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[2010] ZAGPPHC 3
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Imperial Bank v Kubheka (28713/08) [2010] ZAGPPHC 3 (4 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
PRETORIA
Date:
04/02/2010
Case
Number:28713/08
I
n
the
matter
between
;
IMPERIAL
BANK Plaintiff
and
AUDREY
BUSISIWE KUBIIEKA Defendant
JUDGMENT
Judgment
Reserved:07/12/2009
Judgment
handed down: 04/02/2010
LEGODIJ
1.
This is an application for rescission of default judgment which was
granted against the defendant on the 10 October 2008. The
applicant
will be referred to as being the defendant in the main action and the
respondent as the plaintiff.
2.
On the 21 December 2004, the plaintiff and the defendant concluded
Installment Sale Agreement governed by the provisions of National
1.
2.
Credit
Act, in terms whereof the plaintiff assisted the defendant
financially in the purchase of a certain motor vehicle.
3.
The repayment on the funds advanced on behalf of the defendant was
for a period 53 installments at R1 210.08 per month starting
from the
1 February 2005, the final payment being the 1 July 2009.
4.
As on or about the 7 April 2008 defendant fell in arrears in an
amount of R1 276.15. This prompted the plaintiff to issue a notice
as
envisaged in section 129 of Act 34 of 2005. The notice in a form of a
letter is dated the 7 April 2008. It is said to have been
sent to the
defendant by registered post.
5.
When the plaintiff received no response to the notice, on the 11 June
2008 a further letter was addressed to the defendant in
which a
notice of cancellation of the agreement was given.
6.
On the 17 June 2008, summons were issued against the defendant. Of
importance, in terms of which the plaintiff claimed for the
return of
the motor-vehicle forming the subject of the agreement. It was also
prayed that the Sheriff be authorised and requested
to attach, seize
and hand over to the plaintiff the said motor-vehicle. The plaintiff
further prayed for the forfeiture of the
instalment payments already
made by the defendant.
7.
The summons were served on the 4 July 2008 upon one Nhlanhla,
described on the return of service as a member of a household at
the
place of residence of the defendant.
8.
When there was no reaction to the summons, the plaintiff obtained
default judgment on the 10 October 2008. Subsequently, the
order as
per default judgment was executed on the 25 November 2008 when the
Sheriff attached and handed over the vehicle to the
plaintiff.
9.
On the 2 December 2008, the plaintiff's attorneys informed the
defendant's attorneys of the amount still owing which were set
out as
follows:
"Capital
outstanding : R10 736-78
Tracing/attachment
costs : R3000 -00
Attorneys'
costs : R4145 -39
Sheriff's
fees : R1944-95
Subtotal : R19
827-12
Less
paid : R8 000-00
AMOUNT
PAYABLE : R11 827-12"
10.
The defendant's attorneys in the letter of the 2 December 2008 were
further informed that the plaintiff will not reinstate the
cancelled
agreement and the vehicle will only be returned on settlement of the
aforesaid amount.
11.
The response to the letter of the 2 December 2008 is contained in the
letter of the 3 December 2008, and can be summarised as
follows:
11.1
that
as on the date on which the summons were instituted, that is, the 17
June 2008, the defendant was in arrears
in the amount
of R3 741.67,
11.2 that
on the 25 June 2008, and before the service of the summons on the 4
July 2008, the defendant paid the sum of R4000,
11.3 that
further payments were made as follows:
11.3.1
24 July 2008= R1200
11.3.2
23 September 2008= R1600
11.3.3
31 October 2008 = R2000
11.3.4
27 November 2008= R8000
12.
The defendant's attorneys then concluded in the letter by requesting
immediate return of the motor-vehicle. In response thereto,
the
plaintiff's attorneys referred to notice in terms of section 129 to
which the defendant did not respond. It was further indicated
that
the agreement has been cancelled and that the amount claimed in the
summons was for the whole amount outstanding. Lastly,
that the
vehicle would be released upon payment thereof, including legal costs
and costs for recovery of the motor-vehicle.
