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[2013] ZASCA 139
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Absa Bank Ltd v Mkhize and Another, Absa Bank Ltd v Chetty, Absa Bank Ltd v Mlipha (716/12) [2013] ZASCA 139; [2014] 1 All SA 1 (SCA); 2014 (5) SA 16 (SCA) (30 September 2013)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 716/12
In the matters between:
ABSA BANK LIMITED
................................................................................
APPELLANT
and
BHEKANI ERNEST MKHIZE
.......................................................
FIRST
RESPONDENT
THOLAKELE CONFIDENCE MKHIZE
....................................
SECOND
RESPONDENT
ABSA
BANK LIMITED
................................................................................
APPELLANT
and
SEAN
CHETTY
........................................................................................
RESPONDENT
and
ABSA
BANK LIMITED
................................................................................
APPELLANT
and
DALUBUHLE
XOLANIE MLIPHA
...........................................................
RESPONDENT
Neutral
citation:
Absa Bank v Mkhize
(716/12)
[2013] ZASCA 139
(30
September 2013)
Coram:
Lewis, Ponnan, Shongwe, Saldulker JJA and
Zondi AJA
Heard:
22 August 2013
Delivered: 30 September 2013
Summary:
An order postponing the hearing of an
application for default judgment so that the plaintiff is given an
opportunity to take further
steps the high court considers necessary
under
ss 129
and
130
of the
National Credit Act 34 of 2005
is not
appealable.
ORDER
On appeal from
KwaZulu-Natal High Court, Durban
(Olsen AJ sitting as court of first instance):
The appeal is struck from the roll.
JUDGMENT
Lewis JA and Zondi AJA dissenting
:
[1]
This appeal turns on the interpretation of a decision of the
Constitutional Court –
Sebola
v Standard Bank
1
–
on the
requirements of s 129(1) of the National Credit Act 34 of 2005 (NCA).
It lies against a decision of the High Court, KwaZulu-Natal,
Durban
(Olsen AJ) which set out the steps to be taken to ensure that notice
of a consumer’s default in meeting an obligation
to a credit
provider (in this case Absa Bank Ltd – ‘Absa’) is
provided to the consumer, steps necessary in the
light of
Sebola
,
for the institution of action against a defaulting consumer. The high
court placed an interpretation on
Sebola
that is in contention in
these matters. Other high courts have interpreted the
Sebola
decision differently.
2
[2]
Absa urged this court to find that Olsen AJ’s interpretation
was wrong. It should be noted at the outset, however, that
the order
that the high court made was to postpone applications for default
judgment against the four defendants/respondents (consumers)
against
whom it had sought default judgment. The court did not refuse
judgment. It required Absa to take further steps before it
could set
the matters down for hearing again. This court thus raised the
question, at the hearing, whether the high court’s
order was
appealable. I shall deal with appealability in due course. It is
necessary first to explain briefly what it was that
Sebola
decided, and that the
high court considered was required before judgments could be entered
against the consumers.
[3] It is important to
note at the outset that the consumers, who may or may not have
received notice in terms of s 129(1) of the
NCA, were not represented
in the high court and were not represented on appeal. At the request
of this court, Mr Pammenter SC and
Mr Veerasamy of the Durban Bar
appeared as amici curiae, and the court is grateful to them for doing
so. In addition, the Socio-Economic
Rights Institute of South Africa
Law Clinic (SERI) applied to be admitted as an amicus curiae, which
it was, and it was represented
by Ms A de Vos SC and Mr S Wilson.
The provisions of the
NCA in question
[4]
Section 129(1)
(a)
of the NCA requires that
before a credit provider such as Absa can institute proceedings
against a defaulting consumer, it must
‘draw the default to the
notice of the consumer in writing’ and make proposals as to
ways in which the consumer can
bring payments up to date. Section
129(1)
(b)
provides that the credit
provider may not commence legal proceedings to enforce a credit
agreement before first ‘providing’
the consumer with the
notice referred to in (
a
).
These sections have been subject to considerable interpretation
already: suffice it to say for the moment that this court has
held
that despite the fact that s 129(1)
(a)
says that the credit
provider ‘may’ draw the default to the notice of the
consumer, the former is actually required
by the section to do so. It
is an essential pre-litigation step:
Nedbank
Ltd v National Credit Regulator.
3
Moreover, s 130(1)
(a)
of the NCA provides that
a credit provider may approach a court to enforce a credit agreement
only after at least ten business days
have elapsed since ‘the
credit provider
delivered
a notice to the consumer
as contemplated in . . . s 129(1) . . .’. (My emphasis.)
[5] The sections, in so
far as relevant, are set out here for the sake of completeness.
‘
129
Required
procedures
before debt enforcement
(1) If
the consumer is in default under
a
credit
agreement
,
the
credit
provider
—
(
a
)
may
draw
the default to the notice of the consumer in writing
and
propose that the consumer refer the
credit
a
greement
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
(
b
)
subject to
section
130 (2)
, may not commence any legal proceedings to enforce
the agreement before—
(i)
first
providing
notice to the consumer
,
as contemplated in
paragraph
(a)
,
. . .; and
(ii)
meeting any further requirements set out in
section
130
.
.
. .’.
(My emphasis.)
‘
130
Debt
procedures in a Court
(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
.
. .’.
(My emphasis.)
[6] The question to be
answered is: what do the phrases that refer to the drawing of the
default to the ‘notice’ of
the consumer, ‘providing
notice’ to the consumer and ‘delivering a notice to the
consumer’, variously used
in ss 129 and 130, mean and what is
required of the credit provider? Delivery is the only phrase
expressly regulated by the NCA
in the section that gives the consumer
the right to receive documents. Section 65 provides:
‘
(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 the
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 email; 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
).’
[7] Subsections 65(1) and
(2) must be read with s 96 which regulates the address for notice. It
reads:
‘
(1)
Whenever
a party to a credit agreement is required or wishes to give legal
notice to the other party for any purpose contemplated
in the
agreement, this Act or any other law, the party giving notice must
deliver that notice to the other party at—
(a)
The address of that
other party as set out in the agreement, unless paragraph (
b
)
applies; or
(b)
The address most recently
provided by the recipient in accordance with subsection (2).
A
party to a credit agreement may change their address by delivering
to the other party a written notice of the new address by
hand,
registered mail, or electronic mail, if that other party has
provided an email address.’
