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2024
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[2024] ZAECMKHC 16
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Van Wyk v Regional Magistrate Mbululu and Another (CA115/2022) [2024] ZAECMKHC 16 (30 January 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case
No: CA115/2022
In
the matter between:
NOEL
VAN WYK
Appellant
And
REGIONAL
MAGISTRATE MBULULU
First
Respondent
FIRSTRAND
BANK LTD
Second
Respondent
JUDGMENT
Beshe
J
[1]
Second respondent instituted action against
the appellant out of the Regional Court, East London for
inter alia
the cancellation of an instalment agreement entered into between the
appellant and the second respondent. Also sought
was the return of
the motor vehicle in respect of which the instalment agreement was
concluded. Judgment was granted in favour
of the second respondent.
This, after the Magistrate dismissed appellant’s special plea
that the summons had been issued
prematurely in view of the fact, so
appellant contended, that the second respondent had not issued him
with a notice as provided
for in section 129(1) of the National
Credit Act.
[1]
[2]
Save for the special plea raised, the
pleadings reveal that the appellant made the following admissions:
He
has breached the provisions of the agreement by failing to make
regular payments in terms of the agreement and has fallen into
arrears. That the second respondent is entitled to cancel the
agreement and take possession of the motor vehicle.
[3]
It is common cause that the second
respondent initially instituted the action against the appellant
in
the Makhanda High Court. Before the institution of the action in the
High Court, there is evidence that second defendant sent
the section
129 notice by registered mail to appellant’s domicilium address
and same was delivered at the relevant post office
and a notification
was sent to the appellant’s address. In the court
a
quo
appellant submitted that “the plaintiff did not issue a Section
129 notice prior to issuing summons. Now the summons I am
making
reference to is the one which is before the court with case number
5855/2019”.
[2]
[4]
The second point raised by the appellant in
the court
a quo
relates to the provisions of Section 130 of
the National Credit Act. Namely that he was in the process of debt
review at the time
the action was instituted against him.
[5]
Appellant persisted with these points as
grounds of appeal. However, in argument before us the appellant
correctly conceded that second respondent was not required to issue
another Section 129 notice for purposes of the summons issued
out of
the Magistrates Court. It is indeed so. The Section 129 notice that
was issued by the second respondent before action was
instituted in
the High Court related to the same agreement, to the same debt, the
same cause of action.
[6]
Appellant also conceded, rightly so once
again, that at the time of the issuing of the summons in the
Magistrate Court, he was not under a debt review process. He
confirmed that according to Annexure L which was annexed to his
special
plea, his application for debt review was rejected in terms
of Section 86(7)(a) of the National Credit Act in July 2019. The
summons
in turn was issued against him in August 2019.
[3]
[7]
In light of appellant’s grounds of
appeal having been conceded, correctly so by him, the appeal
falls to
be dismissed.
[8]
Accordingly, the appeal is dismissed with
costs.
N G BESHE
JUDGE OF THE HIGH
COURT
POTGIETER J
I agree.
D O POTGIETER
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Appellant
Mr N.
Van Wyk
Instructed
by
Appellant
in Person
6
Zenith Street
Buffalo
Flats
EAST
LONDON
Ref:
Mr. Van Wyk
Tel.:
071 600 9607
For
the 2
nd
Respondent
Adv:
J Barker
Instructed
by
JOUBERT
GALPIN SEARLE
C/o
CARINUS JAGGA INCORPORATED
67
African Street
MAKHANDA
Ref:
Ms J Jagga
Tel.:
046 – 940 0086
Date
Heard
:
26
January 2024
Date
Reserved
:
26
January 2024
Date
Delivered
:
30
January 2024
[1]
Act
34 of 2005.
[2]
Page
54 of the paginated papers. 5855/2019 is the Magistrates Court Case
Number.
[3]
Section
86(7) provides that: “(7) If, as a result of an assessment
conducted in terms of subsection (6), a debt counsellor
reasonably
concludes that –
(a)
the consumer is not over-indebted, the
debt counsellor must reject the application, even if the debt
counsellor has concluded
that a particular credit agreement was
reckless at the time it was entered into.”