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[2010] ZAWCHC 463
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Standard Bank Of South Africa Ltd v Johnson and Another (5106/2010) [2010] ZAWCHC 463 (9 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 5106/2010
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
….........................................
Plaintiff
and
DUDLEY
WILLIAM JOHNSON
…..................................................................
First
Defendant
ERIKA
PATRICIA JOHNSON
…...............................................................
Second
Defendant
JUDGMENT
DELIVERED ON 9 SEPTEMBER 2010
1.
This is an application for summary judgment which served before me
in ordinary Motion Court. I heard argument and reserved
judgment.
2.
The plaintiff, Standard Bank of South Africa Limited, issued summons
on 21 April 2010 against the defendants, claiming an amount
of R1
361 915,62, being the balance of the principal debt together with
finance charges thereon. This is in respect of monies
lent and
advanced by the plaintiff to the defendants under mortgage
agreements pursuant to which two mortgage bonds were registered
in
favour of the plaintiff.
3.
It is alleged that the defendants are in default of their
obligations and that such default constituted default as
contemplated
by section 130 of the National Credit Act, No. 34 of
2005 (the
National Credit Act). The
plaintiff is a registered credit
provider in terms of
section 40
of the
National Credit Act, and
the
defendants are consumers as defined in
section 1
of the
National
Credit Act.
4.The
plaintiff pleads that it had given due and proper notice on 10
February 2010 in terms of
section 129
of the
National Credit Act,
that
the defendants had not responded to such notice, and the time
limits referred to in
section 130
of the
National Credit Act having
elapsed, the plaintiff proceeded to claim payment of the aforesaid
amount plus interest thereon, together with an order declaring
certain immovable property executable, and costs on the attorney and
client scale.
5.
The defences raised by the defendants emerged as follows from their
opposing affidavit to the summary judgment application.
6.
It was only on 5 March 2010 that Mr Johnson collected the registered
mail addressed to him by the plaintiff, containing the
section 129
notice. Mr Johnson states that the 10 day period whereafter the
plaintiff was at liberty to approach the court, had already elapsed
by that time. He did not fully comprehend the
section 129
notice and
it was his understanding that he should only refer the matter
"to
resolve any dispute or to develop a plan
that
is acceptable to both vou and Standard Bank
to
bring your payments up to date".
He
states that, given his financial circumstances, he had
"absolutely
no hope of developing a plan that would be acceptable to Standard
Bank".
7.
On 11 March 2010, five days after receipt of the registered mail
item, the plaintiff issued summons. The summons was served
on the
first defendant on 23 March 2010. He then contacted a Ms Louw at the
plaintiff to request a meeting. Though she offered
to send him a
budget form to complete, she pointed out that
"it
was actually hopeless forme to try this route".
8.
On 30 March 2010 he again approached Ms Louw as he had not yet
received the budget form. She then sent it to him and he immediately
made an appointment with a debt counsellor, Ms Nadia Mathews, to
determine if he was able to prepare a proposal to the satisfaction
of the plaintiff.
9.
On 30 March 2010 the debt counsellor accepted his application for a
debt review as prescribed by
section 86
of the
National Credit Act.
10.
He
states that It was only then that he became aware of the
"actual
legal position",
and
the functions and powers that a debt counsellor has in terms of the
National Credit Act.
11.
It
was explained to him that ultimately a Magistrates' Court would
have had to make an order restructuring the debt, which order would
be binding on all the credit providers. The first defendant states
that this position was not clear and ascertainable from the
section
129
notice
"which
expressly stated that resolving this dispute or developing a plan
was contingent upon the plaintiffs approval, which
is clearly not
the case".
12.
Since he was accepted under debt review, he had at all relevant
times duly effected the monthly payments to the payment distribution
agency as instructed by his debt counsellor.
13.
To date, so the first defendant states, the plaintiff had not
attempted to negotiate an acceptable debt rearrangement, or
made any
counter proposals to his debt counsellor in order to negotiate an
acceptable debt arrangement.