13.
On the 10 February 2009, the present application for rescission of
judgment was launched. In the application, the applicant
also prayed
for condonation of the late filing of the application. The failure to
timeously launch the application for rescission
of default judgment
is described in the founding affidavit as follows:
"12.1
I hereby confirm that the reason for the delay in this matter is due
to the fact that my attorneys and Ihave been attempting
to
determine what the correct position of this matter as well as to
attempt to settle the matter without going to court for
an
application for rescission in order for me to set out the full facts
to this Honourable Court."
12.2
But to date, no clarity on the situation has been achieved, nor has
the matter become settled and as a result, I am now
forced to
bring a High Court application in order for me to rescind the orders
granted and to determine what the position is.
13.
I therefore request this Honourable Court to condone the late filing
of this application as I amnot delaying the matter deliberately
but that I was attempting to obtain all the facts, and to settle the
matter without approaching the Honourable Court unnecessarily
to make
a full disclosure to this
Honourable
Court.
14.
For
the following reasons, I am prepared to condone the late filing of
the application for rescission:
14.1
firstly,
the delay considered from the date on which the motor-vehicle was
attached and removed from the applicant, all up to February
2009
coupled with payments of the 31 October and 27 November 2008, is not
unreasonably inordinate.
14.2
secondly, efforts to resolve the matter coupled with payments dispel
the attitude of delaying tactics on the part of the defendant,
more
so that the subject of the dispute being the motor vehicle has been
attached, removed from the defendant and handed over to
the
plaintiff.
14.3
lastly, I considered the merits of the case in favour of the
defendant an aspect which is relevant in an application for
condonation,
15.
I now turn to deal with the essence of the application for rescission
of judgment. The explanation for delay in defending the
matter seems
to be attributable, firstly, to the fact that the summons were not
served personally on the defendant. Whilst it is
so stated, it looks
like the real delay was occasioned by the defendant's decision to
make arrangements to pay the arrears and
some payments having been
made before judgment was granted on the 1
st
October 2008. Secondly, according to the defendant, he genuinely
believed that no further actions would be taken as the arrears
were
paid up to date before judgment was obtained. That is, summons having
been served on the 4 July 2008, showing an amount of
R3 741.67
outstanding and payment of R4000 having been made on the 24 June
2008, that is, before service of the summons, the defendant
seemingly
believed that no further actions would be taken by the plaintiff,
whereas it is not specifically so stated in the three
paragraphs
quoted above, it can be so inferred from them.
16.
I am therefore satisfied that the reason for the delay is justified.
In addition to this, I am also persuaded by the merits
of the
application. This brings me to deal with a bona fide defence as a
requirement in an application for rescission of judgment.
17.
The only defence raised, that deserves consideration, is what is
referred to in paragraph 4 of the founding affidavit as a point
in
limine.
In
a nutshell, the defence is that, the defendant did not receive the
notice in terms of section 129 of the National Credit Act
and that if
she had received it, she would have availed herself of the remedies
set out in the letter.
18.
Before I deal with the defence, I find it necessary to preview the
relevant provisions of Act and the real essence of the Act
or to put
it differently, the real intention of the Legislature in the Act.
19.
The object of the Act amongst others is described as, to promote
ownership within the consumer credit industry, to prohibit
certain
unfair credit and credit marketing practices. But of great
importance, for the purpose of this case, to provide for debt
re-organisation in cases of over indebtedness and to provide for
registration of debt counselling services.
20.
The main objective of the establishment of counselling is founded in
section 129 of the Act. Subsection (1)(a) thereof provides
that if
the consumer is in default under a credit agreement, the credit
provider 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 intent that the parties resolve any
dispute under the agreement or develop and
agree on a plan to bring
the payment under the agreement up to date.
21.
