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[2013] ZAGPJHC 55
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SA Taxi Development Finance (Pty) Ltd v Phalafala (1512/2013) [2013] ZAGPJHC 55 (28 March 2013)
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REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 1512/2013
In the matter between:
SA
TAXI DEVELOPMENT FINANCE (PTY) LIMITED
(Registration
Number: 2008/012599/07)
Plaintiff
And
PHALAFALA,
MAHLODI RULPH
(Identity
Number :...)
Defendant
JUDGMENT
VAN
EEDEN AJ
:
1.
The defendant opposes this application for
summary judgment. He avers that he did not receive the required
notice in terms
of s 129(1)(a) of the National Credit Act 34 of 2005
(“the Act”) prior to the commencement of these
proceedings.
2.
In terms of s 129(1)(b) the credit provider
may not commence any legal proceedings to enforce the agreement
before
inter alia
first
providing the notice envisaged in s 129(1)(a) to the consumer. S
130(1) stipulates that before a credit provider may
approach the
court for an order to enforce a credit agreement, it has to comply
with certain requirements, which for present purposes
may be
summarised as follows:
2.1.
first, there must be sufficient proof of
delivery of a notice sent in terms of s 129(1)(a) drawing the default
to the notice of
the consumer in writing; and
2.2.
second, and in terms of s 130(1) and
(1)(a), at the time that the credit provider approaches the court for
an order to enforce a
credit agreement, the consumer must have been
in default for at least 20 (twenty) business days and at least 10
(ten) business
days must have elapsed since the credit provider
delivered the aforesaid notice.
3.
Only once these steps have been completed
may the credit provider approach the court for an order to enforce
the credit agreement,
for s 130(3) and (3)(a) seeks to bar the court
from determining a matter unless the procedures required by
inter
alia
s 129 have been complied
with. If the court determines that the credit provider had not
complied with the provisions
of the Act as contemplated in subsection
(3)(a), the court must, in terms of s 130(4)(b)(i) and (ii), adjourn
the matter and make
an appropriate order setting out the steps the
credit provider must complete before the matter may be resumed.
4.
The summons was served on 25 January 2013.
The relevant paragraphs of the particulars of claim are highlighted
as follows to demonstrate
why I am of the view that the credit
provider complied with the provisions of the Act:
“
10.
In due satisfaction of the requirements of Section 129 read with
Section 130 of Act 34 of 2005 a letter was sent
by the Plaintiff to
the Defendant on
13 November 2012
by pre-paid registered post at
the address chosen by the Defendant as his domicilium citandi et
executandi
, a copy of which
letter is annexed hereto marked “
D”
and the contents of which is to be incorporated herein by reference
and read as if specifically pleaded.
11.
The letter referred to
above
reached the appropriate post
office for delivery to the Defendant
,
but despite notification to the
Defendant the letter was not collected.
Proof of delivery to the
appropriate post office appears from the relevant Track and Trace
printout from the Website of the South
African Post Office
,
a copy of which is annexed hereto marked “
E”
.
12.
The Tracking Number allocated by the South African Post Office which
appears on “
D”
hereto
correlates
with the tracking number which appears on annexure “
E”
hereto.
13.
The
Defendant failed to respond
to the aforesaid notice
in that:
13.1
He has failed to pay the arrears within
20
(TWENTY)
business days from date
of default, the current arrears being
R40
349.53
;
13.2
He has failed to refer the agreement to a debt counsellor,
alternative dispute resolution agent, consumer court
or ombud with
jurisdiction to resolve any dispute under the agreement or develop
and agree on a plan to bring the payments under
the agreement up to
date.
13.3
He has not returned the vehicle
to the Plaintiff
and there is no
matter arising from the agreement before the National Consumer
Tribunal.
13.4
A certificate certifying that the Plaintiff has complied with the
provisions of
Section 129
of the
National Credit Act is
annexed
hereto marked “
F”
and the contents of which should be read as if specifically pleaded
and incorporated herein by reference.
14.