14.
The debt counsellor had also instructed an attorney to issue a debt
review application in terms of
section 86
of the
National Credit Act
- this will be done within 60 business days after the date on which
he had applied for a debt review.
The
first defence
-
the
action is premature
15.With
reference to
FirstRand
Bank Ltd v Dhlamini
(2010)
JOL 25158
(GMP), the defendants contend that, having only received
actual
notice
of the
section 129
notification on 5 March 2010, the plaintiff had
prematurely instituted the action five
1
days later - it ought to have waited a further five days.
Dhlamini
followed
ABSA
Bank Ltd v Prochaska t/a Bianca Cara Interiors
2009
(2) SA 512
(D&CLD).
16.
In
the first instance it is not clear to me that
ABSA
Bank Ltd v Prochaska t/a
Bianca Cara Interiors
require
actual
notice
- where Naidu AJ concluded perhaps on a contradictory note as
follows at paragraph [55]
2
"The
credit provider is required, in my view, to bring the default to the
attention of the consumer in a way which provides
an assurance to a
court, considering whether or not there has been proper compliance
with the procedural requirements of
ss 129
and
130
, that the default
has indeed been drawn 'to the notice of the consumer', 'Notice',
according to the New Oxford Dictionary, means
'attention,
observation'. In a case where the consumer has chosen an address in
the credit agreement as the domicilium at which
all notices, demands
or communications may be sent, and the credit provider has accepted
that address as the address chosen by
the consumer, then the credit
provider should ensure, if the notice is sent by mall, that the
address to which the notice is
posted is in every respect precisely
the same as that accepted by the credit provider in the credit
agreement."
17.
In
terms of the both the first and second mortgage bonds the defendants
had chosen 100 Chukker Road. Kenwyn, Lansdowne as the
address at
which letters, statements and notices may be delivered by registered
post and accepted that any letters and notices
posted to this
address by registered mail
"will
be regarded as having been received within 14 days after posting.'
3
In
terms of the plaintiffs
"terms
and conditions of loans secured by mortgage bonds"
the
defendants agreed that any notice sent by prepaid registered post
will be deemed to have been received on the 5
tn
business
day after posting.
4
Accordingly, in terms of the mortgage bonds the defendants are
regarded as having received notice by 24 February, and in terms
of
the standard terms by 17 February.
18.
The 10 day period
5
stipulated in the letter as the
"date
of it being delivered to you or sent by registered mail"
accordingly
commenced on 24 February and expired on 10 March 2010. The action,
accordingly, would not have been instituted prematurely
on 11 March
2010
6
if actual notice was not required.
19.
The question which arises is whether
section 129
requires actual
notice to be given to the defendants.
20.
In
Starita
(aka Van Jaarsveld) v ABSA Bank Ltd and Another
2010
(3) SA 443
(SG). Gautschi AJ pointed out that Murphy J, in
Dhlamini
(at
para 27) had placed emphasis on the fact that
section 129(1)(a)
requires the credit provider to
"draw
the default to the notice of the consumer in writing"
and
that he assumed that the legislator consciously did not use the
words
"deliver"
or
"serve"' in
section 129(1)(a).
21.
Gautschi AJ disagrees with this for two reasons - first that the
expressions
"giving
written notice", "advise in writing", "give
notice", "deliver"
and
"serve"
are
used indiscriminately and without precision.
"Accordingly,
undue emphasis should not be placed on the actual words used."
22.
The second reason was that the various expressions used in
section
129(1)
are all reduced to the single word
"delivered'
in
section 130(1)(a)
u
which
is in my view the clearest indication (if one can be found) of the
legislature's intention with regard to the fate of the
notice."
23.