[8] The failure of the
drafters of the Act to be consistent in their use of terms, and their
stated requirements, makes the interpretation
of the NCA
extraordinarily difficult. The inconsistency, and the confusion that
ensues, are evident in the reference in s 65 to
ordinary mail, and in
s 96 to registered mail. Which is intended?
A synopsis of the
interpretations of the NCA requirements
[9]
Although I shall turn to the proper construction of these
requirements only later in the judgment, I think it necessary, before
considering the orders made in the court below, to set out what this
court decided on the interpretation of ss 129(1) and 130(1)
and how
Sebola
extended that. In
Rossouw
v Firstrand Bank Ltd
4
this court considered the
meaning of delivery in ss 129 and 130 of the NCA, and concluded that
dispatch by registered post was sufficient
for the s 129(1) notice.
That despite the fact that s 65 refers to ordinary mail. In that case
the consumer had chosen registered
mail as the mode of delivery. Maya
JA held that, because registered mail is a more reliable means of
postage, it was covered by
s 65 and 96. It did not offend against the
provisions of s 65(2) which refers to ordinary mail. She pointed out
that this interpretation
was supported by s 168 of the NCA which
provides that, unless otherwise provided in the Act, a notice that
must be ‘served’
on a person will be ‘properly
served’ when it is either delivered (in the sense, I assume, of
s 96) or sent by registered
mail. Maya JA concluded that the various
provisions in the NCA ‘put it beyond doubt that the legislature
was satisfied that
sending a document by registered mail is proper
delivery’.
5
[10]
Maya JA continued:
6
‘
It
appears to me that 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. With every choice lies a responsibility, and
it is after
all within a consumer’s sole knowledge as to which means of
communication will reasonably ensure delivery to
him. It is entirely
fair in the circumstances to conclude from the legislature’s
express language in s 65(2) that it considered
despatch of a notice
in the manner chosen by the appellants in this matter sufficient for
purposes of s 129(1)(
a
),
and that actual receipt is the consumer’s responsibility.’
[11]
But the Constitutional Court considered, in
Sebola
,
that proof of mere dispatch was not enough. There had in addition to
be proof of receipt at the post office to which the notice
was
dispatched. I shall return to this finding, and its implications, for
they are the crux of the appeal. As I have said, the
implications
have been differently interpreted by the high courts. In the case
before us, Absa contended that the decision of the
high court was
wrong in its interpretation, which was that even where receipt by the
post office was proven, if there was also
proof that the consumer had
not collected the s 129(1) notice, the notice had not been properly
provided.
[12] In this case the
credit provider, Absa, adduced evidence that although notices
dispatched by registered post had been received
by the chosen post
offices, and notifications sent to the consumers, the notices had not
been collected. Olsen AJ concluded that
he could not ignore this fact
for reasons to which I shall turn later. Accordingly, he postponed
the applications for default judgment
and required Absa to take
further steps before setting the matters down for hearing again.
[13] Olsen AJ made the
following order:
‘
(1)
The application for default judgment is postponed
sine
die
.
(2) The plaintiff is afforded an
opportunity to provide a notice to the defendant as contemplated in
s
129(1)
of the
National Credit Act of 2005
through one or more of the
mechanisms listed in s 65(2)
(a)
of the Act, and also by
registered post directed to the defendant's chosen address.
(3) Such notice must, in
addition to meeting the requirements of s 129(1)
(a)
of the
Act, also draw the defendant's attention to—
the fact that action has
already been instituted against the defendant, the relevant case
number and the fact that an application
for default judgment has
been postponed
sine die
;
the current amount of arrears;
the fact that the defendant's
rights in terms of the Act, and in particular those contemplated by
s 129(1)
(a)
of the Act, are unaffected by the fact that
action has already been instituted.
The plaintiff is granted leave
to set down the application for default judgment on notice to
the defendant, but may not do
so until at least 10 business days
shall have elapsed since delivery of the notice referred to in para
(2) of this order; or
if that date is not known, since the date by
which the plaintiff contends that such delivery must have been
effected.
(5) The
application for default judgment shall be accompanied by evidence
on oath—
(a)
establishing
to the best of the plaintiff's ability that the notice required by
para (2) of this order was provided
to the defendant, and explaining
the plaintiff's choice of mode of delivery of the notice; and
(b)
dealing with the
matters referred to in s 130(1)
(b)
of the National Credit Act.
(6) (
a)
The costs
incurred in producing the evidence placed before the court for
hearing on 28 June 2012, and all other costs incurred in
connection
with that hearing, shall be paid by the plaintiff.
(b)
Save
as aforesaid, the costs of the action to date are reserved for later
determination.’
[14]
The high court gave Absa leave to appeal against the order on the
basis that there was a reasonable prospect that it would
succeed on
appeal given the different approach in the
Binneman
matter in the Western
Cape High Court, and that the default judgments that he had declined
to grant might be obtained on appeal.
Olsen AJ took into
consideration also the conflict between decisions of the different
high courts and stated that the question
must be settled by this
court.
[15] As I have said, this
court, at the hearing of the appeal, questioned whether the order was
appealable, given that it granted
a postponement of applications for
default judgments. Counsel were asked to provide written heads of
argument on appealability
after the hearing, which they did, and for
which I am grateful.
Appealability
[16]
Absa and SERI argued that the order was not simply one for the
postponement of an application for default judgment: before
Absa
could set the matters down for hearing again it was required to take
various steps which it considered should not have been
required of
it. The judgment in
Sebola
,
Absa argued, had been misinterpreted and requirements were imposed on
it incorrectly: it should not be precluded from obtaining
the orders
should it fail to take the steps required of it by the high court
order. The order was thus definitive of the rights
of the parties and
final in effect: Absa could not set the matters down again unless it
took those steps.
[17]
Although the order made by the high court does not appear to meet all
the tests laid down by this court in
Zweni
v Minister of Law and Order
7
(the order must be final
in effect and not susceptible to alteration; it must be definitive of
the rights of the parties, granting
definite and distinct relief; and
it must dispose of at least a substantial portion of the relief
claimed), those requirements
are neither cast in stone nor
exhaustive. This much was said in
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service.
8
Hefer
JA pointed out that the tests did not deal with ‘a situation
where the decision, without actually defining the parties’
rights or disposing of any of the relief claimed in respect thereof,
yet has a very definite bearing on these matters’. Thus
a
refusal by a judge to recuse himself from a matter was held to be a
judgment or order susceptible to appeal.