The Plaintiff gave notice to the Defendant in annexure “
D”
hereto of its election to claim immediate payment of all rentals due
in terms of the agreement and, on failure by the Defendant
to pay, of
its intention to cancel the agreement.
15.
The Plaintiff
herewith
terminates the agreement of lease
.
16.
The total amount outstanding as on the date of termination of the
agreement is
R209 674.12
plus interest calculated thereon at the agreed interest rate.
17.
The Defendant resides within the jurisdiction of the above Honourable
Court.
18.
The Plaintiff
submits that the
Court is not prohibited in terms of
Section 130(3)
of the
National Credit Act 34 of 2005
to determine this matter.”
5.
The affidavit opposing summary judgment was
deposed to on 5 March 2013. The deponent denied that he had
received the notice
in these terms and again I provide the emphasis:
“
5.
The above Honourable Court
has no
jurisdiction
in this matter in
that the Applicant has failed to comply with the
section 129
read
with section 86 (1) and 130 of the National Credit Act, 34 of 2005
(“NCA”) in
that I
have not received the notice in terms of section 129
of the NCA and I was not made aware of it even I was in constant
communication with the Applicant.
7.1.5
I did not receive the notice in
terms of 129
of the NCA.”
6.
In
Rossouw
[1]
the Supreme Court of Appeal held that actual receipt of the required
notice in terms of s 129(1)(a) is unnecessary. In
Majola
[2]
the defendant had also not received the notice, claiming that it had
been sent to the wrong address. His argument that he
had
changed his
domicilium
address was rejected, and since the notice had been sent to his
chosen
domicilium
,
it did not matter that he had not received it. The SCA held
that that there was proper service of the s 129(1)(a) notice
“
and
the fact that he never received it does not render the notice invalid
and the issue of summons premature”
.
[3]
7.
Subsequently,
and in
Sebola’s
case,
[4]
the majority of the
Constitutional Court determined that the Act requires a credit
provider to prove that it had delivered the
notice to the consumer as
contemplated in s 129.
[5]
The
statute does not demand that the credit provider prove that the
notice has actually come to the attention of the consumer,
since that
would ordinarily be impossible.
[6]
The credit provider must, however, make averments that will satisfy
the court that the notice, on a balance of probabilities,
reached the
consumer.
[7]
Guidelines
were given as to how a credit provider could discharge the onus. Once
sufficient proof of delivery of the notice
has been demonstrated,
judgment by default will be granted.
8.
In
Mkhize’s
case,
[8]
however, Olsen AJ found
that there is non-compliance with the statute where it was
conclusively proved that the notice did not
reach the consumer, e.g.
because the notice was not collected from the correct post office. In
Binneman’s
case,
[9]
Griesel J came to the
opposite conclusion in a matter where the notice reached the correct
post office, but was subsequently returned
to sender. The court
held that the credit provider had duly provided notice as required by
the majority decision in
Sebola’s
case. In
Binneman’s
case judgment by default was granted, whereas in
Mkhize’s
case the court adjourned and made an order in terms of s 130(4)(b)(i)
and (ii) setting out the steps the credit provider must
complete
before the matter may be resumed. Thus Olsen AJ refused to
enforce the credit agreements, whereas Griesel J enforced
them.
9.
In both the
Mkhize
and
Binneman
matters the consumer clearly did not receive the notice prior to
summons. It is the same in this matter. But even if actual receipt
of
the notice is an absolute requirement, it has been satisfied in this
matter, since the required notice was attached to the summons,
which
was served on the defendant. What remains in issue is what to
do with the fact that the credit provider commenced legal
proceedings
to enforce the credit agreement before
first
providing the notice to the consumer.
10.
The defendant has had the notice in terms
of s 129(1) since the date of the service of summons and was thus
fully apprised of his
rights. He has been in default under the credit
agreement for at least 20 business days and at least 10 business days
have elapsed
since the credit provider delivered a notice as
contemplated in s 129(1). The defendant has had the opportunity to do
what the
notice invited him to do since receipt of the summons.
He is not asking for any directions in terms of s 130(4)(b)(ii), nor
does he give any indication of prejudice or of what he would have
done had he received the notice prior to the summons.