Gautschi AJ formulated as follows in para 18.1
"It
is true that
section 129
requires the credit provider to "draw
the default to the notice of the consumer in writing" and to
"first [provide]
notice to the consumer", which would seem
to indicate more than simply dispatching a notice, but rather to
require that
such notice be received by the consumer. One might even
add that the word "propose" (to the consumer) in
section
129(1)(a)
and the expression "give notice" in
section
86(10)
have a similar connotation. These requirements are all
encapsulated in the word "delivered" as used in
section
130(1)(a).
"
24.
In
Munien
v BMW Financial Services (SA) (Ptv) Ltd and Another
2010
(1) SA 549
(KZN) (para 12) Waliis J, came to the conclusion that the
Minister had prescribed the manner of delivering documents to a
consumer
in terms of the
National Credit Act and
that the method of
delivery must be in accordance with the provisions of the definition
of
'delivered"
in
the regulations, rather than in terms of
section 65(2)
of the
National Credit Act.
7
25
.
Wallis
J's reasoning did not appeal to Gautschi AJ in
Starita
.
Gautschi
AJ
remarked (para. 18.4) as follows in regard to the aforesaid
conclusion reached in
Munien
(supra):
"It
is fallacious, in my view, to apply a definition in the Regulations
to an expression used in the Act (the
National Credit Act 34 of
2005
). The Act does not permit the Minister, in making Regulations,
to define expressions in the Act; the Minister is not empowered
to
dictate matters in the domain of the Legislature. The definition of
the word 'delivered' in the Regulations also does not
purport to
contain a 'prescribed manner' for delivery. It is only a definition
and simply indicates the meaning to be ascribed
to the word
'delivered' as used in the Regulations. In my view, therefore, no
regard can be had to the definition of the word
'delivered' in the
Regulations in interpreting sections of the Act."
26.
Gautschi
AJ, however, came to same conclusion as did Wallis J, namely that
actual receipt of the notice is not required. He rather
relied on
the provisions of
section 168
of the
National Credit Act
8
to
state
In
my view there is no substantial difference between the words
"delivered" and "served". In addition, whilst
the words "delivered", "deliver" and "delivery"
are used often in the Act I have searched in vain
for any reference
to the words "served" or "serve". Section 168 is
therefore applicable to a notice which
has to be "delivered",
which includes a notice in terms of section 129(1) in view of the
wording of section 130(1)(a).
In terms of section 168, the notice
will have been properly served (delivered) when it has been, inter
alia, sent by registered
mail to that person's last known address."
27.
Wallis J. however, also found in
Munien
that
where the consumer had chosen the method and address for delivery,
and the credit provider then delivered the notice in the
manner
chosen by the consumer, it would, be irrelevant whether the notice
actually come to the attention of the consumer (at
par 22).
28.
Munien
was
followed
9
in
First
National Bank Ltd v Rossouw and Another
(unreported.
GNP. case number 30624/2009, delivered on 6 August 2009) (Ellis AJ);
The
Standard Bank of South Africa Ltd v Mellet & Another
[2009]
ZAFSHC 110
(30 October 2009) (Musi JP) and
The
Standard Bank of South Africa Ltd v Rockhill & Another
[2010]
ZAGPJHC 10 (11 March 2010) (Epstein AJ);
Firstrand
Bank Ltd v Bernardo and Another
(EC
- PE) (case number 680/09) and
Firstrand
Bank Ltd v Van den Berg
EC
- PE 1 September 2009 (case number 1662/09).
29.In
this division
Munien
received
carefully scrutiny by Davis J in
ABSA
Bank Ltd v Kritzinger and Another; Standard Bank Ltd v Pienaar and
Another
(handed
down on 16 October 2009 under case no 6474/2009 and
7355/2009).
Davis J found at para [13] - [14]
"Wallis
J held that, while section 65(1) does not contain a cross reference
to the regulations, the very purpose of section
65(1) captured in
the phrase "delivered in the prescribed manner" envisages
that a prescribed manner would be set out
in regulations. The lack
of statutory specificity to regulations is not sufficient reason
alone to justify an argument that the
regulations are inapplicable
in this case. See Howick District Land Owners Association v Umngeni
Municipality
2007 (1) SA 206
(SCA) at para 19-20 where Cameron J A
(as he then was) provides support for this conclusion.