[18]
In
Jacobs
v Baumann NO
9
this court said that in
determining whether or not an order is final one must have regard not
only to its form but ‘predominantly,
its effect’. If an
order ‘irreparably anticipates or precludes some of the relief
which would or might be given at
the hearing’ it will be
appealable. Similarly, in
NDPP
v King
Harms
DP said
10
that the test was whether
the order made was in substance, and not in form, final in effect.
The same principle was echoed by Nugent
JA in a separate judgment. He
said, in response to an argument that an order for the production of
documents was interlocutory
and thus not appealable:
11
‘
I
pointed out in
Liberty
Life
[
Liberty
Life Association v Niselow
12
]
that while the classification of the order [as interlocutory] might
at one time have been considered to be determinative of whether
it
was susceptible to an appeal the approach that has been taken by the
courts in more recent times has been increasingly flexible
and
pragmatic. It has been directed more to doing what is appropriate in
the particular circumstances than to elevating the distinction,
between orders that are appealable and those that are not, to one of
principle.’
[19]
Nugent JA referred to the judgment of Hefer JA in
Moch
and repeated that the
Zweni
tests are not decisive.
In my view, the order in this matter rests on a final determination
of an issue underlying the applications
for default judgment: that
default judgment cannot be given against a consumer where, although a
s 129(1) notice has been
sent by registered post, and received
at the post office for the consumer’s domicilium, if there is
evidence to show that
the notice was not collected by the consumer,
the notice has not in effect been given. But for that conclusion, the
applications
for default judgments would not have been postponed. The
remainder of the order was based on irrevocable findings on Absa’s
obligations under the NCA. Unless those findings are overturned on
appeal, Absa is bound to take the steps required by the order
before
exercising its right to obtain default judgments.
[20]
The argument of Mr Pammenter, as amicus, was that the order was not
appealable as it was merely dilatory in effect, and that
Absa was
still free to proceed under s 130(4)(
b
)(ii)
of the NCA. The argument overlooks the requirements that had to be
met before it could proceed: it could not set the matters
down again
unless and until it had given another notice under s 129(1) which, in
addition to meeting the requirements of the section,
had to draw to
the attention of the consumers that an action had already been
instituted and application for default judgment sought;
set out the
then current amount of arrears and the fact that the consumers’
rights were unaffected by the institution of
action. Absa was
required also to provide evidence on oath establishing, to the best
of its ability, that the notice was provided
to the consumers and
explaining Absa’s choice of mode of delivery. If these
requirements were not warranted by the decision
in
Sebola
,
what other path could Absa have followed to enforce its rights?
[21]
A further consideration to be taken into account in determining
whether an order is susceptible to appeal is what the court
intended
to achieve in its judgment or order. In
SA
Eagle Versekeringsmaatskappy Bpk v Harford
13
Harms AJA said that the
decisive question was what the aims of the parties had been with the
litigation and what the court had intended
to achieve. If the court
had not intended to come to a provisional conclusion that could be
amended then its judgment was susceptible
to appeal. In this matter
Olsen AJ reached firm findings – not provisional conclusions –
on what was required for enforcement
of the credit agreements before
him and made an order accordingly. The refusal to grant the
applications for default judgments
before those steps were taken was
based not simply on the facts of the particular case. It was based on
a finding of law that in
my view is susceptible to appeal.
14
[22] This is borne out by
having regard to the effect of the order, which was to add to the
obligations of Absa, as credit provider,
under the NCA. That order
had a very definite bearing on the relief sought by Absa. It was not
merely the postponement of a hearing.
Nor was a default judgment, or
its refusal, itself the subject of the proposed appeal. It was those
parts of the order imposing
obligations on Absa, and a refusal to
grant the relief sought until those obligations were met, that I
consider appealable.
[23]
In the light of the view that I take of this issue it is not
necessary to consider Absa’s alternative argument that this
court should, in the interests of justice and in terms of ss 39(2)
and 173 of the Constitution, develop the common law rules as
to
appealability. I would merely point out that this is not a matter of
extending the common law: the court is bound by the Supreme
Court Act
59 of 1959.
15
It cannot assume
jurisdiction it does not have. The Constitutional Court has
suggested, in
Khumalo
v Holomisa
,
16
that the test for hearing
appeals in that court should be whether it is in the interests of
justice to do so, and that that test
would embrace the considerations
that have led this court to limiting the meaning of the words
‘judgment or order’
in s 20 of the Supreme Court Act. The
test is not one that has been applied in this court.
17
[24]
It is also not necessary for me to consider the argument that high
courts are waiting for guidance from this court on the meaning
of
Sebola
,
as a consideration in determining appealability. The interests of
justice test has not been adopted by this court as the yardstick.
And, in the light of the conclusion that I have reached that the
orders of Olsen AJ are appealable in accordance with the principles
developed by this court, it is unnecessary to consider that test at
this stage.
[25]
Having found that the order made by Olsen AJ is susceptible to
appeal, I turn now to the merits of the appeal. The judgment
of the
Constitutional Court in
Sebola
must first be considered.
Sebola
[26]
The consumers in this matter, Mr and Mrs Sebola, had applied to a
high court for rescission of a default judgment against them
allowing
the Standard Bank to recover under a credit agreement (a home loan).
Before claiming default judgment the bank sent a
notice to the
Sebolas by registered mail. The high court (South Gauteng) granted
default judgment, and a full court, on appeal,
dismissed the appeal,
relying on the judgment of this court in
Rossouw
.
Since there was proof that the s 129(1) notice had been sent by
registered mail (although it was accepted that the Sebolas had
not
actually received the notice) the full court held that the judgment
in execution could go ahead. The Constitutional Court allowed
a
direct appeal to it on the basis that it was in the interests of
justice to do so, and despite the fact that the bank had abandoned
the judgment that it had obtained.
[27]
The loan agreement was concluded in November 2007, and as security
for the loan a mortgage bond was registered against the
Sebolas’
property. In the agreement the Sebolas chose the mortgaged property
as the address where notices and legal documents
in legal proceedings
should be served. In addition, they specified a post office address
at which letters, statements and notices
‘may be delivered’.
