About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 221
|
|
Standard Bank of South Africa Limited v Matse; In Re: Standard Bank of South Africa Limited v Matse (19/41390) [2020] ZAGPJHC 221 (11 September 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 19/41390
In
the ex parte application:-
THE
STANDARD BANK OF SOUTH AFRICA
LIMITED
APPLICANT
And
MATSE
,
SIYABONGA
WILLIE
RESPONDENT
In
re
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA
LIMITED
PLAINTIFF
And
MATSE
,
SIYABONGA
WILLIE
DEFENDANT
REASONS
FOR ORDER
(HEARD
OVER ZOOM PLATFORM 11 SEPTEMBER 2020)
SNYCKERS
AJ
INTRODUCTION
1.
Section
129(1) of the National Credit Act 34 of 2005 (“NCA”) has
accounted for forests of paper and oceans of ink. This
is due partly
to the uncertainty surrounding its interpretation before the
introduction of section 129(5), effective in March 2015,
[1]
because it referred to an obligation
[2]
to “
draw
to the notice of the consumer in writing”
,
without specifying how this was to be done. This took the section on
two important journeys to the Constitutional Court,
[3]
and prompted the legislature to enact section 129(5), to decree how
the delivery envisaged in section 129(1)(a) was to occur.
2.
Section 129(5) reads:
(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.
3.
How much room is there for deviation from these dictated methods of
delivery?
4.
What happens when, as in the instant case, the “location
designated by the consumer” appears to be a non-existent
address? In such a case, there can be no effective registered mail
sent to such address, nor can there be service to an adult person
at
such address.
5.
In the instant case, the applicant sought “substituted
service”, invoking Rule 4(2), of a s129(1)(a) notice. It gave
evidence of the fact that the sheriff could not locate the address
designated by the consumer in the agreement as the
domicilium
citandi et executandi
, nor could the post office effectively
despatch registered mail notifications to any such address.
6.
Personal service was attempted, but the consumer could not be traced.
Tracing agents were employed, to no avail. Property, other
than the
domicilium
address, was identified, of which the consumer
(respondent) appeared to be the owner.
7.
Some communication had occurred with the consumer by electronic mail,
and a last known email address was therefore available.
8.
Various methods of “substituted service” were suggested,
including publication in the
Government Gazette
or in a local
newspaper, service by email to the email address, and service on a
person, or by affixing, at the address in Ivory
Park believed to be
property owned by the defendant.
LEAVE
TO BYPASS SECTION 129(5)
?
9.
The appropriateness or likely efficacy of the suggested methods
aside, the question arose whether a court could give leave that
a
s129(1)(a) notice be delivered in a manner other than, and
accordingly contrary to, the provisions of s129(5).
10.
Recourse to s65(2) of the NCA appeared futile, as this section
applied where there was no prescribed method of notification.
I
revert to this below. Section 65(1) also provides rather
peremptorily:
“
Every
document that is required to be delivered to a consumer in terms of
this Act must be delivered in the prescribed manner, if
any.”
11.
It should be noted that a literal interpretation of section 129(5)
read with s65(1), as codifying the
only
means by which
delivery under s129(1)(a) could be effected, would entail the
apparent absurdity that undeniable and effective
personal service,
if not effected at the
domicilium
address, would not be
compliant.
12.
Not only
would this be absurd, and against the general principle that personal
service is always effective and included where more
indirect methods
of service are decreed; but it would appear to me necessarily to be
contrary to the decision of the full court
of this division in
Benson
,
[4]
paragraph 19 of which makes it clear that the court regarded
effective personal notification, by means other than through delivery
of a s129(1)(a) notice by the prescribed method, as compliance with
section 129(5).
13.
The problem with following
Benson
in the instant case is
three-fold:
13.1. The method of
notification that was held to be effective in
Benson
was
personal; and in the instant case leave is sought to authorise
methods of notification that would not be personal.
13.2.
Benson
,
although expressly decided in the context of an apparent assumption
that s129(5) was applicable and governed the notifications
at
issue,
[5]
was in fact concerned with notices delivered in 2011, long before
section 129(5) was introduced into the NCA.
13.3.
The finding
in paragraph 19 was
obiter
,
in that it had already been decided that the appeal was to fail on
the basis that there had been proper compliance with the requirements
of s129(5) with respect to the registered mail postings at issue.
[6]
14.
I
am bound by
Benson
,
but am not sure it fully assists the applicant in the instant case.