I
am therefore in full agreement with the conclusion of Wallis J
namely:
The
Minister has prescribed the manner of delivering documents to a
consumer in terms of the Act and that the method of delivery
must be
in accordance with the provisions of the definition of "delivered"
in the regulations rather than in terms
of section 65 (2).' para 12
"
30.
Not
only do I agree with Davis J, but I am bound by to follow him.
Accordingly I find therefore that the manner in which the plaintiff
had delivered the notice had complied with the requirements of
section 129; and, as a consequence, I find that the summons had
not
been issued prematurely.
The
wording of the section 129 notice
31.
The defendants further contended that the section 129 notice did not
properly comply with the provisions of the
National Credit Act as
it
had inserted the words
"that
is acceptable to Standard Bank",
which
caused, so the first defendant stated, a material misconception as
to the nature and functions performed by a debt counsellor.
10
32.
Section 129
of the
National Credit Act provides
as follows
"129
Required procedures before debt enforcement
(1)
If the consumer is in default under a credit agreement, the credit
provider-la) 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"
(my
emphasis)
33.
It appears that the defendants object to the words
"that
is acceptable to Standard Bank"
in
the notice, and that the first defendant was under the
misapprehension that the plaintiff's acceptance would always be
required.
34.
I pause to point to point out that the letter is clear that on
receipt of the letter, the first defendant could refer the
matter to
any one of either the offices of the plaintiff (number supplied),
the National Credit Regulator (number supplied),
a debt counsellor
(in respect of whom a number would be supplied by the National
Credit Regulator), an alternative dispute resolution
agent (again
the National Credit Regulator would supply the number), the Consumer
Court (again the National Credit Regulator
would supply the number),
or the Ombudsman for Banking Services (number supplied),
"to
resolve any dispute or to develop a plan that is acceptable to both
you and Standard Bank to bring your payments up to
date."
35.
In this context
section 129(1)(a)
contemplates that the notice
should propose that the matter be referred with the intent that the
parties resolve any dispute
or develop and agree on a plan to bring
the payments up to date. The letter follows the wording of the
section and, if any thing,
makes it clear that the plan must be
acceptable to
both
the
defendants and the plaintiff.
36.
Nor does the first defendant convincingly state why he had not
approached any of the other persons or entities on receipt
of the
letter.
37.
In the premises this defence also fails.
The
section 88(3)
defence
-
notification
of a pending debt review
38.
The
first defendant had applied for a debt review and the requisite
Form
17.1 notices had been sent, also to the plaintiff on 30
March 2010. The firstdefendant submitted that in term of
section
88(3)
11
anc" HREF="#sdfootnote11sym">
11
of the
National Credit Act, a
credit provider who has received a
notice in terms of
section 86(
4)(b)(i)
12
of
the
National Credit Act,
"may
not exercise or enforce by litigation or other judicial process any
right or security under that credit agreement"
until
certain conditions are met.
39.
Section
86(2)
of the
National Credit Act, however
, provides that:
"An
application
[for
debt review]
in
terms of this section may not be made in respect of, and does not
apply to, a particular credit agreement if, at the time of
that
application the credit provider under that credit agreement has
proceeded to take steps contemplated in
section 129
to enforce that
agreement."
40.
This
section must, in the instant case, be considered in conjunction with
the
provisions of
section 130(3)(c)(i)
of the
National Credit Act
which
provides that:
"(3)
Despite any provision of law or contract to the contrary, in any
proceedings commenced in a court in respect of a credit
agreement to
which this Act applies, the court may determine the matter only if
the court is satisfied that -
(c)
the credit provider has not approached the court -
(i)
during the time that the matter was before a debt counsellor,
alternative dispute resolution agent, consumer court or the
ombud
with jurisdiction; or..."
41.
In
BMW
Financial Services
(SA)
(Ptyj
Ltd v Donkin
2009
(6) 63 (KZD) Wallis J (at par [10]) explained that sections 86(2)
and 130(3)(c)(i) are designed to ensure that there is no
overlap
between the processes being followed under debt review (in terms of
section 86) and the processes that flow from a creditor
seeking to
enforce a debt at the time when no debt review process is in place.
In the latter instance the creditor is obliged
to first give notice
in terms of section 129(1)(a). The notice inviting the debtor to
refer the credit agreement to a debt counsellor,
or other referee,
has as its purpose either to resolve any dispute in relation to that
agreement, or to reach agreement on a
plan that will enable the
debtor to bring the payments under that agreement up to date. It is
self-evident that this is a process
entirely distinct from the
general debt review under section 86 which depends on the debtor
being over-indebted. As Wallis J
points out at paragraph [11], in
each instance the prior process takes precedence and the other is
excluded until it is complete.
42.
The first defendant states that the application for debt review was
only made on 30 March 2010, when the requisite form 17.1
notice was
sent by the debtcounsellor to all creditors, including the
plaintiff. By then the plaintiff had already instituted
action (on
11 March 2010)
13
and service had already taken place (on 23 March).
43.
In the premises the first defendant had not applied for a debt
review before the present action commenced and, accordingly
section
86(2) applies so the credit agreements (the two mortgage bonds) are
excluded from the debt review process.
44This
is dispositive of this defence.
The
section 85 defence
-
over-indebtedness
45.
The
defendants requested leave to bring an application in terms of
section
85
of the
National Credit Act. Section
85 provides as
follows:
"In
any court proceedings in which a credit agreement is being
considered, if it is alleged that the consumer under a credit
agreement is over-indebted, the court may -
a)
refer the matter directly to a debt counsellor with a request that
the debt counsellor evaluate the consumer's circumstances
and make a
recommendation to court in terms of
section 86(7)
; or
b)
declare that the consumer is over-indebted, as detenwined in
accordance with this Part, and make an order contemplated in
section
87
to relieve the consumer's indebtedness."
46.
Masipa
J in
Standard
Bank of South Africa Ltd v Panaviotts
2009
(3) SA 363
(W) stated the following at para 24:
'[24]
The powers given to the court under
s 85
ahse if it is alleged that
the consumer under a credit agreement is over-indebted. Clearly, the
mere allegation of over-indebtedness
can never be sufficient The
test would be that such over-indebtedness should be established on a
balance of probabilities. This
is supported by
s 79(1)
which refers
to the preponderance of available information at the time a
determination is made.'
47.
Masipa J held (at paragraph 19) that the effect of
section 85(a)
of
the
National Credit Act is
that a High Court, if it refers the
matter directly to a debt counsellor, would have to receive the debt
counsellor's recommendation
and deal with the matter, as would a
magistrates' court making an order in terms of
s 86(7)(c).
48.
As Masipa J pointed out
"(h)aving
failed to avail himself or herself the opportunity to voluntarily
approach a debt counsellor prior to litigation,
it follows that the
consumer must at least explain that failure to the court in asking
the court to exercise its discretion."
(at
paragraph [28]). It is for the consumer who raises the defence of
over-indebtedness to establish on a balance of probabilities
that he
or she is over-indebted as envisaged in the section
(
BMW
Financial Services (SA) (Ptv) Ltd v Mudalv
case
number 16975/09 KZN per Wallis J at paragraph [26]).
49.
In this regard the defendants submitted that
(a)
It
would be detrimental to other credit providers were judgment to be
granted.
(b)
the debt owing to the plaintiff will be repaid within 200 months.
(c)
given the current economic climate, should the property be sold in
execution, it will not be auctioned at a market-related
price and a
large shortfall may result This in turn would increase the
defendant's expenses as they would then have to rent premises
and
that would reduce the amounts available for redistribution to his
creditors
50.