In terms of section 129 (1)(b)(i) and (ii), a credit provider may not
commence any legal proceedings to enforce the agreement
before it has
first provided a notice to the consumer as contemplated in paragraph
(a) or in section 86 (10), as the case may be,
and meeting any
further requirements set out in section 130.
22.
Coming back to the intention of the legislature, and in particular
subsection (1)(a) of section 129, the Legislature must have
contemplated firstly, that legal proceedings should not be resorted
to without a consumer and credit provider, having attempted
to
resolve the dispute and meet each other half way in times of need.
Secondly, the legislature must have seen un-relented resort
to legal
proceedings as being oppressive especially to the consumer and as
being too costly. For example, in the instant case,
a total amount of
R9090.34 went towards costs occasioned by the institution of legal
proceedings. Had the dispute been dealt with
as envisaged in section
129 during April 2008, by the 27 November 2008, when the defendant
made a further payment of R8000,she
would not only have bought the
account up to date, but would also have paid off the whole balance
outstanding regard been had to
the payments made as set out earlier
in paragraphs 11.2 and 11.3 of this judgment.
23.
The legislature puts a bar to the institution of legal proceedings
unless the provisions of section 129 and other requirements
in
section 130 have been complied with.
24.
I think it has to be accepted that it is not every consumer who is
aware of the provisions of section 129. For this reason,
a credit
provider should not only comply with the provisions of section 129,
but should also ensure that the notice in terms of
section 129 comes
to the attention of the consumer. In facilitating the giving of the
notice, the credit provider can by a registered
mail give such a
notice in which the consumer's attention is drawn to the fact that
the dispute under the credit agreement, could
be referred to a debt
counsellor, alternative dispute resolution agent, consumer court or
ombud with jurisdiction in order to bring
payments up to date.
25.
The plaintiff in the instant case, as a credit provider, elected to
give such a notice as provided for in terms of section 168(b),
that
is, by registered letter dated the 7 April 2008. To this, a
certificate of posting forms part of the papers. This is a post
office form titled "LIST OF REGISTERED LETTERS". This is a
form which is normally, completed by a sender of registered
letter.
Upon, completion it would then be taken to the post office. The right
bottom of the form provides for a date stamp. This
is where the post
office is expected to put its date stamp to indicate the date on
which the letter was sent or handed over to
the post office.
26.
Quite very often the date stamp is accepted as the date on which the
letter would have been despatched to the addressee. Service
by
registered post creates a presumption of receipt thereof within three
days from date of posting. However, in terms of the agreement,
the
parties elected such a presumption to take effect seven days from
date of posting of the notice per registered post. When the
matter
was agued, I expressed my concern about certificate of posting which
did not have a date stamp. The plaintiff has since
furnished
certificate of posting with a date stamp being the 8 April 2008.
27.
Counsel for the defendant vigorously argued the point that the
registered letter in terms of section 129 was never received.
In
paragraph 4 of the founding affidavit, dealing with the point in
limine, it is stated as follows:
"4.1
I confirm that I am advised, which advice I accept as being
correct, that I should bring the following to the Honourable
Courts
attention,before I deal with theclaim of the Plaintiff/Respondent,
4.2
I confirm that the respondent, in terms of pray 10 of the Particulars
of Claim is alleging that the plaintiff is found to have
complied
with the requirements, as set out in section 129(1) of the National
Credit Act, Act 34 of 2005 (hereinafter referred to
as the "Credit
Act"). The respondent seems to rely upon the unlabelled Annexure
to the summons, in this regard.
4.3
I deny having ever received any notification from the plaintiff, as
required by section 129(1) of the Credit Act, and more specifically
I
deny having received
claim
of the Plaintiff/Respondent,the document attached to the Summons of
the Plaintiff.
I
confirm that I receive no notice of my alleged default in payment,
nor have I received any period in which I was required to rectify
the
alleged default in payment of my monthly bond.