Its paragraph 19 can, and probably should, be taken as authority
that
s129(5) is permissive in the sense that it does not exclude or
prohibit
more
effective and more direct forms of notification than the indirect
forms it authorizes
,
and that personal notification, in whatever written form it occurs,
suffices for s129(5) compliance.
[7]
But
Benson
cannot be extended to hold that a court may authorize other indirect
forms of notification than those specified in s129(5), that
do not
entail personal notification, as ways of complying with s129(5).
15.
An email that is proved to have been
received by the consumer would, in my view, amount to personal and
more effective written communication
than the methods prescribed in
s129(5), and, if the reasoning employed in paragraph 19 of
Benson
were to be followed, this would presumably suffice for compliance
with that section (rather than be a bypassing of the section).
But
that does not include an email sent without proof of receipt by the
consumer.
16.
Service on some unspecified adult at a
property thought to belong to the consumer, but not designated as the
chosen address as contemplated
in s129(5), would not, it would seem
to me, amount to compliance – unless actual personal receipt on
the part of the consumer
were to be proved.
17.
There is also a fundamental difference
between using
Benson
or
other methods of interpretation to avoid absurdity in
interpreting
what constitutes compliance with s129(5)
,
on the one hand, and holding that a court may authorize, whether in
advance or by way of condonation, non-compliance with the
section, on
the other hand.
18.
I
have grave reservations that a court has this power, and find it
probably does not, given the peremptory language of section 65(1)
read with section 129(5).
[8]
AN
ESCAPE
19.
The problem arises in the instant case
because the chosen
domicilium citandi
is
a non-existent address, to which registered mail cannot be
effectively sent, nor any document be delivered to an adult, as
required
by s129(5).
20.
In such a case, there is simply no chosen
address, and the provisions of s129(5) may be held not to apply. The
provisions of s65(2),
however, once again refer to a manner chosen by
the consumer, and do not cater for the situation where the consumer
designated
a non-existent
domicilium
and
then cannot be traced to choose a method. Section 65(2) provides as
follows:
(2) If no method
has been prescribed for the delivery of a particular document to a
consumer, the person required to deliver
that document must-
(a)
make
the document available to the consumer through one or more of the
following mechanisms-
(i)
in
person at the business premises of the credit provider, or at any
other location designated by the consumer but at the consumer's
expense, or by ordinary mail;
(ii)
by
fax;
(iii)
by
email; or
(iv)
by
printable web-page; and
(b)
deliver it to the consumer in the manner chosen by the
consumer from the options made available in terms of paragraph (a).
21.
It would seem to me that in the
circumstances, I must, or at least may, regard the chosen address to
be fatally defective for the
purposes of s129(5) and, instead of
purporting to authorize a deviation from the section that does not
entail personal service,
create the most sensible constructive
domicilium
for
purposes of the section, to the extent that it still applies in the
circumstances, and, in the alternative, deem the section
simply not
to apply and apply a constructive choice on the part of the consumer
of the email method specified in s65(2)(iii).
22.
In these circumstances, I granted leave for
a s129(1)(a) notice to be served by doing so
both
at the Ivory Park property on a person
apparently in charge over 16 years of age
and
by utilizing the specified email
address, affording the respondent one month from the performance of
the last act within which to
respond.
Frank
Snyckers
Acting
Judge
11
September 2020
[1]
By the National Credit Amendment Act 19 of 2014.
[2]
Although s129(1) employs the term “may” in respect of
the notification it envisages, section 130 makes it clear that
the
“delivery” it says s129(1) entails is a prerequisite for
instituting debt-enforcement legal process under a regulated
Credit
Agreement.
[3]
Sebola
and Another v Standard Bank of South Africa Ltd and Another
2012
(5) SA 142
(CC)
and
Kubyana
v Standard Bank of SA Ltd
2014
(3) SA 56 (CC).
[4]
Benson
and Another v Standard Bank of South Africa (Pty) Ltd and
Others
2019
(5) SA 152 (GJ).
[5]
See paras 10, 11 and 13.
[6]
Paragraph 13. This was despite the fact that s129(5) was not in
existence when the notification at issue was sought to be delivered
by registered mail.
[7]
This concededly strains the interpretation of s168(a), which
determines that delivery to the person in question is effective
service of a document “unless otherwise provided in this Act”.
Section 129(5) read with section 65(1) certainly appears
at face
value to be such an instance where the general permission in s168(a)
would
not
apply.
[8]
See generally the discussion in
Vlok
NO & Others v Sun International South Africa Ltd & Others
2014
(1) 487 (GSJ) paras [37] to [53].