They also agreed that ‘any letters and notices posted to this
address by the Bank by registered
post will be regarded as having
been received within 14 (fourteen) days after posting’.
18
[28]
In 2009, when the Sebolas had fallen into arrears with the bond
repayments, the bank sent a notice in terms of ss 129 and 130,
specifying the options that were available to them. The notice was
dispatched by registered mail to the post office address specified
by
them in the agreement. However, the postal services diverted the
notice to the wrong post office. The bank had thus on the face
of it
done what this court in
Rossouw
considered was sufficient
to draw the attention of the Sebolas to its proposed action for
payment of the full amount outstanding
under the loan agreement, and
for an order that the property was executable. The high court had
accordingly granted default judgment,
and declared the property
executable, when the Sebolas did not defend the action. The high and
full courts considered that rescission
of the judgment was not
warranted. The Constitutional Court, however, gave leave to appeal
and upheld the appeal after a comprehensive
construction of the
various provisions of the NCA that deal with the modes of giving
notice. (A minority in that court construed
the provisions
differently, requiring actual delivery, but would also have upheld
the appeal.)
[29]
I do not propose to set out the reasoning of the majority at length.
The essence of the approach adopted by Cameron J was that
the NCA had
to be considered as a whole, and that its purposes, expressly set out
in s 3, were fundamental to the construction
of the provisions in
question. In particular he referred to s 3(
a
)
which states as one of its purposes the promotion of ‘the
development of a credit market that is accessible to all South
Africans, and in particular to those who have historically been
unable to access credit under sustainable market conditions’;
and to s 3(
d
)
which states as a purpose ‘promoting equity in the credit
market by balancing the respective rights and responsibilities
of
credit providers and consumers’.
[30] Three amici curiae
were admitted: SERI, the National Credit Regulator (NCR) and the
Banking Association of South Africa (BASA).
SERI argued that the s
129(1) notice must come to the actual attention of the consumer. NCR
put forward the view that s 129(1)
is satisfied when the credit
provider has taken the steps necessary to satisfy the court that the
notice actually reached the address
specified by the consumer. And
BASA submitted that it was not in the interests of justice to decide
the appeal as the evidence
before the court was inadequate.
[31] The court, BASA
argued, did not have the information needed to determine the effect
of the arguments advanced by the other
amici. BASA contended that if
the SERI or NCR requirements had to be satisfied the costs to credit
providers would run into ‘hundreds
of millions of rands’
which would increase the cost of providing credit to the detriment of
consumers. BASA filed an affidavit
to this effect. It does not appear
from the majority judgment that the affidavit was taken into account.
The same affidavit was
filed in the Absa matter which is now before
this court, and the high court did refer to it – a matter to
which I shall return.
[32]
In reaching its conclusions, the majority started from the premise
that, although
Rossouw
was correct in finding
that the consumers had made a choice as to the means by which the
notice should reach them, and that with
that choice came
responsibility (the passage is set out above), this had to be weighed
against the fact that most credit agreements
are standard documents
that do not entail genuine choices, and that ‘a fair reading of
the statute demands that the consequences
ascribed to the consumer's
choice of communication method be off-set against the pivotal
significance of the s 129 notice’.
19
[33]
Cameron J continued:
20
‘
These
considerations drive me to conclude that the meaning of "deliver"
in s 130 cannot be extracted by parsing
the words of the
statute. It must be found in a broader approach – by
determining what a credit provider should be required
to establish,
on seeking enforcement of a credit agreement, by way of proof that
the s 129 notice in fact reached the consumer.
As pointed out
earlier, the statute does not demand that the credit provider prove
that the notice has actually come to the attention
of the consumer,
since that would ordinarily be impossible. Nor does it demand proof
of delivery to an actual address. But given
the high significance of
the s 129 notice, it seems to me that the credit provider must make
averments that will satisfy the court
from which enforcement is
sought that the notice, on balance of probabilities, reached the
consumer.
Hence,
where the notice is posted, mere despatch is not enough. This is
because the risk of non-delivery by ordinary mail is too
great.
Registered mail is in my view essential. Even though registered
letters may go astray, at least there is a "high degree
of
probability that most of them are delivered" [A reference to
Maharaj
v Tongaat Development Corporation (Pty) Ltd
1976
(4) SA 994
(A).]
But
the mishap that afflicted the Sebolas' notice shows that proof of
registered despatch by itself is not enough. The statute requires
the
credit provider to take reasonable measures to bring the notice to
the attention of the
consumer,
and
make
averments that will satisfy a court that the notice probably reached
the consumer, as required
by
s 129(1). This will ordinarily mean that the credit provider
must provide proof that the notice was delivered to the correct
post
office.
In
practical terms, this means the credit provider must obtain a
post-despatch "
track
and
trace"
print-out from the website of the South African Post Office. As
BASA's submission explained, the
"track
and
trace"
service enables a despatcher who has sent a notice by registered mail
to identify the post office at which it arrives
from the Post Office
website. This can be done quickly and
easily.
The registered item's number is entered, the location of the item
appears, and
it
can be print
ed.
The
credit provider's summons or particulars of claim should allege that
the notice was delivered to the relevant post office
and
that
the post office would, in the normal course, have secured delivery of
a registered item notification slip, informing the consumer
that a
registered article was available for collection.
Coupled
with proof that the notice was delivered to the correct post office,
it may reasonably be assumed in the absence of contrary
indication,
and
the
credit provider may credibly aver, that notification of its arrival
reached the consumer
and
that
a reasonable consumer would have ensured retrieval of the item from
the post office.
The
evidence required will ordinarily constitute adequate proof of
delivery of the s 129 notice in terms of s 130. Where the credit
provider seeks default judgment, the consumer's lack of opposition
will entitle the court from which enforcement is sought to conclude
that the credit provider's averment that the notice reached the
consumer is not contested.
If,
in contested proceedings, the consumer asserts that the notice went
astray after reaching the post office, or was not collected,
or not
attended to once collected, the court must make a finding whether,
despite the credit provider's proven efforts, the consumer's
allegations are true,
and,
if so, adjourn the
proceedings
in terms of section 130(4)
(b)
.’
(My emphasis.)
[34]
The majority thus concluded that because the bank could not show that
the s 129(1) notice had reached the correct post
office, the
Sebolas were entitled to rescission of the default judgment against
them. ‘The proceedings against them should
have been adjourned
to allow the Bank to rectify the omission in regard to the notice.’