4.4 Had
I been made aware of my rights of this Act, I would certainly have
made use thereof, as I have now been informed by my attorney
of
record what these rights entail and that the available procedures
would have assisted me greatly in the financial strains that
I
underwent during last year. I would certainly have made use of
these rights, had I been so informed
4.5 The
plaintiff has failed to comply with the requirements of the Credit
Act, and as such, the summons of the Plaintiff is defective.
Full
legal argument on this aspect, as well as the annexure to the
Plaintiff's summons will be made before court at the hearing
of this
application.
4.6
I
therefore confirm that the Plaintiff's Default
Judgment should be
set aside on this aspect
alone."
28.
The
averment as quoted above and the submission that was made on behalf
of the defendant was refuted by counsel on behalf of the
plaintiff as
not constituting a bona fide defence to the plaintiff's cause of
action. As I understood him, regard been had to the
followings:
28.1
that the defendant fell in arrears with her payments in terms of the
instalment sale agreement,
28.2
that the plaintiff duly gave a notice as envisaged in section 129
read with section 168(b) of the Act,
28.3
that the defendant failed or neglected to react to the notice in
terms of section 129 within the time period as set out in
the letter
of the 7 April 2008,
28.4
that the plaintiff accordingly, cancelled the agreement and
instituted the action against the defendant for relief as set out
earlier in this judgment,
28.5
that therefore, the fact that the defendant did not receive the
notice is of no consequence to the plaintiff, alternatively
that on
probability, the defendant had received the notice in terms of
section 129, but elected to ignore it,
28.6
that the agreement validly cancelled cannot be revived as the
defendant seeks to do.
29.
The
submission seems to raise the following issues:
29.1
whether
it is a defence to the plaintiff's cause of action that the defendant
did not receive a section 129 notice? And if so, from
the date on
which it was sent, being the 8 April 2008? And if so,
29.2
whether the defendant rebutted the presumption that she must have
received the notice within three or seven days
29.3
whether the defendant did not know of her rights as set out in
section 129? And,
29.4
whether the defendant would have elected to refer the credit
agreement to a debt counsellor with the intention that the parties
develop and agree on a plan to bring the payments under the agreement
up to date, had she have known of her rights to do so?
30.
The other issue raised during argument was, whether a duly cancelled
credit agreement could be revived or reinstated"?
Or to put it
differently, whether the credit agreement was duly cancelled?
31.
Starting with the latter issue, section 129(4)(a)(b) and (c) of the
Act provides that a consumer, that is, the defendant in
the present
case, may not re-instate a credit agreement after the sale of any
property pursuant to an attachment order, or surrender
of property in
terms of section 127, or after the execution of any other court order
enforcing that agreement or termination thereof
in accordance with
section 123. Of relevance, section 123(1) provides that a credit
provider may terminate a credit agreement before
time provided in
that agreement only in accordance with this section. Subsection (2)
thereof, provides that, if a consumer is in
default under a credit
agreement, the credit provider may take the steps set out in Part C
of Chapter 6 to enforce and terminate
the agreement. Termination and
enforcement are as in sections 129 and 130 of the Act.
32.
Coming back to subsection 4 of section 129, there was no sale of the
property pursuant to the attachment of the motor vehicle,
nor did the
defendant surrender the property in terms of section 127. The
termination in accordance with section 123 is challenged
on the basis
that there has not been full compliance with the provisions of
section 129, the contention being that the defendant
did not receive
the letter of the 7 April 2008. What appears to be contentious
however, is paragraph (b) of subsection 4. Although
not specifically
argued, the contention appear to be, the attachment and seizure of
the motor vehicle and the handing over thereof
to the plaintiff was
an execution of an order envisaged in subsection 4(b).
33.
Remember, I am dealing here with an application for rescission of
judgment. Not necessarily with a final determination on the
merits of
the defence that might be available to the defendant during trial.
For example, does the "execution of any other
court order
enforcing the agreement" in terms of section (4)(b) divest of
the court's discretionary powers in terms of section
129? I do not
think so. But, I am constrained not to make a final determination in
this regard the reason being that I am not dealing
with a trial.
