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[2017] ZAGPJHC 31
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Dlamini v Standard Bank of South Africa Ltd; In re: Standard Bank of South Africa Ltd v Dlamini (40577/2015) [2017] ZAGPJHC 31 (23 February 2017)
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 40577/2015
Reportable:
NO
Of
interest to other judges: NO
Revised.
23
February 2017
In
the matter between:
MAKHOSAZANA
BABY
DLAMINI
Applicant
and
THE
STANDARD BANK OF SOUTH AFRICA LTD
Respondent
In
re:
THE
STANDARD BANK OF SOUTH AFRICA
LTD
Plaintiff
and
MAKHOSAZANA
BABY DLAMINI
First
Defendant
JUDGMENT
RATSHIBVUMO
AJ
:
Introduction
[1] This is an
application for a rescission of a default judgment that was granted
by this court on 10 December 2015. The
applicant submits as
reasons for the application that the judgment was erroneously granted
in that on the date of the order, no
notice in terms of section 29
(Act 34 of 2005 – the Act) was issued, sent or received by her
as the debtor.
Background
[2]
The applicant and the respondent entered into a credit instalment
agreement on 23 May 2014, for purchase of a motor vehicle
the total
cost of which was R1 338 109.20. Part of the agreement was that the
applicant would make an initial payment of R120 000.00
followed by 71
monthly instalments of R18 584.85. Summons was issued on 17 November
2015 following the applicant’s failure
to keep up with the
instalments, starting from January 2015. The records reflect that it
was served by the sheriff on 20 November
2015 at the applicant’s
domicilium citandi
by affixing a copy thereof to the outer or
principal door at the given address. The records filed by the
respondent further reflect
that at the time the summons was issued,
the applicant was in arrears of R92 070.88. There was no entry to
defend the matter and
as such, a default judgment was sought and
granted as indicated above.
[3]
Though not expressly contained in the applicant’s papers, the
application seems to be rooted in Rule 42 (1) (a) which
provides that
the court may, in addition to any other powers it may have,
mero
motu
or upon the
application of any party affected, rescind or vary an order or
judgment erroneously sought or erroneously granted in
the absence of
any party affected thereby. In order to determine if the default
judgment was erroneously granted as averred by
the applicant, it is
apposite to consider and unpack the factual matrix upon which the
application is predicated.
[4]
Summons issued by the respondent contained a letter written in
compliance with sec 129 dated 19 October 2015.
[1]
The respondent attached proof that the letter was dispatched by
registered post on 19 October 2015 marked for the attention of
the
applicant at address no. […] B. Crescent, Bouvet Street, North
Riding, 2188. This is the same postal address contained
in the credit
agreement referred to above as the applicant’s address.
[2]
According to parcel tracking records uplifted by the applicant from
the Post Office website, the letter reached North Riding Post
Office
on 22 October 2015 and the first notification to the recipient was
sent the same day.
[5] The said letter was
sent in accordance with the provisions of section 129 (1) of the Act
which provides,
“
(1) Required
procedures before debt enforcement - “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), or in section
86 (10), as the case may
be;
(ii) meeting any
further requirements set out in section 130.”
[6]
The Act was amended in 2014
[3]
to give guidance in how the creditor would give effect to sec 129 (1)
with the insertion of sec 129 (5) which provides,
(5) The notice contemplated in
subsection (1) (a)
must be delivered
to the consumer—
(a)
by registered mail;
or
(b) to an adult
person at the location designated by the consumer.
[own
emphasis]
[7]
The Constitutional Court held in
Sebola
and Another v Standard Bank of South Africa Ltd and Another
[4]
that where the credit provider posts the notice, proof of registered
despatch to the address of the consumer, together with proof
that the
notice reached the appropriate post office for delivery to the
consumer, will in the absence of contrary indication constitute
sufficient proof of delivery.
[8]
Failure to giver proper notice to the other party resulting in
judgment being granted in his absence can be a ground for rescinding
the judgment in that it was erroneously given.
[5]
However proper service does not mean the papers should be served
personally. Just as Msimang J observed in
Brangus
Ranching (Pty) Ltd v Plaaskem (Pty) Ltd
[6]
,
it would be improper service of summons if it is served on a person
in charge of the premises instead of an employee (in respect
of
service to a company)
[7]
. The
fact that the applicant was not given the summons does not make the
judgment granted pursuant to such service erroneous. It
can however
serve to prove that there was no wilful default on his part.
[8]
The documents filed by the respondent in applying for the default
judgment show that the respondent had properly complied with
sec 129
of the Act.
