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[2010] ZAGPPHC 271
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La Camera v Nedbank Ltd (52817/08) [2010] ZAGPPHC 271 (11 June 2010)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
PRETORIA
[REPUBLIC OF SOUTH AFRICA]
Case
number 52817/08
DATE:11/06/2010
In
the matter between:
LA
CAMERA: CARILE MAY
…....................................................................
Applicant/Defendant
and
NEDBANK
LIMITED
(RETAIL)
....................................................................
Respondent/Plaintiff
JUDGMENT
TOKOTA
AJ
[1]
On 11 March 2005 and at Benoni an installment sale agreement was
concluded between the applicant and the respondent in terms
whereof
the applicant purchased a motor vehicle valued at R56 267.70 from the
respondent. In terms of the agreement the applicant
had an obligation
to pay monthly installments of R962.55. She defaulted in her monthly
payments. As at August 2008 she was in arrears
in the amount of R2
051.78.
[2]
As the National Credit Act No. 34 of 2005 ("the NCA") was
applicable, the respondent delivered to the applicant a
notice in
terms of section 129 thereof. This was delivered at an address other
than the address which was given by the applicant
as domicilium
citandi et executandi. This notice was apparently ignored. The
applicant has given conflicting versions in regard
to the receipt of
the notice. In her founding affidavit she avers that the notice was
delivered to her in the address given therein.
In her replying
affidavit she denies that she received the notice. I will deal with
this aspect later in this judgment.
[3]
On 18 November 2008 after returning from her work the applicant found
summons attached to the door of her flat where she was
residing. This
is the same address at which the notice was delivered. She had ten
days within which to enter appearance to defend.
The ten day period
expired on or about 2 December 2008.
According
to her it was after the service of summons that she realized that her
"financial position was in a mess". She
consulted a debt
counsellor with a view to apply for a debt review in terms of section
86 of the NCA. She was advised to enter
appearance to defend the
matter and served the respondent through Its attorneys with such
notice on a Friday which was the 5th
of December 2008. Apparently by
that time the respondent had already applied for default judgment,
having done so on 3 December
2008, dies for entering appearance to
defend having expired on 2 December 2008.
[4]
On 8 December 2008 default judgment was granted by the Registrar of
this court. It is this judgment that the applicant seeks
to rescind.
In the notice of motion she also sought an order of costs against the
respondent. The application is brought in terms
Rule 31(2)(b) of the
Uniform Rules of this court. The respondent opposes both the
rescission and the order of costs.
[5]
Mr. Mollontze, who appeared for the applicant, submitted that there
are two main grounds for the rescission. First, he submitted
that the
judgment was not supposed to have been granted in the face of the
notice of intention to defend the matter. Second, because
the notice
in terms of section 129 of the NCA was delivered to an address other
than the chosen domicilium citandi et executandi
by the applicant
such notice was defective. He further submitted that the issuing of
summons was, in view thereof, a defective
step. The latter argument
is based on the provisions of section 130(1) of the NCA which
provides that "(1) Subject to subsection
(2), a credit provider
may approach the court for an order to enforce a credit agreement
only if, at that time, the consumer is
in default and has been in
default under that credit agreement for at least 20 business days
and-
(a)
at least 10 business days have elapsed since the credit provider
delivered a notice to the consumer as contemplated in section
86 (9),
or section 129 (1), as the case may be;
(b)
in the case of a notice contemplated in section 129 (1), the consumer
has-
(i)
not responded to that notice; or
(ii)
responded to the notice by rejecting the credit provider's proposals;
and
the notice of intention to defend the matter. Second, because
the notice in terms of section 129 of the NCA was delivered to an
address other than the chosen domicilium citandi et executandi by the
applicant such notice was defective. He further submitted
that the
issuing of summons was, in view thereof, a defective step. The latter
argument is based on the provisions of section 130(1)
of the NCA
which provides that "(1) Subject to subsection (2), a credit
provider may approach the court for an order to enforce
a credit
agreement only if, at that time, the consumer is in default and has
been in default under that credit agreement for at
least 20 business
days and-
(a)
at least 10 business days have elapsed since the credit provider
delivered a notice to the consumer as contemplated in section
86 (9),
or section 129 (1), as the case may be;
(b)
in the case of a notice contemplated in section 129 (1), the consumer
has-
(i)
not responded to that notice; or
(ii)
responded to the notice by rejecting the credit
provider's
proposals; and
(c)
in the case of an installment agreement, secured loan, or lease, the
consumer has not surrendered the relevant property to the
credit
provider as contemplated in section 127."
[6]
It was not canvassed in the papers as to whether or not at the time
when the judgment was granted, the Registrar was aware of
the notice
of intention to defend. I am not sure as to whether had the Registrar
been aware of the notice he would have still granted
the default
judgment. In the absence of any evidence that he was aware or that
the notice was in the court file, I am constrained
to find that he
was not aware that the notice of intention to defend had been
delivered.
[7]
Rule 31 (2) of the Uniform rules of court provides "(2) (a)
"Whenever in an action the claim or, if there is more
than one
claim, any of the claims is not for a debt or liquidated demand and a
defendant is in default of delivery of notice of
intention to defend
or of a plea, the plaintiff may set the
action
down as provided in subrule (4) for default judgment and the court
may, after hearing evidence, grant judgment against the
defendant or
make such order as to it seems meet.
(b)A
defendant may within 20 days after he has knowledge of such
judgment apply to court upon notice to the plaintiff
to set aside
such judgment and the court may, upon good cause shown, set aside the
default judgment on such terms as to it seems
meet." In Colyn v
Tiger Food Industries Ltd t/a Meadow Food Mills (Cape)
2003 (6) SA 1
(SCA) at 9C-F it was stated that: "(i)n order to succeed an
applicant for rescission of a judgment taken against him by default
must show good cause (De Wet and Others v Western Bank Ltd (supra)).
18 The authorities emphasise that it is unwise to give a precise
meaning to the term 'good cause'. As Smalberger J put it in HDS
Construction (Pty) Ltd v Wait:
'When
dealing with words such as "good cause" and "sufficient
cause" in other Rules and enactments the Appellate
Division has
refrained from attempting an exhaustive definition of their meaning
in order not to abridge or fetter in any way the
wide discretion
implied by these words (Cairns' Executors v Gaarn
1912 AD 181
at 186;
Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 352 - 3).
The Court's discretion must be exercised after a proper consideration
of all the relevant circumstances.'
With
that as the underlying approach the Courts generally expect an
applicant to show good cause (a) by giving a reasonable explanation
of his default; (b) by showing that his application is made bona
fide; and (c) by showing that he has a bona fide defence to the
plaintiff's claim which prima facie has some prospect of success
(Grant v Plumbers (Pty) Ltd, HDS Construction (Pty) Ltd v Wait
supra,
Chetty v Law Society, Transvaal)"(footnotes omitted).
[8]
In order to determine whether or not the applicant has satisfied the
requirements referred to in the Colyn's case above it is
necessary
first to refer to the notice in terms of section 129. That notice was
delivered to the same address as the summons. I
find therefore that,
despite the denial of receipt thereof, the applicant did receive it.
Accordingly the respondent was entitled
to approach the court after
the lapse of ten days of delivery of the notice. After receipt of the
notice the applicant did nothing
until she received summons and only
then did she take steps. No explanation has been proffered as to why
the notice was ignored.
[9]
The above finding disposes of the argument of Mr. Mollentze that the
issuing of summons was a defective step.
[10]
Has the applicant shown that she has a bona fide defence to the
respondent's claim which prima facie has some prospect of success?
Mr. Groenewald, who appeared for the respondent argued that the
rescission application is brought solely to delay the respondent's
claim and that the applicant has no bona fide defence. In my view the
applicant has not shown that she has a bona fide defence
to the
claim. She breached the contract by defaulting to make monthly
payments. Her explanation for the default is that her financial
position is in a "mess". Her technical defence of failure
to comply with the provisions of section 129 cannot be sustained.
The
argument that because the notice was sent to an address other the one
chosen as her domicilium address is untenable. In my
view when
interpreting the provisions of section 129 one must bear in mind that
the rationale behind it is to "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". The object of the section
is not to permit technical
objections which would make it impossible to enforce the rights of
the credit provider as embodied both
in the NCA and the sale
agreement.
[11]
In terms of section 97(2) the applicant was obliged to advise the
respondent of her change of residence and where the motor
vehicle was
kept. The section provides that "until the termination of an
agreement to which this section applies, the consumer
must inform the
credit provider, in the prescribed time, manner and form, of any
change concerning-
(a)
the consumer's residential or business address;
(b)
the address of the premises in which any goods that are subject to
the agreement are ordinarily kept; and
(c)
the name and address of any other person to whom possession of the
goods has been transferred." The applicant failed to
comply with
this section. Mr. Mollentze referred me to the case of Munien v BMW
Financial Services (SA) (Pty) Ltd and Another
2010 (1) SA 543
(KZD)
as the authority for the proposition that if the credit provider does
not deliver the notice to the chosen domicilium the
notice is
defective.
[12]
In Munien's case Wallis J held that regard being had to the manner of
delivery of the notice as prescribed in the regulations
published
under the NCA it is not necessary that the notice must have been
received by the consumer. It is the sending of the notice
that is
decisive. In his view if the credit provider has used the methods of
delivery prescribed in the regulations it suffices
for compliance
with section 129 as long as the notice has been sent to the chosen
domicilium address. This reasoning was based
on the premise that the
credit provider has no way of knowing whether or not the notice was
received by the consumer. In his view
it is irrelevant whether or not
the consumer had received the notice.
[13]
In my view where the consumer, as in this case, fails to advise the
credit provider of the change of address, the credit provider
is
entitled to deliver the notice wherever the consumer is to be found,
where this is possible. One must bear in mind that the
credit
provider is entitled to repossess the goods upon default of monthly
payments. To argue that repossession of the goods at
an address other
than the chosen domicilium is unlawful would be untenable an
unrealistic. This would open a gate for unscrupulous
consumers to
choose a non existent address as a chosen domicilium address so as to
defeat the objects of the NCA. If it was the
intention of Wallis J in
Munien's case that if the notice is delivered and received by the
consumer at an address other than the
chosen domicilium
(notwithstanding that the consumer resides at that address) such
notice is defective I see things differently.
In my opinion the
applicant's defence in this regard is flimsy and must be rejected.
[14]
With regard to argument that the judgment was granted in error
because the notice of intention to defend was delivered before
the
date on which the judgment was granted I find that the notice was
filed after the horse had bolted and therefore no error was
committed. If a litigant slumber and the prescribed procedural steps
are followed by the other party such litigant must suffer
the
consequences. Even if I am wrong on the finding that there was no
error (regard being had to the provisions of Rule 19(5) of
the
Uniform Rules of court) in my opinion the applicant has not shown a
bone fide defence to respondent's claim, bearing in mind
my finding
that section 129 of the NCA has been complied with. Consequently the
second defence must also fail. Accordingly I find
that the applicant
has failed to establish the requirements as formulated in Colyn's
case supra and in the result I make the following
order.
The
application is dismissed with costs.
B
R TOKOTA
ACTING
JUDGE OF THE HIGH COURT
Date
of Hearing: 7 June 2010
Date
of Judgment: 11 June 2010.
Appearances:
Mr.
J H Mollentze for the applicant instructed by CMM Incorporated