Therefore, without making a factual finding as to whether or not
there has been a full compliance with section 129,
no final
determination can be made as envisaged in section 129 (4)(b). Such an
execution as envisaged in subsection (4)(b) is challenged
on the
basis that the defendant did not receive the notice in terms of
section 129 and that if she did, she would have availed
herself of
the remedies therein.
34.
I now turn to deal with the issue as raised in paragraph 29.1 of this
judgment. Again, I am hesitant to make a final determination.
The
issue is whether it is arguable that the defendant ought to have
received a notice in terms of section 129 before it could
be said
that there has been compliance thereof?
35.
Clearly, the giving a of notice in terms of section 129(1), is
intended that it should come to the attention of the consumer
who may
not be aware of his or her rights to refer the credit agreement to a
debt counsellor with the intention as stipulated therein.
When it is
so despatched by registered post, firstly it is to ensure that it is
received and secondly, to relieve the sender of
the duty to establish
receipt thereof. If it is alleged that it has not been received and
the consumer discharges the onus or succeeds
in rebutting the
presumption, it should be regarded as if it has not been given.
Therefore, should it be shown during trial that
the defendant did not
receive the letter of the 7 April 2008, this should constitute a good
defence to the plaintiff's claim.
36.
This then bring me to deal with the other issue raised earlier. That
is, whether the defendant did not know of her rights as
set out in
section 129. The issue should be considered together with the one
raised in paragraph 29.4 of this judgment. At the
risk of repeating
myself, the issue is:
"Whether
the defendant could have elected to refer the credit agreement to a
debt counsellor for example, had she have known
of her rights in
terms of section 129".
36.1
She says specifically so. She did not know of the provisions of
section 129. She concedes readily that she had problems in
fulfilling
her obligations in terms of the credit agreement. She specifically
says she would have opted for the remedies set out
in the notice, had
she have received it.
36.2
The plaintiff also as argued by its counsel, wishes to suggest that
in all probabilities, the defendant must have received
the notice as
per the letter of the 7 April 2008. In making this submission, it was
suggested that the defendant started making
payments in earnest only
after the notice in terms of section 129 was sent to her on the 7
April 2008. It is further suggested
that further payments were only
made after summons were served and after the order that was obtained
by default was executed on
25 November 2008.
37.
The
submission in my view, would have been valid had the defendant did
nothing before and after the letter of the 7 April 2008.
The facts of
the case does not display the defendant as the person who had or has
no intention of complying with her obligations
or as the person who
would have ignored an advice to her advantage, an advice that might
have assisted her in not loosing possession
of the motor vehicle in
question. For example, she was nearing the end of the credit
agreement. Secondly, when the letter of the
7 April 2008 was sent,
she was apparently about one to two months in arrears. Thirdly, the
capital amount that was still owing
at the time the agreement was
cancelled was really minimal as compared to the amount already paid
by her. On the 26 March 2008,
few days before the notice in terms of
section 129, the defendant made payment in the amount of R1300. The
vehicle having been
taken from her on the 25 November 2008, she made
two payments totalling to R10 000 just before and after it was taken.
That is,
R2000 on the 30 October 2008 and R8000 on the 27 November
2008. This in my view, is not consistent with the suggestion that the
defendant ignored to make a choice to pursue remedies in terms of
section 129. It would have been easier and more convenient for
the
defendant to resort to section 129 than to risk loosing the motor
vehicle and every cent that she had already paid towards
the
redemption of the capital amount.
38.
I am not making a final finding in this regard. The sentiments I have
expressed herein, if established during trial could serve
to negate
proper compliance with the provisions of section 129. Or to put it
differently, it could have a bearing on the plaintiff's
is
entitlement to enforce and cancel the credit agreement. A bona fide
defence should therefore be found to have been established.
39.