The debt counsellor, in turn, stated that
"the
consumer was over-indebted having regard to her
(sic)
financial
means, prospects and obligations"
as
the monthly essential living expenses (R 2 500,00) and monthly debt
obligations (R19 461,46) exceeded the monthly income of
R 8 500,00
by R 13 461,46. The total debt amounts to some R 1 473 334,89.
51.
No explanation is proffered for the failure to have approached a
debt counsellor - that is even prior to the receipt of the
section
129
notice - given the self-confessed financial predicament in which
the defendants found themselves.
52.
Mr Rabie, who appeared for the plaintiff contended that there were
no facts disclosed to assist the Court in determining whether
the
alleged claim of over-indebtedness is
bona
fide.
In
this regard he pointed out that
(a)
Though it is stated that the first defendant is self-employed, no
disclosure is made as to the nature of his business, and
what the
future prospects thereof are;
(b)
No information is furnished with regard to the R 8 500,00 income -
is it the income of the first or second defendant? (the
application
to the debt counsellor may have been made by the second defendant as
reference is made to "her" financial
situation). Is the
income constant, or does it fluctuate?
(c)
No disclosure of any assets is made, neither by the defendants nor
of the business conducted by the first defendant
(d)
It is not possible to asses the monthly obligations without also
knowing the amounts outstanding.
53.
In the premises I agree with the submission made by Mr Rabie. namely
that there are very little, if any, facts to support
the statement
that the defendants are over-indebted. A factual basis is required
in order to support for what is little else
than a conclusion drawn
by the first defendant and the debt counsellor
14
There is, accordingly no basis on which a court would exercise its
discretion in terms of
section 85
of the
National Credit Act.
54.
As
Wallis J had pointed out in Donkin, the grant of relief under
section 85
is discretionary. I am of the view that precious little
has been said which would permit me to exercise any discretion in
favour
of granting any relief under
section 85
(or for coming to the
view that another court would grant such relief in due course).
55.
In the premises this defence, also fails.
The
certificate of balance
56.
The certificate of balance was ex
facie
the
summons issued in term of clause 6 of the two mortgage bonds. This
clause provides that a certificate, signed by any of the
plaintiffs
managers, will on its mere production, be
"sufficient"
proof,
unless the contrary is proven, of the amount due to the plaintiff,
the fact that the debt is due and payable, the rate
of interest
payable and the date from which the interest is calculated.
"Sufficient
proof
is
the same as
prima
facie
proof
(S
v Moronev
1978
(4) SA 389
(A) at 406 F -H).
57.
Mr Rabie, who appeared for the plaintiff placed reliance on the
obiter
remark
by Moosa J in
Nedcor
Bank Ltd v Lisinfo 61 Trading (Ptv) Ltd
2005
(2) SA 439
(C) at 438 F - G namely that where the
causae
stipulated
in the bond are so wide to include both liquidated and unliquidated
claims then
"(t)he
certificate of indebtedness is possibly a mechanism to overcome the
problem, as it would have been phma facie proof
of the amount owing
by the respondent to the applicant and could have evidenced a
liquidated amount in money." (There
was
no such certificate before Moosa J).
58.
The certificate upon which the plaintiff relies, meets these
requirements.
59.
No defence was raised to the amount claimed by the plaintiff. In
fact, in the affidavit of the debt counsellor, the amount
owing to
the plaintiff is reflected to be R 1 385 992,10, that is slightly
more than the amount claimed by the plaintiff.
60.
Mr Zazeraj who appeared for the defendants, contended that the loan
agreement itself was not placed before the court. This
was not
raised as a defence in the opposing affidavit and I am not sure that
this is correct - the summons refer to monies lent
and advanced
under the mortgage bonds. Annexed to those are the plaintiffs
"terms
and conditions of loans secured by mortgage bonds."
