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[2013] ZAGPJHC 387
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Standard Bank of South Africa and Others v Van Vuuren and Others (32847/2012) [2013] ZAGPJHC 387 (26 February 2013)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG
HIGH COURT JOHANNESBURG
CASE
NO: 32847/2012
DATE:
26 FEBRUARY 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