I posed a question to the parties as to what kind of an order should
be made, should I find that the issue raised as a point
in limine
could constitute a bona fide defence. The suggestion by counsel on
behalf of the plaintiff as I said was that, I cannot
rescind the
judgment and then revive or reinstate the credit agreement. I dealt
earlier in this judgement with the circumstances
under which a
cancelled credit agreement cannot be revived or reinstated.
40.
The provisions dealing with the authority to reinstate or not to
reinstate the agreement in my view, should be seen in the light
of
the further provisions of the Act. Section 129(4)(b) provides that,
in any proceedings contemplated in this section, if the
court
determining that the credit provider has not complied with the
relevant provisions of this Act, as contemplated in subsection
(3)(a)
or has approached the court in circumstances contemplated in
subsection (3)(c), the court must adjourn the matter before
it, and
make an appropriate order setting out the steps the credit provider
must complete before the matter may be resumed.
41.
The final determination on whether or not the plaintiff as a credit
provider has complied with, the provisions of section 129,
is an
issue that could properly be ventilated during trial. In particular,
the issue whether the defendant had received the notice
in terms of
section 129 could be found to be material in vitiating the steps
taken by the plaintiff as a credit provider before
the institution of
the main action. For now, it suffices to mention that the defence as
raised by defendant cannot be said not
to be bona fide. This should
justify the setting aside of the order that was obtained by default
on the 10 October 2008 and executed
upon on 25 November 2008.
42.
As a general rule, when an order is given rescinding a judgment as in
the instant case, the defendant should be entitled to
leave to defend
the matter. However, having regard to the provisions of section
129(4)(b) and the nature of the defence raised,
I do not find it
necessary to grant leave to defend the matter at this stage. Such
leave should specifically be requested should
it become necessary to
do so, after having exhausted the steps that I intend making in terms
of section 129 (4)(b)(ii). Put it
this way, leave to defend is to be
adjourned as envisaged in section 129(4)(b). However, the setting
aside of the default judgment
should entitle the defendant to have
the motor vehicle returned to her, whilst parties attempt to resolve
the dispute as to be
directed hereunder. It would only be fair and
reasonable to do so, particularly having regard to the payments made
by the defendant
since March 2008 to the 27 November 2008 and the
period that was left before the expiry of the credit agreement.
43.
Before I conclude, I find it necessary to deal in detail with some of
authorities to which I was referred by counsel on behalf
of the
plaintiff. These authorities are contained in the supplementary heads
of argument which were submitted on the 11 December
2009 after this
matter was argued on the 7 December 2009.
44.
Firstly, is the unreported judgment of WALLIS J, in the matter of
Marimuthu
Munien V BMW Financial Services (SA) (PTY) Ltd & Another
Kwazulu-Natal Local Division
under
case number 16103/08. In paragraph 22 of the judgment Wallis J,
having found that the notice in terms of section 129(1) was
sent per
registered post at the address chosen by the consumer, expressed
himself as follows:
"It
follows that in my judgment, provided the credit provider delivered
the notice in the manner chosen by the consumer in
the agreement and
such manner was one specified in section 65(2)(a) it is irrelevant
whether the notice in fact came to the attention
of the consumer. As
the consumer has the right to chose the manner in which notice is to
be given, it is for the consumer to ensure
that the method chosen
will be one that is reasonably certain to bring any notice to his or
her attention. In the present case,
the applicant was presumably
aware of the deficiency in the postal services at the address chosen
in the agreement. He was certainly
aware that he had moved. In terms
of clause 15.1 of the contract, he was perfectly entitled to give
notice of that fact to the
first respondent and to alter his
domicilium. He did not do so. His right to alter his address was
reinforced by section 96 of
the NCA. In addition he was obliged under
section 97 of the NCA to inform the first respondent that the
location of the motor vehicle
had changed, but it does not appear
that he did so.
The
fact that he did
not
receive either the notices or summons, appears to follow very
largely from his own actions rather than those of the first
respondent
".
(my own emphasis).
45.