21
[35]
Cameron J concluded:
22
‘
For
these reasons, adding the indications the Act offers to the signal
importance the notice occupies in the statutory scheme, I
conclude
that the obligation s 130(1)
(a)
imposes
on a credit provider to "deliver" a notice to the consumer
is
ordinarily
satisfied
by proof that the credit provider sent the notice by registered mail
to the address stipulated by the consumer in the
credit agreement
,
and
that
the
notice was delivered to the post office of the intended recipient for
collection there. [My emphasis.]
To
sum up: The requirement that a credit provider provide notice in
terms of s 129(1)
(a)
to
the consumer must be understood in conjunction with s 130, which
requires delivery of the notice. The statute, though giving
no clear
meaning to "deliver", requires that the credit provider
seeking to enforce a credit agreement
aver
and
prove
that
the notice was delivered to the consumer. Where the credit provider
posts the notice, proof of registered despatch to the address
of the
consumer, together with proof that the notice reached the appropriate
post office for delivery to the consumer,
will
in the absence of contrary indication
constitute
sufficient proof of delivery. If, in contested proceedings, the
consumer avers that the notice did not reach him or her,
the court
must establish the truth of the claim. If it finds that the credit
provider has not complied with s 129(1), it must in
terms of section
130(4)
(b)
adjourn
the
matter
and
set
out the steps the credit provider must take before the matter may be
resumed.’ (My emphasis.)
[36]
The notice did not reach the correct post office in
Sebola
.
Hence the decision of the Constitutional Court that mere proof of
posting by registered mail was not enough, and hence the requirement
of proof of receipt by the correct post office. But what if the s
129(1) notice is sent to and received at the correct post office,
but
is not collected by the consumer despite notification having been
sent to him or her? That is the problem that faced the high
court in
this matter, and the other matters that I referred to at the outset.
It is far from an unusual occurrence, as these matters
demonstrate
and as the evidence before the high court showed. I turn then to the
facts giving rise to this appeal.
The context in which
Absa sought default judgments
[37]
Absa sought default judgment against four defendants (consumers) (in
three separate matters), having instituted action to enforce
its
rights under written agreements of loan, all secured by mortgage
bonds over the consumers’ properties. All four had defaulted.
Prior to instituting action Absa had sent s 129(1) notices by
registered mail to the correct post offices. Track and trace reports
attached to the summons in each case showed that although
notification had been sent to each of the consumers, they had not
collected
the notices. The notices had been sent back to the sender.
There was nothing to suggest that the notifications had not reached
the consumers. Olsen AJ considered that the effect of the judgment in
Sebola
was that, where a court
knew that a s 129(1) notice had not been received by the consumer, it
was required to adjourn the proceedings
and make orders setting out
the steps that Absa had to take before it could re-enrol the matters.
I set out the full order and
the steps required by the high court
earlier.
[38]
Absa’s argument on appeal was that on the evidence before the
court it was probable that the notifications sent by the
post office
had reached the consumers’ chosen addresses and that they had
chosen not to collect the notices. It thus submitted
that the issue
on appeal was whether the requirements of s 129(1)(
b
)(i)
are satisfied if it is shown, on a balance of probabilities, that the
consumers were aware that the notices were sent to them
but elected
not to collect them.
[39]
Absa was able to show that in each case the consumer was aware of his
or her default and that Absa intended instituting action
to enforce
payment. At the very least, it argued, the consumers in these matters
were aware that there was a communication from
Absa awaiting
collection. Sending the notice by registered mail and showing receipt
at the correct post office was sufficient compliance
with the
decision in
Sebola
.
That was the approach adopted by the Western Cape High Court in
Nedbank
v Binneman
.
23
Absa argued thus that the
court should work on the assumption that, where it was established
that the notice was sent by registered
mail, received at the correct
post office, and that notification was sent to the consumer, the
consumer had deliberately refrained
from collecting the notice. The
amici pointed out, however, that there might be other reasons why a
notice was not collected and
that no such assumption could
justifiably be made.
[40] The high court had
regard to an affidavit of a legal adviser employed by Absa, Mr H W
Valentine, who explained the steps
taken by Absa to ensure that
defaulting consumers were aware that they were in arrears, and that
action against them was proposed.
I need not traverse those steps.
Suffice it to say that Absa’s systems ensured that several
notices were given to each defaulter
before the s 129(1) notice was
dispatched and attempts were made to contact him or her by telephone
as well. Consumers who had
properties mortgaged as security for their
debts were offered assistance in selling them. Only after the
consumer was in arrears
for a lengthy period were instructions given
to Absa’s attorneys to collect the debts – to institute
action. Valentine
attached reports showing the steps that had been
taken by Absa in respect of the particular consumers against whom the
action was
brought. The records showed that all three were aware that
action was on the cards.
[41]
Valentine expressed the view that when a consumer is advised that a
document, sent by registered mail, should be collected
from the post
office, he or she would avoid it as it meant ‘trouble’.
Valentine attached to his affidavit affidavits
from a number of
attorneys who acted for Absa in collecting debts. They too averred
that a great number of consumers simply failed
to collect registered
mail, and that the number returned to the sender suggested that the
notifications had not simply gone astray.
Valentine set out
statistics showing the percentages of notices returned to Absa. It
appears that in a majority of cases the notices
were returned. It is
not necessary to evaluate this evidence. Olsen AJ dealt with it
comprehensively in his judgment.
24
Nor is it necessary or
even possible to contest it. And of course it was uncontested before
the high court as the consumers did
not defend the actions or respond
to the applications for default judgments.
25
[42]
The high court also had regard to the affidavit that had been placed
before the Constitutional Court in
Sebola
by BASA. BASA declined to
intervene in this matter, but agreed that Absa could place it before
the high court. That affidavit also
set out statistics showing the
number of consumers in arrears, and the extensive degree of consumer
indebtedness in South Africa.
[43]
In addition, the high court considered an affidavit of an employee of
the post office and accepted that when a notice sent
by registered
mail is unclaimed it is not generally possible to ascertain why that
is so. It found also that the postal system
that was discussed in
Maharaj
,
26
on which Cameron J relied
in
Sebola
,
had changed. At the time when
Maharaj
was decided registered
mail was delivered to the addressee’s postal address. Proof of
delivery was thus, at least prima facie,
proof of receipt. The
present position is that when registered mail is received at a post
office it sends a notification to the
intended recipient’s
address by ordinary mail. If the registered mail is not collected
within ten days a second and final
notification is sent in the same
way. If the addressee comes to collect the registered mail but
declines to accept it, the track
and trace report reflects that it
has been refused. Uncollected mail is returned to the sender 30 days
after it has been received
at the post office.