[9]
In interpreting the judgment in
Sebola
,
the court held In
Balkind
v ABSA Bank
[9]
the
court interpreted the
Sebola
judgment
adopting the following approach,
“
on my
interpretation of
Sebola
and particularly in view of the absence of any section in the Act
which requires proof of receipt by the consumer, or proof of
delivery
at the correct address, or more importantly proof that the notice
actually came to the attention of the consumer, the
degree of proof
required by the judgment leaves room for a finding of fictional
fulfilment of the principle that the s 129 notice
had come to the
attention of the consumer. For instance, a recalcitrant debtor who
deliberately avoids the notification to collect
a registered item,
or, having received the notification, deliberately avoids collecting
it, cannot hide behind non-receipt of the
notice or be heard to say
it did not come to his/her attention.”
[10]
It follows therefore that the mere fact that the applicant claims
that she did not receive the sec 129 letter cannot in itself
be a
reason to find that the judgment was erroneous since it is not even a
legal requirement for the respondent to prove that she
received it.
[11]
In the same breath as the submissions on the sec 129 letter above,
the applicant alleges that she did not receive the summons.
In an
attempt to prove this, she attaches copies of the security books
alleging that since she resides in a gated complex where
any person
entering is made to sign the book, the sheriff’s entry would be
reflected and it is not.
[10]
In so doing she attempts to cast doubt that the sheriff may have
served the summons by affixing it to the door of her residence.
No
affidavit is attached by the security officers to the effect that the
sheriff did not serve the summons as alleged. The copies
of security
books attached do not help her case at all because on closer
observation, no person entering the premises was made
to sign on
them. The only entries in them are by security officers reporting on
duty, off duty or any other incident on what they
did while on duty.
No signatures by visitors appear therein. In essence, these exhibits
do not support the averments by the applicant.
Bona
fide
defence
[12]
The applicant submits that she has a
bona
fide
defence in that had the respondent complied with the provisions of
sec 129 of the Act, she would have proceeded to seek debt
counselling.
This submission begs for a consideration on what a
bona
fide
defence is. While I would steer away from attempting to give a
definition as to what
bona
fide
defence means, it is however clear that the applicant at this stage
is expected to show that she has a defence which if it is proved
in a
trial, it would result in the claim against her being dismissed.
[11]
In doing this, it is not expected of her to give full details of the
defence, but to lay sufficient basis to that effect.
[13]
It is expected at this stage that the applicant shows what her
defence is to the case as contained in the particulars of claim.
While the court would rescind default judgment where it appears that
there was no compliance with sec 129 of the Act, this is not
because
that failure turns out to be a defence to a case; but because the
creditor would have failed to observe the procedure just
as one fails
to observe the Rules. There is nothing that barred the applicant
though, from seeking debt counselling provided for
in sec 129 of the
Act even before or without receiving such letter since she was aware
of those rights.
[12]
She chose
not to invoke those rights. The fact that the applicant was made
aware of these in the credit agreement does not mean
that the
respondent was no longer bound to deliver the letter in terms of sec
129 of the Act. The respondent had to show that a
letter was sent by
registered mail and reached the relevant post office, which was done
in
casu
.
The collection of the letter by the applicant is not a requirement.
For her to aver that she did not receive the letter does not
take the
matter any further.
[14]
The applicant has therefore failed to show that the respondent failed
to comply with the provision of sec 129 of the Act. She
also failed
to show that she has a
bona fide
defence against the
respondent’s claim.
1.
I therefore make the
following order
The
application is dismissed with costs.
_____________________
T.V.
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
Date
Heard: 30 January 2017
Judgment
Delivered: 23 February 2017
For
the Applicant: Mr. T Faku
Faku
Attorneys
Johannesburg
For
the Respondent: Adv JC Viljoen
Instructed
by: Stupel 7 Berman Inc
Germiston
[1]
See B1
attached to particulars of claim, page 39.
[2]
See Credit
agreement on page 23.
[3]
Sub-s. (5)
added by s. 32 (c) of Act No. 19 of 2014.
[4]
2012 (5) SA
142
(CC) para 87.
[5]
Brangus
Ranching (Pty) Ltd v Plaaskem (Pty) Ltd
[2008] 4 All SA 542
(N)
[6]
Supra
[7]
See Rule 4
(1) (a) (v) of the Uniform Rules of the High Court.
[8]
In
Brangus
Ranching (Pty) Ltd v Plaaskem (Pty) Ltd
the
court found no wilful default on the part of the applicant who did
not receive the summons; but the application for rescission
was
dismissed because the service was proper and in accordance with the
rules.
[9]
2013 (2) SA
486
(ECG) para 47-48.
[10]
See
founding affidavit on page 10 para 7.9 and MBD2 on pages 26 and 27.
[11]
Leo
Manufacturing CC v Robor Industrial (PTY) LTD t/a Robor Stewarts &
Lloyds
2007 (2) SA 1 (SCA)
[12]
See p. 26
under Clause 20 of the Credit Agreement entered between the
applicant and the respondent, where the applicant was made
aware of
the rights she has under “Debt Counselling” which is the
same information to be contained in the letter
issued in terms of
sec 129.