Wallis
J, also referred to the case of
Wessels
and Another v Brich NO and others
1950 (4) SA 352
(T)
where
the court had to deal with a rule governing execution that provided
that a "...
notice
shall be served by means of a registered letter, duly prepaid and
posted, addressed to the person intended it to be served".
In
that case, it was held that provided the notice was given in that
manner, the fact that it was returned by the postal service
as
undelivered was immaterial. The judgment is said to have been
followed in several other cases, for example, in
Exparte
First Rand Bank Ltd t/a FNB Home Loans V Sheriff, Brakpan and others
2007 (3) SA 194
(W).
46.
Firstly, I do not think that it is irrelevant and immaterial whether
the notice in fact came to the attention of the consumer
as expressed
by Wallis J. Remember, section 129(1) does not only serve to draw the
attention of the consumer to his or her default
and being put to
terms to make payment or being put
in
mora.
It
goes far more than that. It puts an obligation on a creditor provider
to notify the consumer of latter's rights to refer the
credit
agreement to a debt counsellor, alternative dispute resolution agent,
consumer court or ombud. The intention of such a referral
being to
resolve any dispute or develop and agree on a plan to bring the
payment under the credit agreement up to date. This is
new innovative
measure regulating the conduct of the parties to a credit agreement.
47.
It is no longer the giving of the notice of the default and then
immediately resort to legal proceedings upon failure to honour
one's
obligations in terms of the agreement. For example, unlike before,
should a debtor or consumer who is unable to pay in terms
of the
credit agreement, refer the agreement for review or should he or she
act upon the notice in terms of section 129, by referring
the credit
agreement as envisaged, the credit provider does not have a free hand
to resort to legal proceedings.
48.
Unless such rights to have one's obligations in terms of the credit
agreement be reviewed in terms of section 64 or to refer
such
obligation for restructuring in terms of section 129, are clearly
spelled out or embodied in the credit agreement, itself,
it cannot be
said that it is not a defence when one alleges that he or she was not
aware of such rights and did not receive notification
in terms of
section 129. You can only assert your right when you know of it.
49.
In certain circumstances credit provider cannot just contend itself
with the chosen address by a consumer. Where it is clear
for example,
that there may not be a postal services, it would not be reasonable
to sent notice in terms of section 129(1) to that
address. Other
reasonable means of notification should be utilised. Requesting the
sheriff to serve the notice on the consumer
could be sufficient and
efficient. I therefore do not think that it would still be immaterial
when the notice by postal service
is returned as undelivered or where
it is clear or established that there are no postal services and the
person to whom the letter
was intended did not receive it. What I say
is this, when credit provider accepts postal services as a means of
serving notice
in terms of section 129(1), it must be clear from the
address that postal services can reasonably be expected to exist at
the chosen
address. If uncertain, other means of service than by
registered mail should be resorted thereto.
50.
In any event, the facts of the present case is in my view differ from
the facts of the case dealt by Wallis J. The fact that
the consumer
did not receive either the notices or the summons appears to follow
largely from the consumer's own actions rather
than those of the
credit provider. Surely, if there is an indication of being unwilling
to fulfil obligations and evading the credit
provider, a consumer
cannot expect any sympathy from the credit provider or the court. The
defendant in the instant case cannot
be said to have done any of
these. Such step could only have been taken with the leave of the
court as I intend to do hereunder.
51.
There are other four unreported cases to which I was referred by
counsel on behalf of the plaintiff. The facts of the present
case are
clearly distinguishable from the facts of those cases. I do not find
it necessary to specifically refer to them.
52.
Counsel for plaintiff passionately argued the point that the
defendant having received the summons did nothing to challenge
reliance on compliance with the provisions of section 129(1).
Explanation for not launching the present application which has a
bearing on not having followed the remedies in section 129(1) is
quoted in paragraph 27 of this judgment. Of course the other issue
is, whether the defendant could have referred the credit agreement
for debt review as envisaged in section 85 or for restructuring
of
the debt as envisaged in section 129, after all steps taken by the
plaintiff? I do not think so. Such a step could only have
been taken
with the leave of the court as I intend to do hereunder.
