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[2010] ZAWCHC 621
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FirstRand Bank Ltd t/a Wesbank v Weltman -Shmaryanhu, FirstRand Bank Ltd t/a McCarthy Finance a division of Wesbank v Weltman -Shmaryanhu (18229/2010, 18230/2010, 18243/2010) [2010] ZAWCHC 621 (10 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
18229/2010
In
the matters between:
FIRSTRAND
BANK LTD t/a WESBANK
….........................................................................
Plaintiff
and
MRS
ANINA WELTMAN-SHMARYAHU
…......................................................................
Defendant
18230/2010
FIRSTRAND
BANK LTD t/a MCCARTHY
FINANCE
a division of WESBANK
….................................................................................
Plaintiff
and
MRS
ANINA WELTMAN-SHMARYAHU
…......................................................................
Defendant
18243/2010
FIRSTRAND
BANDK LTD t/a WESBANK
…......................................................................
Plaintiff
and
MRS
ANINA WELTMAN-SHMARYAHU
…......................................................................
Defendant
JUDGMENT
HANDED DOWN THIS FRIDAY, 10 DECEMBER 2010
CLEAVER
J
[1]
The defendant seeks leave to appeal against the judgment which I
handed down on 25 October 2010 in terms whereof summary judgment
was
granted against the defendant.
[2]
Four grounds were advanced in respect of which it was submitted that
another court might reasonably come to a different conclusion
from
that which I arrived at.
(i)
The
method of delivery of the s 129 notice.
It
was submitted on the strength of the
Rossouw
judgment
1
that
service of the s 129 notice by the deputy sheriff could never
constitute compliance with the provisions of s 129 if another
method
of delivery had been chosen by the defendant in the underlying
contract.
In
my view this submission, so broadly stated, cannot be correct. The
intention of the legislature was to ensure as far as possible
that
the s 129 notice reaches the debtor, but as was pointed out in
Rossouw,
'the legislature's grant to the consumer of a right to choose the
manner of delivery inexorably points to an intention
to place the
risk of non-receipt on the consumer's shoulders'.
2
If
it is established that a debtor has received the notice, he or she
would clearly not be able to avoid the consequences of such
receipt
by averring that the chosen method of delivery, or when no method
had been chosen, one of the methods prescribed in s
65 (2), had not
been utilised. In the matter before me I concluded, for the reasons
set out in my judgment that the defendant's
bare denial that she
received the notice was insufficient and that her bona fides could
therefore not be accepted in respect
of that issue. I am not
persuaded that another court might reasonably come to a different
conclusion.
(ii)
The
cancellation of the agreement.
Defendant's
counsel submitted in effect that even though the notice given to the
defendant complied with the provisions of s 129
in its form, a
further notice recording cancellation of the agreement was necessary
before the plaintiff could issue summons
for the return of the
vehicle. I found that cancellation of the agreement was conveyed to
the defendant, at least when the summons
was served on her, and I am
not persuaded that there is a reasonable possibility that another
court might reasonably come to
a
different view.
j
(iii)
The
citation of the plaintiff.
This
was dealt with fully in my judgment, but the defendant's counsel
raised before me an issue which had not been raised on the
papers,
namely that the agreement concluded between the parties might be
unlawful in terms of s 90 (2)(a)(ii) if it deceives
the debtor. I
confess that I have difficulty in following this point. The point
appears to be that while the plaintiff is cited
as Firstrand Bank
Limited t/a Wesbank, two pages of the document record the agreement
as being with Wesbank. As I mentioned in
my judgment, on these two
pages it is also made clear that Wesbank is a division of Firstrand
Bank Limited.
(iv)
Counsel
submitted that it was clear from the opposing affidavit that the
defendant
was not endeavouring to buy time and that I should
glean from the affidavit that she has
a bona fide defence. Apart
from a bald denial that she was in arrear in terms of any
amount
(I did not mention this in my judgment) the furthest she goes to put
up any form
of defence is to refer to the fact that since the
time she concluded the agreement with
the plaintiff, there had
been changes in the interest rate applicable to the
balance
outstanding under the agreement.
Other
aspects of the defence put up were dealt with in the judgment.
I
am not persuaded that there is a reasonable possibility that another
court might come
to
a different view in the matters raised in the preceding two
sub-paragraphs.
[3]
The application for leave to appeal is refused with costs.
R B CLEAVER
1
Benjamin
Rossouw and Another v FirstRand Bank Limited t/a FNB Homes
Supreme
Court cf Appeal case no 640/2009 delivered on 30 September 2010.
2
At
para 31.