About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2022
>>
[2022] ZANCHC 81
|
|
Bridge Taxi Finance No 5 (Pty) Ltd v Mongala (973/2022) [2022] ZANCHC 81 (6 September 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 973/2022
Heard:
22/07/2022
Available:
06/09/2022
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
BRIDGE
TAXI FINANCE NO 5 (PTY) LTD
Plaintiff
and
KEITUMETSE
SYLVIA MONGALA
Defendant
JUDGMENT:
REASONS
Mamosebo
J
[1]
This matter concerns an application for default judgment in terms of
Rule 31(5) of
the Uniform Rules of Court that I refused to grant when
the matter served before me in the unopposed motion court on 22 July
2022.
The plaintiff now requests for reasons in terms of Rule
49 of the Uniform Rules of Court. The file was only returned to me
on
31 August 2022.
[2]
A consumer, Ms Keitumetse Sylvia Mongala, entered into a credit
agreement with the
plaintiff, Bridge Taxi Finance No 05 (Pty) Ltd on
18 December 2019 in terms of which a 2019 Auto Brilliance JINBEI H1
minibus vehicle
with engine number [....] and chassis number [....]
was sold and delivered to her. She is in default of the credit
agreement
in that she has failed to pay the rentals and fell in
arrears with her payments in the sum of R253,499.26.
[3]
The plaintiff maintains that it has complied with the requirements of
s 129 and 130
of the National Credit Act in that the letter, marked
annexure “D” was served on the defendant by the sheriff
on 29
April 2022 at the chosen
domicilium
address of the
defendant.
[4]
The sheriff’s return marked annexure “E” records
the following:
“
SERVICE
BY AFFIXING AT CHOSEN DOMICILIUM
CITANDI ET EXECUTANDI
By
service of a copy of the SECTION 129 LETTER on DEFENDANT by affixing
a copy to the principal door at the above-mentioned address,
being
the chosen domicilium citandi et executandi of the DEFENDANT.
No
other service was possible after performing a diligent search.
According
to the security, due to the long weekend, everybody went away.”
[5]
On 17 May 2022 the plaintiff issued summons out of this Court
claiming,
inter alia
, cancellation of the agreement, return of
the minibus and other ancillary relief.
[6]
The aim of section 129(1)(a) "
is
to facilitate consensual resolution of credit agreement disputes
."
Section 129(1) places a duty on the credit provider to inform
the consumer of the possible assistance that is available
before
legal action will be instituted.
[1]
[7]
The National Credit Amendment Act, 19 of 2014, (NCAA) came into
effect on 13 March
2015 and amended section 129 of the National
Credit Act, 34 of 2005 (NCA)
inter alia
by adding three
subsections to the following effect:
“
(5)
The notice contemplated in subsection (1)(a) must be delivered to the
consumer–
(a)
by registered mail; or
(b)
to an adult person at the location designated by the consumer.
(6)
The consumer must in writing indicate the preferred manner of
delivery contemplated in subsection (5).
(7)
Proof of delivery contemplated in subsection (5) is satisfied by–
(a)
written
confirmation by the postal service or its authorised agent, of
delivery to the relevant post office or postal agency; or
(b)
the
signature or identifying mark of the recipient contemplated in
subsection (5)(b).”
[8]
The amended sections of the Act support what the Constitutional Court
has already
pronounced in
Sebola v Standard Bank of South Africa
Ltd
2012 (5) SA 142
(CC) paras 40 and 46
where the following
instructive remarks by the ConCourt in the majority judgment are
worth repeating:
“
[40]
The statute sets out the means by which these purposes must be
achieved, and it must be interpreted so as to give effect
to them. .
The main objective is to protect consumers. But in doing so, the Act
aims to secure a credit market that is ‘competitive,
sustainable, responsible [and] efficient’. And the means
by which it seeks to do this embrace ‘balancing the
respective
rights and responsibilities of credit providers and consumers’.
These provisions signal strongly that the
legislation must be
interpreted without disregarding or minimising the interests of
credit providers. So I agree with the
Supreme Court of Appeal
that –
‘
(t)he
interpretation of the NCA calls for a careful balancing of the
competing interests sought to be protected, and not for a
consideration of only the interests of either the consumer or the
credit provider’.
I
also agree that whilst the main object of the Act is to protect
consumers, the interests of creditors must also be safeguarded
and
should not be overlooked.
[46]
One of the means by which the legislation expressly provides for its
purposes to be pursued is through ‘consensual
resolution of
disputes arising from credit agreements’. Section 129(1) is
pivotal to this. It precludes legal enforcement
of a debt
before the credit provider has suggested to the consumer that he or
she explore non-litigious ways to purge the default.
Specifically,
the notice must ‘propose’ that the defaulting consumer
refer the credit agreement to a debt counsellor,
alternative dispute
resolution agent, consumer court or ombud, with the intent that the
parties resolve their dispute, or agree
on a plan to remedy the
default.”
[9]
The issue is not with the contents of the s 129 notice in this case
but rather with
the service thereof. Notwithstanding that in
the credit agreement, the defendant has agreed to accept all legal
notices at
her
domicilium citandi
et
executandi, which was
served by
affixing to the main door it is, in my view, not the
service contemplated in the NCAA. It is for the aforementioned
reasons,
more particularly, the
failure to serve the s 129 notice as required that the default
judgment was refused.
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the plaintiff:
MV
Galane
On
instructions of:
ODBB
Inc (local correspondent Roux,
Welgemoed
& Du Plooy)
[1]
See Govender S and Kelly-Louw M “Delivery of the Compulsory
Section 129(1) Notice as required by the
National Credit Act of
2005
” PER/PELJ 2018 (21) – DOI
http://dx.doi.org/10.17159/1727
- 3781/2018/v21:Oa3466 published 27 November 2018