53.
Coming back to the notice, strict compliance in terms of section
129(1) should mean the notice also coming to the attention
of the
consumer. Properly posted letter of notice in terms of section 129
should put a heavy burden on the consumer to satisfy
the court that
he or she did not receive the notice and secondly, that he or she is
not blamed for not having received the notice.
Lastly, that he or she
is or has not been adopting delaying tactics to the prejudice of a
credit provider. The facts of the present
case does not suggest any
of these on the part of the defendant. Fairness dictates towards
leaning in favour of the defendant,
by rescinding the default
judgment and allow the parties to attempt to resolve their dispute.
54.
The plaintiff having cancelled the agreement and having brought
forward the whole of the outstanding amount when it executed
the
order on October 2008, should have been mindful of the amount already
paid just before it proceeded against the defendant on
7 April 2008
and just before the order was executed on the 25 November 2008.
55.
The purpose of section 129 and other relevant provisions in terms of
the Act is not to bring down a consumer once in arrear
by one
instalment or few instalments after long period of compliance with
his or her obligations, like it happened in the preset
case.
Similarly, the protection given to a consumer in terms of section 129
and other provisions of the Act is not to bring down
a credit
provider who is halted by tactical manoeuvres adopted by a consumer
in evading payment to a great prejudice of a credit
provider.
56.
When the order was executed on the 25 November 2008, the defendant
had already made a total amount of R10 000 since 28 March
2008. To
this, adding R8000 which was made on the 27 November 2008.
57.
A credit provider must act reasonably in each given case. In the
instant case, I do not think it was reasonable and fair to
have
executed the order. Firstly, when summons were drafted and issued on
the 17 June 2008, and as it would appear from paragraph
11.1 of the
particulars of claim, the defendant was in arrears in the sum of
R3741.67. Before service of the summons on the 4 July
2008, the
defendant must have been up to date with her payments, the defendant
having paid R4000 on the 25 June 2008. As on the
10 October 2008 when
judgment was granted, the plaintiff had paid R6800 in total since
summons were issued on the 17 June 2008.
Again I make no final
finding.
58.
I am not suggesting for a moment that a credit provider who complies
with the relevant provisions of the Act is not entitled
to resort to
legal proceedings as envisaged in the Act for enforcement of rights,
where obligations are not been fulfilled by a
consumer. The objective
of the Act in making it possible for the parties to a credit
agreement to resolve their dispute or bring
payment up to date,
should always be primary without compromising each other's right. In
doing so, the spirit of the Act would
be promoted and could be found
to be user friendly by the parties to the credit agreement.
59.
Consequently, an order is hereby made as follows:
59.1
the order granted on the 10 October 2008 against the
defendant/applicant is hereby rescinded,
the
plaintiff/respondent is hereby ordered to return to the
defendant/applicant the motor vehicle attached and seized by the
sheriff on the 25 November 2008,
the
plaintiff and the defendant are directed to attempt to resolve the
dispute, failing which the defendant is directed to refer
the
dispute in terms of 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,
should
the matter not be resolved as envisaged in paragraph 59.3 above,
each party is entitled to approach this court on supplemented
papers
either for leave to defend the matter or for an order as the
plaintiff might be entitled to under the credit agreement,
59.5
each parry to pay his or her own costs arising from the application
for rescission of judgment.
M
F LEGODI
JUDGE
OF THE HIGH COURT
Attorneys
for the Applicant: MALULEKA TLHASI INC
Suite
114, T
r
Floor, Central Tower Building Cnr. Pretorius & Central Streets
Pretoria
Ref:
Mr Maluleka/CIV12/KUBHEKA Tel: 012 326 3794
Attorneys
for the Respondent: VAN HEERDEN'S INC.
Embassy
Law Chambers 834 Pretorius Street ARCADIA Pretoria
Ref:
W van Heerden/K10164 Tel: 012 326 3794