11.
The
bar in ss 129(1)(b) and 130(3)(a) is not absolute, but dilatory,
[10]
and must be read as being subject to s 130(4)(b). The latter
section allows a court to adjourn a matter and to make an order
setting out the steps the credit provider must complete before the
matter may be resumed. It follows that non-compliance
with the
procedures required by s 129 is not necessarily fatal to the
proceedings. In this regard I respectfully agree with
the
approach of Binns-Ward J in
ABSA
Bank v Petersen
.
[11]
He refused an application for rescission under circumstances where
the defendant had not received the s 129(1)(a) notice, since
the
infringement of the defendant’s rights to have received it
prior to summons was immaterial in the circumstances of that
matter.
12.
Non-receipt
of the notice prior to receiving the summons is not a defence,
dilatory or otherwise, to the plaintiff’s claim
in this matter.
The subsequent receipt of notice at the time of service of the
summons and the defendant’s reaction thereto,
entitle the
plaintiff to approach the court for an order to enforce the credit
agreement. No purpose would be served to give him
the notice for a
second time - it would be placing form above substance to require a
further notice to be sent to the defendant.
It is accordingly
unnecessary to adjourn the matter or to make any orders in terms of s
130(4)(b), since the defendant actually
received the notice and since
the time periods of s 130(1) and (1)(a) have actually expired.
I consequently find that the
fact that the defendant did not receive
the notice prior to service of summons
“
does
not render the notice invalid and the issue of summons
premature”
.
[12]
13.
Two
other issues were raised. In one instance the defendant
contends that certain latent defects excuse him from making payment
for the vehicle purchased by him, a 2011 CMC Sesbuyile 16 seater
minibus. The other contention is that he is excused from
payment because there was no meeting of the minds as he thought he
was purchasing the vehicle, and it has turned out that the agreement
is in fact one of lease. The defendant put it thus:
“
The
agreement is unlawful in that there was no consensus and/or meeting
of minds as I was misled to thinking
(sic)
that
I was entering into a sale/credit agreement instead of a lease
agreement”
.
[13]
These are not defences to the plaintiff’s claim at all, and no
more needs to be said.
14.
At this stage of the proceedings the
plaintiff only seeks an order for the return of the vehicle together
with an order for attorney
and client costs in terms of clause 9 of
the agreement.
15.
In the premises I make the following
orders:
15.1.
The defendant is ordered to return the 2011
CMC Sesbuyile 16 seater with engine number
4RB2115947
and chassis number
LJSKA3AH7AD801330
to the plaintiff;
15.2.
The defendant is directed to pay the
plaintiff’s costs of summary judgment on the scale as between
attorney and client.
15.3.
The remainder of the matter is postponed
sine die
.
H VAN EEDEN
ACTING JUDGE
Counsel for plaintiff:
Adv R Stevenson
Instructed by:
Marie-Lou Bester Inc
Counsel for defendant:
Adv B Nodada
Instructed by: Kekana
Hlatshwayo Radebe
Date of hearing: 14
March 2013
Date of judgment:
28 March 2013
[1]
Rossouw
and Another v FirstRand Bank Ltd
2010
(6) SA 439
SCA paras 31-32.
[2]
Majola
v Nitro Securitisation 1 (Pty) Ltd)
2012 (1) SA 226
SCA.
[3]
Majola
[19].
[4]
Sebola
and Another v Standard Bank of South Africa Ltd and Another
2012
(5) SA 142 (CC).
[5]
Sebola
[57].
[6]
Sebola
[74].
[7]
Sebola
[74].
[8]
Absa
Bank Ltd v Mkhize and Another and Two Similar Cases
2012
(5) SA 574 (KZN)
[9]
Nedbank
Ltd v Binneman and 13 similar cases
2012 (5) SA 569 (WCC).
[10]
Sebola
supra
[53].
[11]
Absa
Bank Ltd v Petersen
2013 (1) SA 481
(WCC) [25].
[12]
Majola
[19].
[13]
Page
38 para 7.1.3.