[44]
Olsen AJ considered that the evidence before him did not establish
‘that the current system of registered post is not
as good as
the one employed in 1976’. But he did conclude that ‘the
current system is more often than not inadequate
when employed to
bring notices to the actual (as opposed to presumed) attention of
consumers who are in financial distress’.
27
He expressed the view
that ordinary postal delivery is a more reliable means of bringing
notices to the actual attention of consumers.
That may be so. It is
not necessary to consider the correctness of the assumption. There is
no evidence to support it, and in any
event this court is bound by
the decision in
Sebola
that requires s 129(1)
notices to be sent by registered mail. It is unfortunate, however,
that the Constitutional Court did
not heed the request of BASA to
postpone the hearing so that evidence as to effective methods of
bringing notices to the attention
of consumers could be adduced.
The high court’s
interpretation of
Sebola
[45]
Although Absa argued in the high court that the majority decision in
Sebola
did not overrule the
decision of this court in
Rossouw
–
that the risk of
non-delivery lies with the consumer when he or she has chosen a
method of delivery – Olsen AJ rejected that
argument. It will
be recalled that in
Sebola
the Sebolas had chosen a
post office address to which notices should be sent. The notice had,
however, gone astray. Cameron J said,
in the passage above, that if,
in contested proceedings (I assume that the reference is to a
defended action, opposed application
for default judgment or an
application for rescission of a default judgment) the consumer
asserts that the notice had gone astray,
or not been collected, ‘the
court must make a finding whether, despite the credit provider’s
proven efforts, the consumer’s
allegations are true, and, if
so, adjourn the proceedings in terms of s 130(4)
(b
)’.
[46]
That, it seems to me, is crucial to the
Sebola
decision: the consumer
does not, ultimately, take responsibility for his or her choice. The
risk of non-delivery lies with the credit
provider. Accordingly, the
high court correctly found that it could not ignore conclusive
evidence that the notice did not come
to the consumer’s
attention. Olsen AJ said that what the majority in
Sebola
had decided was that,
although a credit provider has only to prove on a balance of
probabilities that notice has been provided,
there was a
qualification to the usual standard: ‘proof positive of the
fact that the notice did not reach the consumer trumps
any conclusion
which may be drawn from facts which suggest that the notice ought to
have reached the consumer’.
28
[47]
It was impossible for a court to be satisfied that a notice did reach
a consumer, where it had been dispatched by registered
mail and
received at the correct post office, if there was evidence to the
contrary, said the high court.
29
That conclusion was
fortified by the passage in
Sebola
cited above.
30
And that in turn was
fortified by the statement in
Sebola
that ‘it may
reasonably be assumed in the absence of contrary indication, and the
credit provider may credibly aver, that
notification of its arrival
reached the consumer and that a reasonable consumer would have
ensured retrieval of the item from the
post office’.
31
[48]
The assumption, as the evidence before the high court demonstrated,
is not correct. But the high court’s conclusion that
that is
what the Constitutional Court required cannot be faulted. If the
court is faced with allegations that the notice was not
brought to
the attention of the consumer, it must adjourn the proceedings in
terms of s 130(4)
(b)
.
[49] Absa argued that the
result was extraordinary and absurd. The effect may well be
unfortunate, as was demonstrated in the high
court. But it is the
necessary implication of the decision of the majority in the
Constitutional Court. That court’s conclusion
was based on the
faulty assumption that registered mail is an effective means of
bringing a s 129(1) notice to the attention of
a consumer.
[50]
The conclusion, Absa submitted, would have the result that a consumer
who deliberately avoided collection of the notice, could
frustrate
the credit provider’s right. The answer to that is that where
there is proof of deliberate failure to collect the
notice, after
adjourning the hearing, and prescribing the steps to be taken by the
credit provider, the court may conclude that
the consumer was acting
in bad faith and enter judgment. The Eastern Cape High Court,
Grahamstown (Alkema J), faced with the same
difficulties as those in
this appeal, while agreeing with the approach of Olsen AJ, suggested
that where the facts show that the
consumer was residing at the
chosen domicilium, that the notice was sent to the correct post
office, that notification was sent
to the correct address and there
is no ‘satisfactory explanation’ why the consumer did not
collect it, a finding of
‘fictional fulfilment’ would be
appropriate.
32
[51]
I do not think it necessary to go so far. The purpose of s 130(4)
(b)
is to require the court,
where a credit provider that has not complied with any provision of
the NCA (in this instance it would
be non-compliance with s 129(1),
as interpreted in
Sebola
),
to adjourn the matter and ‘make an appropriate order setting
out the steps the credit provider must complete before the
matter may
be resumed’. Once the credit provider complies with the court
order, when the matter is set down again the court
will doubtless be
able to grant judgment. As Alkema J pointed out,
33
the adjournment will
increase the burden on the credit provider and on the courts, and
will of course increase the cost of providing
credit. But that is the
consequence of the poorly drafted NCA and the interpretation of its
provisions by the Constitutional Court.
That court appreciated that
consumers would bear the additional costs of obtaining credit by
requiring proof of receipt of notices
sent by registered mail at post
offices. But that was warranted by the importance of ensuring that s
129(1) notices be provided
to consumers. Cameron J said:
34
‘
I
accept that this judgment may heighten the cost of credit and that
this will affect the pockets of not only credit institutions
but also
consumers, particularly those new to the credit market. That is a
social burden the legislation imposes. The alternative
would be to
underplay the importance of the notice, and under-weigh the impact of
the wording of s 129.’
[52]
The costs of adjourning matters so that credit providers can take
further steps and give evidence by way of affidavit to establish
‘to
the best of the plaintiff’s ability that the notice . . . was
provided to’
35
the consumer and
explaining the credit provider’s choice of mode of delivery,
will add to that which would have been foreseen
by the Constitutional
Court. But that does not make the order of the high court incorrect.
[53] In all the
circumstances I would have dismissed the appeal.
