55]
In paragraph 74 of the judgment the court then reached the
conclusion that an understanding of the meaning of the term “deliver”
in section 130 must be found in a broader approach by determining
what the credit provider should establish “by way of proof
that
the section 129 notice in fact reached the consumer”. In my
view if one knows that “in fact” the section
129 letter
did not reach the consumer then evidence which might have gone the
other way in other circumstances becomes irrelevant,
and the court in
Sebola must have been alive to that. Indeed, at the end of paragraph
74 of the majority judgment it is stated
that the point of the
evidence is to “satisfy the court from which enforcement is
sought that the notice, on balance of probabilities,
reached the
consumer”. It is impossible so to be satisfied if one knows
that as a matter of fact the notice did not reach
the consumer
because it was returned to the credit provider.
[56]
In that context what is conveyed in paragraph 77 of the majority
judgment is clear enough. Coupled with the required allegations
in
the credit provider's summons, proof that the notice reached the
correct post office brings about that “it may reasonably
be
assumed in the absence of contrary indication,.. that notification of
its arrival reached the consumer and that a reasonable
consumer would
have ensured retrieval of the item from the post office”. (My
emphasis.)’
[7] In the circumstances in those
matters where the notice was returned to sender or there were
positive indications to controvert
the assumption referred to in para
77 of the
Sebola
judgment, there have not been compliance with the provisions of s 129
of the NCA. Those matters were consequently adjourned pursuant
to the
provisions of s 130 (4)(b) of the NCA with appropriate orders as to
steps that the applicants should take before the matters
may be
resumed. The steps so ordered to be taken are irrelevant for purposes
of this judgment.
[8] I need not deal with this question further as I am assured that
the Mkhize matter is to be be dealt with by the Supreme Court
of
Appeal in due course.
[9] The second question is a
factual one. The addresses chosen by the consumers often differ from
that which appear on the ‘track
and trace’ report as far
as the relevant town, suburb or post office is concerned. As an
example in the first matter now
under consideration, the chosen
address of the respondent is ‘
Plot
17, Tenandries, Randfontein, 1760
’
to which the registered notice pursuant to s 129 of the NCA was
forwarded.
[10] However, the ‘track
and trace’ report shows that the document was delivered to the
Randgate West post office. In
another matter, for instance, the
notice was sent to Vosloorus but landed up the Boksburg North post
office. There are numerous
such examples. This is so because the post
office indicated on the ‘track and trace’ report is the
post office that
serves the particular address to which the notice
was sent.
[11] In order to overcome this
discrepancy Ms Fine, appearing for the applicants, handed up a letter
on an official South African
Post Office letterhead, signed by an
accounts manager of the South African Post Office, in which he
advised that after 24 years
employment with the South African Post
Office, he is fully conversant with the systems used by the South
African Post Office regarding
mail delivery in South Africa. He
further states that ‘
I
have accessed the systems and am accordingly able to confirm that the
post office listed in the right hand column would have been
responsible for the delivery of the item to the address listed in the
left hand column
’.
The right hand column refers to Randgate West and the left hand
column ‘
Plot 17,
Tenandries, Randfontein, 1760
’.
He consequently sets out the local post office which serves the
address to which the notice was sent. This explains and
clears up any
discrepancy that there may have existed and the post office reflected
in that ‘track and trace’ report
is indeed the post
office serving the address to which the s 129 notice was sent.
[12] I have to decide if such
letter is sufficient evidence for purposes of establishing that the
‘track and trace’
report indeed reflects the correct
information. I am of the view that it is.
[13] The identification of the
post office, serving the address where the s 129 notice was sent to
can, in my view, sufficiently
be proved by such an official letter
issued by a responsible employee of the South African Post Office. I
accordingly accept the
letters handed up by Ms Fine in which the
official of the South African Post Office identifies the post office
at which the s 129
notice was delivered as the relevant post office
that services the address of the consumer.
[14] The requirement of proof of
service of notices has for many years been met by, what is
essentially, hearsay evidence. Proof
by way of registered slip that a
document was sent is hearsay. Proof of a publication of a notice in
newspaper is similarly hearsay.
Indeed a sheriff’s return of
service is hearsay. The ‘track and trace’ report from the
post office, downloaded
from its website, is hearsay, yet courts have
regarded these documents as sufficient to prove that publication or
service had taken
place.
[15] In addition, the
Constitutional Court has recognised such evidence as sufficient to be
placed before a court to satisfy the
requirements of s 129 of the
NCA.
[16] An official letter from the
South African Post Office, confirming that a particular post office
serves the consumer’s
address would, in my view, be
supplementary to the ‘track and trace’ report obtained
from the internet and I can see
no reason why such a letter should
not suffice to identify the relevant post office.
[17] I consequently allowed
counsel to hand up a letter on an official letterhead of the South
African Post Office to satisfy me
that the name of the post office
contained in the ‘
track
and trace
’
report is indeed the post office serving the address of the debtor to
which the s 129 notice was sent.
[18] I, consequently, find that
the applicant has sufficiently shown that the apparent discrepancy
between the address to which
the s 129 notice was sent and the post
office reflected on the ‘
track
and trace
’
report is not significant and indeed that the s 129 notice was
delivered to the correct post office.
[19] In the circumstances I grant
the following order against the first respondent:
19.1 The sheriff of this court or
his lawful deputy is authorised, directed and empowered, to attach,
seize and hand over to the
applicant the vehicle being a Ford Ranger
2500TD, Engine number WLAT759647 and Chassis number
AFADXXMJ2D7K03279.
19.2 Costs of suit.
[20] The orders in each of the
other matters are endorsed on their respective court files.
WL
WEPENER
JUDGE OF THE HIGH COURT
COUNSEL
FOR THE APPLICANTS:
Adv
Vanessa Fine
APPLICANT’S
ATTORNEYS:
Hammond
Pole Attorneys
DATE/S
OF HEARING:
26
February 2013
DATE
OF JUDGMENT:
26
February 2013