In
my view the summons does comply with Uniform Rule of Court 18(6)
which requires a true copy of the written agreement, or of
the part
thereof relied upon, to be annexed to the summons. There is no
allegation in the opposing affidavit that there are other
relevant
terms (whether in writing or oral).
61.
The defences raised by the defendants do not meet the test required
to stave of summary judgement.
62.
It follows that the plaintff is entitled to summary judgment as
follows -summary judgment is granted against the defendants
for:
(a)
Payment of the sum of R1 361 915,62
(b)
Interest on the amount claimed in (a) above calculated from 8
February 2010 to date of payment at the interest rate prevailing
from time to time on the mortgage bond(s), which interest rate on 8
February 2010 was 10.50% per annum, such interest to be capitalised
monthly in arrear;
(c)
An order declaring erf 59956 Cape Town at Lansdowne. in the City of
Cape Town Cape Division. Province of the Western Cape
situate at 100
Chukker Road, Kenwyn, Lansdowne executable for the said sums;
(d)
Costs
of suit on the scale as between attorney and client.
S Oliver, AJ
9
September 2010
1
As
will be set out below, it is in fact six days.
2
I
am mindful of the careful analysis by Murphy J in
Dhlamim
of what
Naidu AJ had in fact held
3
Clause
14.3 of both the first and second mortgage bonds
4
Clause
17.4 of the second mortgage bond
5
Section
130(1)(a)
stipulates them to be business days
6
see
Standard
Bank of SA Ltd v Rockhill
2010
JDR 0243 (GSJ) 11 March 2010. per Epstein J
7
65
RIGHT
TO RECEIVE DOCUMENTS
(1)
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.
(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 e-mail; 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).
8
168
Serving documents
Unless otherwise
provided in this Act. a notice, order or other document that in
terms of this Act., must be served on a person
will have been
properly served when it has been either -
(a)
delivered
to that person; or
(b)
sent
by registered mail to that person's last known address."
9
I
have not had the benefit of gaining access to all of these judgments
10
See
paragraphs 6 and 11 above
11
"(3)
Subject to section 86 (9) and (10).
a
credit
provider who receives notice of court proceedings contemplated in
section 83 or 85, or notice in terms of section 86 (4)
(b) (i), may
not exercise or enforce by litigation or other judicial process any
right or security under that credit agreement
until
(a)
the
consumer is in default under the credit agreement; and
(b)
one
of the following has occurred:
i)
An event contemplated in subsection (1) (a) through (c); or
(ii)
the consumer defaults on any obligation in terms of a rearrangement
agreed between the consumer and credit providers, or
ordered by a
court or the Tribunal"
12
86.
Application
for debt review.-(l) A consumer may apply to a debt counsellor in
the prescribed
manner and form to have the consumer declared
over-Indebted.
(2) An application in
terms of this section may not be made in respect of and does not
apply to, a particular credit agreement
if. at the time of that
application, the credit provider under that credit agreement has
proceeded to take the steps contemplated
in section 129 to enforce
that agreement.
…
......
(4) On receipt of an
application in terms of subsection (1), a debt counsellor must-
…
.......
(b) notify, in the
prescribed manner and form -
(i) all credit
providers that are listed in the application: and ….”
13
I
need not on these facts consider whether the legal proceedings had
commenced with the delivery of the section I29(1)(a) notice
14
See
for instance
Die
Pros (Ptv) Ltd and Another v Telefon Beverages CC and Others
2003
(4) SA 207
(C) as to the requirement to set out 'primary facts' from
which 'secondary facts' or conclusions may be drawn As Van Reenen J
pointed at at paragraph [28]
'Secondary
(acts, in the absence of the primary tacts on which they are based,
are nothing more than a deponent's own conclusions
(see
Radebe
and Others v Eastern Transvaal Development Board
1988
(2) SA 785
(A) at 793C - E) and accordingly do not constitute
evidential matenai capable of supporting a cause of action.''