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[2022] ZANCHC 74
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Bridge Taxi Finance No.5 (Pty) Ltd v Mongala (973/2022) [2022] ZANCHC 74 (4 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
973/2022
Heard:
20/10/2022
Delivered:
04/11/2022
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
Applicant
and
KEITUMETSE
SYLVIA MONGALA
Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
Mamosebo
J
[1]
This is an application for leave to appeal to the Full Court of this
Division against
my order refusing to grant default judgment in the
unopposed motion court on 22 July 2022. The request for my
reasons for
refusal dated 5 August 2022 were furnished on 6 September
2022 after the file was only returned to me on 31 August 2022.
[2]
In its Notice of Application for Leave to Appeal filed with the
Registrar on 16 September
2022, the applicant raised what seems to be
about 6 grounds of appeal (A – F) which, in relevant part, and
as argued by counsel,
Mr Botha, for the applicant, can be categorised
in two grounds:
2.1
That the Court erred in finding that the service of the s 129 notice
was not appropriate as contemplated in
the amended National Credit
Act, (NCA) s129(5)(b) thereof
;
2.2
That the Court erred in not issuing a directive(s) as contemplated in
s 130(4)(b).
[3]
The test for an application for leave to appeal is trite. In the
unreported judgment
of
Ramakatsa
and Others v African National Congress and Another
[1]
the
Supreme Court of Appeal remarked:
“
[10]
Turning the focus to the relevant provisions of the Superior Courts
Act (the SC Act), leave to appeal may only be granted
where the
judges concerned are of the opinion that the appeal would have a
reasonable prospect of success or there are compelling
reasons which
exist why the appeal should be heard such as the interests of
justice. This Court in Caratco, concerning the
provisions of
s 17(1)(a)(ii) of the SC Act pointed out that if the court is
unpersuaded
that
there are prospects of success, it must still enquire into whether
there is a
compelling reason to entertain the appeal. Compelling reason
would of course include an important question of
law or a discreet
issue of public importance that will have an effect on future
disputes. However, this Court correctly added
that ‘but
here too the merits remain vitally important and are often
decisive’. I am mindful of the decisions
at high court
level debating whether the use of the word ‘would’ as
opposed to ‘could’ possibly means that
the threshold for
granting the appeal has been raised. If a reasonable prospect of
success is established, leave to appeal should
be granted. Similarly,
if there are some other compelling reasons why the appeal should be
heard, leave to appeal should be granted.
The test of
reasonable prospects of success postulates a dispassionate decision
based on the facts and the law that a court
of appeal could
reasonably arrive at a conclusion different to that of the trial
court. In other words, the appellants in
this matter need to
convince this Court on proper grounds that they have prospects of
success on appeal. Those prospects
of success must not be
remote, but there must exist a reasonable chance of succeeding. A
sound rational basis for the conclusion
that there are prospects of
success must be shown to exist.”
[4]
The National Credit Amendment Act amended s 129 of the NCA by adding
three subsections
to it which provide:
“
(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 office 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).”
[5]
It is common cause that the respondent agreed to accept any legal
notice in terms
of the credit agreement at her
domicilium
at
Enkelkwartiere Kamer No 5, Steyerkraal
. There was no
personal service nor was the notice served on the respondent, Ms
Mongala, or any adult person residing at her
domicilium
but
the sheriff affixed the statutory notice to the main door in that the
sheriff was informed by the security guard that ‘
everybody
went away for the long weekend’.
This, however, did
not absolve the applicant from having the notice re-served in
accordance with the Act.
[6]
Inexplicably counsel still argued that the service was proper despite
the three new
subsections, in line with the
Sebola
judgment
[2]
, making it clear
that while actual knowledge of the notice by the consumer is not
required, compliance with the two methods of
delivery of the notice,
namely, by registered mail or in person is required. The
subsections further provide for proof of
service. In
casu
,
proof of proper service in terms of s 129(7)(b) would have been when
the recipient signed or placed an identifying mark on the
notice.
One attempt of effecting service does not justify
non-compliance with the required service. Mr Botha, the
applicant’s counsel, elaborately but irrelevantly dealt with
service by registered mail. The respondent made her choice to
be
served at her
domicilium
.
[7]
After default judgment was refused, the applicant sought reasons for
refusal which
were provided on 06 September 2022. The reasons
explained the non-compliance adequately and I deem it unnecessary to
repeat
them in this application. The reasons furnished have
effectively dealt with the aspect of the required directive in terms
of s 130 because they highlight the purpose of s 129
against the backdrop of the sheriff’s return.
[8]
Mr Botha relied on three Constitutional Court cases:
Sebola
,
Kubyana
[3]
and
Baliso
[4]
in his contention that affixing a notice to the door was appropriate.
Counsel further asked a rhetorical question why the legislator
would
allow a summons to be served by affixing and not the s 129 notice.
Courts do not legislate, they interpret. Unlike
in the case
before me, Mr and Mrs Sebola chose their mortgaged property as the
address where notices and processes ‘in any
legal proceedings’
should be served. However, they also provided a post office box
where the documents may be deposited
or delivered. Cameron J, writing
for the majority, said the following in
Sebola
[5]
:
“
[45]
Section 129(1)(a) requires a credit provider, before commencing any
legal proceedings to enforce a credit agreement,
to draw the default
to the notice of the consumer in writing. It has been described
as a 'gateway' provision, or a 'new pre-litigation
layer to the
enforcement process'. Although s 129(1)(a) says the credit
provider 'may' draw the consumer's default to his
or her notice, s
129(1)(b)(i) precludes the commencement of legal proceedings unless
notice is first given. So, in effect, the
notice is compulsory.”
[9]
In
Kubyana,
the mode of service was by registered mail.
Although the Court process was mailed to the correct post office Mr
Kubyana failed to
collect his mail. Court held that the
bank in Kubyana had complied with the statutory requirements and was
entitled
to obtain judgment.
[10]
The issue in
Baliso
pertained to the appealability of an
exception
.
The bank alleged that it caused a s 127(2) notice
to be sent to the applicant. The Constitutional Court found
that the question
whether the consumer received the s 127(2) notice
or not or whether it probably came to the attention of a reasonable
consumer
must be determined by way of evidence at a trial. It
found the exception procedure inappropriate in the circumstances.
Leave
to appeal was refused. The three Concourt cases do not
support the applicant’s contention regarding service.
[11]
The applicant contends that this Court made an error in not granting
directions to counsel as
contemplated in s 130(4) which essentially
states that if the credit provider has not complied with s 129(1)
it must in terms
of s 30(4)(b) adjourn the matter and set out the
steps the credit provider must take before the matter may be resumed.
These
alleged shortcomings were dealt with in court hence the
refusal to grant the order.
[12]
In the circumstances the question that remains to be answered is
whether the order granted is
appealable or not.
[13]
In
Baliso
[6]
,
although the Constitutional Court was dealing with appealability of
an exception, the principle is relevant:
“
[5]
The first hurdle facing the applicant is procedural in nature. The
disposal of exceptions on appeal
presents particular problems in
relation to the attributes of an appealable judicial decision. In
Zweni, the Supreme Court
of Appeal canvassed different rationales
distinguishing between non-appealable rulings and appealable orders.
Harms AJA,
writing for the court, noted that,
in
determining in which category a judicial determination falls, one
must look 'not merely [at] the form of the [judicial pronouncement]
but also, and predominantly, [at] its effect'
.
He then enumerated three attributes that an appealable judgment has:
'(F)irst,
the decision must be final in effect and not susceptible of
alteration by the Court of first instance; 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
.'”
(Own emphasis)
[14]
At the risk of repetition, the sheriff did not serve the s 129 notice
as contemplated in the
amended s 129. It is clear that affixing
it to the door is excluded by the amended provisions of the NCA. The
order
refusing default judgment under these circumstances is not
appealable because it has no final effect. The applicant needs
to comply with the procedural aspect of re-serving the s 129 notice
properly, if so advised, before bringing an application for
default
judgment again.
[15]
I have carefully and dispassionately considered the application for
leave to appeal in an effort
to determine whether there are
reasonable prospects that another court would come to a different
finding than this court reached
and have not found any. I am
also of the view that there is no compelling reason to entertain the
appeal. In the result,
the application for leave to appeal
stands to fail.
[16]
The following order is made:
The
application for leave to appeal is dismissed with costs.
M.C.
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant: Adv.
JG Botha
Instructed
by:
Roux,
Welgemoed & Du Plooy Attorneys
For
the Respondent:
No
appearance
[1]
(724/2019)
[2021] ZASCA 31
(31 March 2021) at para 10
[2]
Sebola
and Another v Standard Bank of South Africa Ltd and Another 2012 (5)
SA 142 (CC)
[3]
Kubyana
v Standard Bank of South Africa Ltd
2014 (3) SA 56
(CC)
[4]
Baliso
v Firstrand Bank Ltd t/a Wesbank 2017 (1) SA 292 (CC)
[5]
Ibid
at para 45
[6]
Ibid
at para 5