_____________
C H Lewis
Judge of Appeal
PONNAN JA (SHONGWE AND SALDUKER JJA CONCURRING):
[54] I have read the judgment of Lewis JA and regret
that I cannot agree with my learned colleague that the order of the
high court
is indeed appealable.
[55] Section 20(1) of the Supreme Court Act 59 of 1959
creates a right of appeal to this court from a ‘judgment or
order’
of the high court. Whether a decision is appealable has
been the subject of detailed analysis in a number of cases over the
years.
A comprehensive re-examination of those cases would serve
little purpose. The salient principles to be distilled from those
cases
appear in the judgment of Harms AJA in
Zweni v Minister of
Law and Order
1993 (1) SA 523
(A). It was said there (at
532J-533A) that a judgment or order is a decision which, as a general
principle, has three attributes:
first, the decision must be final
in effect and not susceptible to alteration by the court that made
it; second, it must be
definitive of the rights of the parties; and,
third, it must have the effect of disposing of at least a substantial
portion of
the relief claimed in the main proceedings.
[56] What served before the high court was an
application for default judgment. A default judgment is a judgment
entered or given
in the absence of the party against whom it is made.
Ordinarily it arises for consideration in consequence of a failure to
enter
an appearance to defend or where there has been a failure to
file a plea. The high court was concerned with the former. It
postponed
the application for default judgment
sine die
(paragraph
1 of its order). Had the matter ended there, that order could not
have been described as one having any of the attributes
for
appealability laid down in
Zweni
. The order went further
however.
[57] In paragraph 2 of its order the high court
‘afforded [Absa] an opportunity to provide a notice to the
defendant as contemplated
in section 129(1) of the National Credit
Act of 2005 through one or more of the mechanisms listed in paragraph
65(2)(a) of the
Act, and also by registered post directed to the
defendant's chosen address’. And, in paragraph 4, which to all
intents and
purposes is the logical corollary of paragraph 1, the
high court granted Absa leave to, in due course, set down the
application
for default judgment on notice to the defendant. The
remaining orders are ancillary orders and thus warrant no independent
consideration.
[58] There appear to be strong indicators in the
judgment of the high court that the order that it proposed issuing
was neither
definitive of the rights of the parties nor intended to
have the effect of disposing of any portion of the relief claimed in
the
main action. The high court held:
'[60] I conclude, accordingly, that in the three matters before me
there has not been compliance with the procedures required by
section
129 of the Act, as a result of which I must adjourn these matters and
make appropriate orders as to the steps ABSA must
complete before
these matters may be resumed.
. . . .
[71] In the three cases before me I do not have all of the
information I have referred to above. But given the exigencies of the
occasion, I propose to work around that.
. . . .
[77] I propose in these cases to leave all options provided by
section 65(2) of the Act open. One or more of the other alternatives,
including delivery by hand to the address (if not into the hands of
the consumer), may be found more convenient, or more likely
to
generate a successful application to resume the proceedings,
depending on the information available to ABSA concerning the
consumers in question, and depending on the administrative capacity
and manpower available to ABSA to service these matters.'
[59] To my mind paragraph 2 of the order, on which the
present debate turns, did not render what would otherwise have been a
non-appealable
order (paragraph 1), appealable. For, it amounted to
no more than a direction from the high court, before the main action
could
be entered into, as to the manner in which the matter should
proceed. Being a preparatory or procedural order that was incidental
to the main dispute, it fell into what has been described as the
general category of ‘interlocutory’. And as Schreiner
JA
put it in
Pretoria Garrison Institutes v
Danish Variety Products (Pty), Limited
1948
(1) SA 839
(A) at 870:
‘
. . . [S]ince the decision of this Court
in
Globe and Phoenix GM Company v
Rhodesian Corporation
(1932 AD 146)
the
test to be applied has appeared with some certainty, whatever
difficulty must inevitably remain in regard to its application.
From
the judgments of Wessels and Curlewis JJA, the principle emerges that
a preparatory or procedural order is a simple interlocutory
order and
therefore not appealable unless it is such as to “dispose of
any issue or any portion of the issue in the main
action or suit”
or, which amounts, I think, to the same thing, unless it “irreparably
anticipates or precludes some
of the relief which would or might be
given at the hearing”. The earlier judgments were interpreted
in that case and a clear
indication was given that regard should be
had, not to whether the one party or the other has by the order
suffered an inconvenience
or disadvantage in the litigation which
nothing but an appeal could put right, but to whether the order bears
directly upon and
in that way affects the decision in the main suit’.
[60] Of the term ‘interlocutory’
Corbett JA stated in
South
Cape Corporation (Pty) Ltd v Engineering Management Services
(Pty) Ltd
1977
(3) SA 534 (A)
at 549:
‘
In a wide and general sense the term
"interlocutory" refers to all orders pronounced by the
Court, upon matters incidental
to the main dispute, preparatory to,
or during the progress of, the litigation.’
Corbett JA added
:
‘
But orders of this kind are divided into
two classes: (i) those which have a final and definitive effect on
the main action; and
(ii) those, known as "simple (or purely)
interlocutory orders" or "interlocutory orders proper",
which do
not. . .’
That distinction, according to Harms JA (
Zweni
at 534B-D), is now of little consequence. He
explains that ‘the practical implication of s 20(1) is
that the real distinction
is between a “judgment or order”
on the one hand and a decision (conveniently called a “ruling”)
which
is not. It is no longer necessary or conducive to clear
thinking to consider, in this context, whether a decision is a simple
interlocutory
order’.
[61] In the present case the ‘main suit’ or
‘main action’ is Absa’s claim. An order such as
that in
paragraph 2 is, I conceive, a ‘preparatory or
procedural order’ which does not bear upon or in any way affect
the decision
in the main action. In
Tropical
(Commercial & Industrial) Ltd v Plywood Products Ltd.
1956 (1) SA 339
(A) at 344 Centlivres
CJ held:
'As the order made by the trial Judge "decided
no definite application for relief" and was merely a direction
as to the
manner in which the case should proceed it was not an order
in the legal sense,
vide Dickinson's
case,
supra
.
Not being an order in the legal sense, it was not an order which fell
within the meaning of the words "judgment or order"
in sec.
2
(c)
of
the Act.'
In
Dickinson & another v
Fischer’s Executors
1914 AD 424
, which
is referred to with approval by the learned Chief Justice, Innes CJ
stated (at 427):
'But every decision or ruling of a court during the progress of a
suit does not amount to an order. That term implies that there
must
be a distinct application by one of the parties for definite relief.
