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[2010] ZAGPPHC 117
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Nedbank Limited v Dhlamin (23028/2010) [2010] ZAGPPHC 117 (15 September 2010)
IN THE
HIGH COURT OF SOUTH AFRICA /ES
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE NO:
23028/2010
DATE:
15/09/2010
IN THE
MATTER BETWEEN
NEDBANK
LIMITED
..........................................................................
APPLICANT/PLAINTIFF
AND
MSAWENKOSI ARTHUR
DHLAMINI
….................................
RESPONDENT/DEFENDANT
JUDGMENT
KOLLAPEN, AJ
[1] This is an
application for summary judgment in which the applicant seeks an
order in the following terms: (a) payment of
the sum of R519 099,52;
(b) interest on the
above amount at 8.95% per annum from 2 March 2010 to date of payment;
(c) an order
declaring the property known as Portion 133 of Erf 3257 Dawn Park
Extension 37 executable;
(d) cost of suit.
[2] The cause of
action is based on monies allegedly due in terms of a loan agreement
entered into between the parties and regulated
by mortgage bond. It
is common cause that the
National Credit Act 34 of 2005
applies to
the agreement concluded between the parties.
[3] The applicant,
prior to issuing summons in this matter, caused a letter styled a
"notice of default in terms of
section 129(1)
of the
National
Credit Act 34 of 2005
", to be sent to the respondent's chosen
domicilium citandi et executandi at Portion 133 of Erf 3257 Dawn Park
Extension 37.
The letter was dispatched by registered post.
[4] The respondent
has defended the action instituted by the applicant and opposes the
application for summary judgment.
[5] In his affidavit
resisting summary judgment he denies that he received the notice in
terms of
section 129(1)
and while not disputing that the notice was
dispatched to the domicilium citandi et executandi, avers that he
does not reside at
that property having bought it for purposes of
investment and further alleging "there was no way I could have
received the
section 129(1)
notice".
[6] He accordingly
contends that the applicant did not, as was required by
section
129(1)
, "draw the default to the notice of the consumer"
and that accordingly the issue of summons was premature.
[7] He places
reliance in this regard on a judgment by MURPHY, J in the matter of
First Rand Bank Ltd v MA Dlamini case no 50146/09,
North Gauteng High
Court where it was found that the notice required by
section 129(1)
of the
National Credit Act had
to be brought to the "actual
attention" of the consumer, and if this required personal
service then such was a legitimate
requirement regard being had to
the ethos of the Act.
[8] The respondent,
however, urged the court to follow the dicta of GAUTSCHI, AJ in the
matter of MM Starita v Absa Bank Ltd &
Another case no 742/2009,
South Gauteng High Court to the effect "that the
section 129(1)
notice need not be actually received by the consumer. It was
sufficient that it was sent by registered post to the domicilium
address."
[9] The preamble to
the
National Credit Act suggests
that it was enacted with the
following objectives:
(a) "to
promote a fair and .... market place for access to consumer
credit..."
(b) "to
provide for debt re-organisation in cases of over-indebtedness".
[10] It is clear
that
section 129(1)
notice the Act contemplates seeks to ensure not
only that the consumer's attention is drawn to the default but also
that the consumer's
attention is drawn to the possibility of debt
counseling, an alternate dispute resolution process, the consumer
court and similar
structures. It would appear that the objective is
geared towards a resolution of the dispute if this is possible that
may involve
debt re-organisation.
[11] The fact that
section 129(l)(b)
creates a bar to the commencement of legal
proceedings until the requirements of the notice required in terms of
section 129(l)(a)
have been met, suggests that the words "draw
the default to the notice of the consumer" certainly
contemplates knowledge
on the part of the consumer both as to the
default as well as to the options relevant to debt counseling and
alternate dispute
resolution. The latter process can only be advanced
if the consumer has knowledge of them as options and the form and
delivery
of the notice contemplated in
section 129(1)
becomes
important.
[12] I do not
understand the parties to be in disagreement that this is what the
law requires. The disagreement relates to the modality
that is to be
used to achieve the objectives of the section.
[13] The
respondent's contention is that it would be costly and time consuming
to ensure that the
section 129(1)
notice is brought to the actual
attention of the consumer. This may have merit but seen against the
broader scheme of the Act and
the provisions of
section 129(1)
in
particular, it would render the benefit to the consumer academic if
compliance was a purely technical matter or a matter of
form rather
than one of substance.
[14] If one had to
accept the respondent's contention that notice by registered post to
the domicilium was sufficient the consequence
would be that a letter
dispatched to a vacant erf which was the chosen domicilium would be
regarded as sufficient on the part of
the credit provider to comply
with the substantive requirements of
section 129(1)
namely to "draw
the default to the notice of the consumer". This would have the
absurd result that a credit provider
who knowingly dispatches a
notice to an address where it will not be received can claim
compliance with the Act. Such an outcome
clearly militates against
the objectives of the Act.
[15] I am
accordingly in agreement with the stance of MURPHY, J that
section
129(1)
requires that the notice of default and the options open to
the consumer must be brought to the consumer's actual attention.
[16] Given that the
notice of default did not reach the respondent I am of the view that
the respondent should have the benefit
of the protection provided by
the section.
[17] In this matter
the consumer was not resident at the chosen domicilium citande et
executandi but had failed to provide the applicant
with a new address
as his chosen domicilium. This failure clearly makes it difficult for
the applicant to then comply with its
section 129(1)
obligations.
[18] I am
accordingly of the view that in the light of the non-compliance with
the requirements of
section 129(1)
, I am enjoined to act in terms of
section 130(4)(b)
of the Act which requires that the matter be
adjourned and appropriate directions be given on the steps the credit
provider must
complete before the matter may be resumed.
[19] I
accordingly make the following order:
1. The application
for summary judgment is postponed sine die.
2. The respondent is
directed to provide his current residential and working address to
the applicant in writing within seven days
of this order.
3. The applicant is
directed to comply with
section 129
and
section 130
of the
National
Credit Act.
4. In
the event of
the circumstances contemplated in
section 130(1)
arising, the
applicant may continue with the action for an order to enforce the
credit agreement if need be by amending its particulars
of claim and
by setting down the application for summary judgment on five days
notice to the respondent.
5. Costs are
reserved for determination by the court hearing the summary judgment
application or the action as the case may
be.
J KOLLAPEN
ACTING JUDGE OF THE
NORTH GAUTENG HIGH COURT
23028-2010
HEARD ON:
FOR THE APPELLANT:
INSTRUCTED BY:
FOR THE RESPONDENT:
INSTRUCTED BY: