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[2019] ZAFSHC 36
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Van Zyl N.O and Others v Standard Bank of South Africa Ltd (A304/2017) [2019] ZAFSHC 36 (28 March 2019)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION,
BLOEMFONTEIN
Reportable:
YES/ NO
Of
Interest to other Judges: YES/ NO
Circulate
to Magistrates:
YES/ NO
Case
no: A304/2017
In
the matter between:
WILHELMUS
HENDRIKUS VAN ZYL N.O.
1
st
Appellant
AMABILE
VAN ZYL
2
nd
Appellant
WILHELMUS
HENDRIKUS VAN ZYL
3
rd
Appellant
AMABILE
VAN ZYL N.O.
4
th
Appellant
and
STANDARD
BANK OF SOUTH AFRICA LTD
Respondent
CORAM:
REINDERS,
J
et
LOUBSER, J
et
MOROBANE, AJ
HEARD
ON
:
25 MARCH 2019
JUDGMENT
BY:
MOROBANE, AJ
DELIVERED
ON:
28
MARCH 2019
[1]
This is an appeal against the judgment of the late Judge Moloi in
case numbers 913/2017,
1212/2017 and 1213/2017 as consolidated. On 22
September 2017 leave to appeal was granted by Pike, AJ. The record
was filed late
and the appellants applied for condonation and
reinstatement of the appeal. Such orders were granted and the
merits of the
appeal were argued. In the aforesaid matters, the
appellants were the respondents and the respondent the applicant. For
convenience
sake the parties will be referred to as appellants and
respondent throughout.
[2]
The appellants listed 11 grounds upon which they rely in their notice
of appeal filed on
20 October 2017 as follows:
2.1 The
learned judge erred in case 913/2017 by finding that the appellants
cannot rely on the Rule 30 Notice
to stay the proceedings due to them
taking a further step by filing an Answering Affidavit.
2.2
The learned
judge should have considered the appellants’ contention that
the answering affidavit was provisionally filed and
as an
alternative, without waiving their rights in terms of rule 30, that
the appellants were still entitled to pray for condonation
for the
late filing thereof at the hearing of that application.
2.3 The
judge should have found that the proceedings in the case number
913/2017 be suspended pending the finalisation
of the appellants’
rule 30 application.
2.4 The
learned judge failed to consider the appellants’ point in
limine in case number 913/2017, that the
application does not comply
with the prescribed form of the rules of Court, thereby effectively
dismissing the appellant’s
rule 30 application.
2.5 The
learned judge erred in respect of all three case numbers in finding
that there was due compliance with
section 129 of the National Credit
Act.
2.6 The
learned judge should have found that the appellants did respond to
the said section 129 notices and thereby
chose to refer the dispute
to an alternative dispute resolution agent.
2.7 The
learned judge erred in finding that the plaintiff was entitled to
proceed with legal action after expiry
of the 10 days from the date
of delivery of the notice despite the fact that the plaintiff
belatedly received confirmation of the
appellants’ response,
and that the option to refer the matters to an alternative dispute
resolution agent precluded the plaintiff
to proceed with legal action
at that time.
2.8 The
learned judge should have found that the legal proceedings were
premature and the Court should have suspended
the legal proceedings.
2.9 The
learned judge erred in finding that the appellants did not deal with
their defence on the merits and that
they were duty bound to fully
disclose the detail of the dispute under circumstances where
appellants have already referred the
dispute to an alternative
dispute resolution agent for adjudication.
2.10 The learned
judge should have found that the dispute as to the calculation of
interest and the resultant dispute as to
the outstanding balances
should have been resolved before the alternative dispute resolution
agent as envisaged by section 129
of the NCA.
2.11 Any other
grounds not foreseen at this stage that may be argued on the date of
appeal.
[3]
The abovementioned grounds of appeal are summarised into three as
follows:
3.1
In case number 913/2017 the learned judge erred in finding that the
appellants cannot rely on their Uniform Rule 30 notice
for suspension
of the proceedings pending the finalisation of their rule 30
application.
[1]
In addressing
the Rule 30 defence, Moloi J found that the notice fell away since it
was filed out of time. It is clear from the
record that no
application for condonation for the late filing of the Rule 30 notice
was done. The latter point puts an end to
the argument on the rule 30
notice and thus need not be dealt with further. Even if the Rule 30
notice were to be considered in
the absence of a condonation
application, the appellants took a further step by filing an
answering affidavit. Uniform Rule 30(2)(a)
provides that where an
irregular step has been taken, the other party may apply to court to
set it aside only if the applicant
has not taken a further step in
the cause with the knowledge of the irregularity. Under the
circumstance the Rule 30 notice would
have fallen away in any event.
In my view, the court
a
quo
did
not err in any way in its finding.
3.2 In all three
matters the learned judge erred in finding that the appellants did
not deal with the defence to the merits.
[2]
The appellants feel aggrieved by the learned judge’s finding
that they failed to deal with the merits. In
Standard
Bank of South Africa Ltd v RTS Techniques & Planning (Pty) Ltd
[3]
the court held that, apart from the prescribed procedure in Uniform
Rule 6(5)(d), it was the established practice that a respondent
should file affidavits on the merits, irrespective of whether a
preliminary point is to be argued. I have perused the respective
affidavits and could not find any defence on the merits in all three
matters. I agree with the learned judge’s holding that
the
appellants had no defence against the respondent’s claims and
“clutches at every straw and hay in an attempt to
avoid
liability”.
3.3 In all three
matters the learned judge erred in finding that there was due
compliance with
section 129
of the
National Credit Act 34 of 2005
.
[4]
The appellants alleged that all three matters were referred to an
alternative dispute resolution agent and, as such, the respondent
was
precluded from proceeding with the legal action at that time.
[4]
The learned judge addressed the requirements and purpose of the
notice in terms of
section 129
, among others proof of delivery
thereof. In all three matters delivery was proven by the track and
trace report of the post office
as being 25 January 2017. The first
notification to the appellants was sent on 25 January 2017. The
appellants were afforded 10
working days to take steps to resolve any
dispute or bring payments up to date. By the time the respondent
filed a notice of motion
to enforce its claims on 22 February 2017,
the 10 days had long lapsed. On a mathematical calculation, the 10
working days from
25 January 2017 would have been up to 8 February
2017.
[5]
The learned judge correctly applied
Kubyana
v Standard Bank of SA Ltd
[5]
that in order to bring a
section 129
notice to the attention of
consumers, proof of delivery is satisfied by written
confirmation by the postal services of the
delivery to the correct
branch of the Post Office. Among other obligations, the credit
provider must prove that the post office
issued a notification to the
consumer that a registered item was available for his collection and
such notification reached him.
[6]
The learned judge dealt with the appellants’ argument that they
referred the matters
to the National Credit Regulator (“NCR”)
to appoint or nominate an alternative dispute resolution agent and
thus the
proceedings were premature. He referred to an email by the
appellants’ attorneys dated 10 February 2017 addressed to a Mr
Ryan Lepart of the NCR stating “we … shall be pleased if
you could urgently provide us with a list of alternative
dispute
regulators”. The learned judge remarked that on the day of the
hearing on 4 May 2017 there was no indication from
the appellants
that the matters were ever referred to an alternative dispute
resolution agent or other instances mentioned in the
section 129
notice. I agree with the learned judge’s finding that the
letter to the National Credit Regulator is by no means a “
referral
”
as per
section 129
read with
section 130
of the NCA.
[7]
The court
a
quo
held that the referral had already lapsed when the proceedings were
instituted. As a result, the respondent was entitled to institute
the
proceedings, there being no defence raised, and was entitled to
judgment as well. I agree with the holding of the learned judge
and
cannot find that he erred in any way in this regard.
[8]
It follows therefore that the appeal cannot succeed.
[9]
I would make the following order:
1.
The appeal
is dismissed with costs.
V.M.
MOROBANE, AJ
I concur, and it is so
ordered.
C. REINDERS, J
I concur.
P. LOUBSER, J
On behalf of the
appellants:
Adv JG Janse van Rensburg
Instructed
by:
JG Kriek & Cloete
BLOEMFONTEIN
On behalf of the
respondent: Adv CLH
Harms
Instructed
by:
Strauss
Daly Attorneys
BLOEMFONTEIN
[1]
Notice of Appeal, paras
1, 2, 3 and 4
[2]
Notice of Appeal para 9
[3]
Standard Bank of SA
Ltd v RTS Techniques & Planning (Pty) Ltd
1992 (1) SA 432
(T) at 442A
[4]
Notice of Appeal paras
5, 6, 7, 8 and 10
[5]
Kubyana v Standard
Bank of SA Ltd
2014 (3) SA
56
(CC) at para 54