The relief prayed for may be small, as in an application
for a
discovery order, or it may be of great importance, but the Court
must be duly asked to grant some definite and distinct
relief, before
its decision upon the matter can properly be called an order. A trial
Court is sometimes called upon to decide questions
which come up
during the progress of a case, but in regard to which its decisions
would clearly not be orders. A dispute may arise,
for instance, as to
the right to begin: the Court decides it, and the hearing proceeds.
But that decision, though it may be of
considerable practical
importance, is not an order from which an appeal could under any
circumstance lie, apart from the final
decision on the merits.'
[62] In this matter the high court is yet to delve into
the merits of the case or pronounce on Absa’s entitlement to
judgment.
That remains for another day. To that end Absa has been
granted leave to set down the application for default judgment on
notice
to the defendant. All that has occurred for the present is
that, not being satisfied with the service effected by Absa, the high
court has directed that certain further steps be taken. It has not
been suggested that those additional steps are so onerous as
to bar
Absa from obtaining default judgment in due course. In that, Lewis JA
and I appear to be at one. For, implicit in my learned
colleague’s
dismissal of Absa’s appeal on the merits, seems to me to be an
acceptance that Absa can indeed comply with
paragraph 2 of the high
court’s order and in due course move it for judgment.
[63] The order does not amount to a refusal of default
judgment, nor does it directly bear upon or dispose of any of the
issues
in main action, it thus cannot be said that it is tantamount
to a dismissal of Absa’s action (contra
Durban City Council
v Petersen
1970 (1) SA 720
(N) at 723). It may be that the order
of the high court causes Absa some inconvenience but as Harms AJA,
with reference to
South Cape Corporation
supra, pointed out
(
Zweni
at 533B-C): ‘The fact that a decision may cause a
party an inconvenience or place him at a disadvantage in the
litigation
which nothing but an appeal can correct, is not taken into
account in determining its appealability’.
[64] Accepting that this order is appealable could
result in a situation where virtually every refusal to enter default
judgment,
including those for want of proper service, would be
appealable. That ‘would indeed open the door to the “fractional
disposal” of actions and the “piecemeal hearing of
appeals”’ (
Levco Investments (Pty) Ltd v Standard Bank
of SA Ltd
1983 (4) SA 921
(A) at 928H). In seeking and obtaining
leave to appeal to this court, no consideration was given by Absa or
the high court as to
whether the order was indeed appealable. Thus
the fact that the high court granted leave carries the matter no
further, since its
power to do so arises only in respect of ‘a
judgment or order’ within the meaning of that expression. In
truth the
matter was approached as if an appeal lies against the
reasons for judgment. It does not. Rather, an appeal lies against the
substantive
order made by a court. (
Western Johannesburg Rent
Board & another v Ursula Mansions (Pty) Ltd
1948 (3) SA 353
(A) at 355.)
[65] It follows in my view that as the order of the high
court is not 'a rule or order having the effect of a final judgment'
within
the meaning of that expression, this court lacks jurisdiction
to entertain the appeal. I am thus constrained to hold that the
appeal
must be struck off the roll with costs.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For the Appellant: C D A Loxton SC (with him J A
Babamia)
Instructed by:
Edward Nathan Sonnenbergs, Johannesburg
Matsepes Inc, Bloemfontein
First Amicus Curiae: C J Pammenter (with him I
Veerasamy)
Second Amicus Curiae: A de Vos SC (with her S Wilson)
Instructed by:
Socio-Economic Rights Institute of SA, Johannesburg
Webbers Attorneys; Bloemfontein
1
Sebola
v Standard Bank
2012 (5) SA 142
(CC).
2
See
in particular
Nedbank Ltd v Binneman
2012 (5) SA 569
(WCC) but contrast
Balkind
v Absa Bank
2013 (2) SA 486
(ECG). The
decision under appeal is reported:
Absa
Bank Ltd v Mkhize and two similar cases
2012
(5) SA 574
(KZD).
3
Nedbank
Ltd v National Credit Regulator
2011 (3) SA
581
(SCA) para 14.
4
Rossouw
v Firstrand Bank Ltd
2010 (6) SA 439
(SCA)
paras 30 to 32.
5
Para
31.
6
Para
32.
7
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A) 532I-533B.
8
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1 (A).
9
Jacobs
v Baumann NO
2009 (5) SA 432
(SCA) para 9.
10
NDPP
v King
2010 (2) SACR 146
(SCA) para 42.
11
Para
51.
12
Liberty
Life Association v Niselow
(
1996) 17
ILJ
673 (LAC).
13
SA
Eagle Versekeringsmaatskappy Bpk v Harford
[1992] ZASCA 42
;
1992 (2) SA 786
(A)
at 792A-C.
14
See
Van Streepen & Germs (Pty) Ltd v
Transvaal Provincial Administration
1987
(4) SA 569
(A) at 585D-J.
15
That
Act has now been repealed and replaced by the
Superior Courts Act 10
of 2013
, assented to on 12 August 2013. The provisions of the
Supreme Court Act nonetheless apply to appeals pending at the time
of enactment
of the
Superior Courts Act: s
52.
16
Khumalo
v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC) para 8.
17
See
also
NDPP v King
above
para 42.
18
Sebola
,
p
ara 4.
19
Para
73.
20
Paras
74-79.
21
Para
81.
22
Paras
86 and 87.
23
Nedbank
v Binneman
2012 (5) SA 569
(WCC).
24
Absa
Bank v Mkhize
2012 (5) SA 574
(KZD).
25
In
Absa Bank Ltd v Petersen
2013 (1) SA 481
(WCC) para 15 the court indicated
that the number of track and trace reports showing that the notice
had been returned to sender,
attached to applications for default
judgment, showed that ‘more often than not’ the consumer
did not collect the
s 129(1)
notice.
26
Maharaj
v Tongaat Development Corporation (Pty) Ltd
1976
(4) SA 994
(A) at 1001B.
27
Para
34.
28
Para
53.
29
Para
55.
30
Para
79 of
Sebola.
31
Para
77.
32
Balkind
v Absa Bank
2013 (2) SA 486
(ECG) para
48.
33
Para
57.
34
Para
84 of
Sebola
.
35
Para
5 of the high court order.