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[2018] ZANCHC 44
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Louw v BMW Financial Services (SA) (Pty) Ltd (729/2017) [2018] ZANCHC 44 (29 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO.: 729/2017
Date
heard: 11-05-2018
Date
delivered: 29-06-2018
In
the matter between:
Raymond
Louw
Applicant
And
BMW
Financial Services (SA) PTY LTD
Respondent
CORAM:
WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
This is an
application for the rescission of a default judgment granted in
favour of the respondent, BMW Financial Services SA (Pty)
Ltd, for
the confirmation of the cancellation of the agreement between the
parties and the repossession of a BMW motor vehicle.
2.
The parties
had entered into an instalment sale agreement, regulated by the
National Credit Act 34 of 2005 (the Act), on 25 February
2015, in
terms of which Mr Raymond Louw, the applicant purchased a BMW motor
vehicle. The purchase price of the vehicle was
R431 872,40,
to be paid in monthly instalments of about R7055, 00.
3.
The
applicant fell into arrears with his payments and on 2 December 2016
the respondent sent him a notice in terms of section 129(1)
of the
Act, setting out his rights and requesting him to pay the arrears
(which at the time amounted to R16 362, 66), within
10 days
failing which legal action would be taken to enforce the provisions
of the agreement. The section 129 (1) notice
was sent by
registered mail to the applicant’s chosen
domicilium
citandi et executandi.
4.
The section
129(1) notice elicited no response from the applicant, which resulted
in summons being issued and served on 25 April
2017.
5.
Upon
failing to enter an appearance to defend (the period expired on 11
May 2017), the respondent applied to the Registrar for default
judgment in terms of Rule 31(5) on 27 July 2017. After
attending to certain queries from the Registrar, default judgment
was
granted on 6 September 2017. I will revert to the queries in
due course.
6.
The
applicant, in his founding affidavit for the rescission of the
judgment states that he only received the section 129(1) notice
on 24
August 2017 when it was delivered to his home by courier.
Thereafter, and before he could respond within the stated
time, the
sheriff repossessed the motor vehicle on 16 September 2017.
7.
The applicant then obtained legal advice and after his attorney
obtained a copy of the court file they discovered the following:
7.1
That the summons was served by affixing it to the front door of his
house on 25 April 2017; and
7.2
That the summons had annexed to it a section 129(1) notice dated 2
December 2016 as well as a track and trace
report from the Post
Office.
8.
The
applicant alleges that he had not received the summons which the
sheriff, despite his ladyfriend being at home during the course
of
that particular day, chose to post on the outer door of his
premises. He also denies having received the section 129(1)
notice dated 2 December 2016 which was addressed to both Bloemfontein
and Kimberley. He asserts that had he received the
notice he
would have settled any outstanding payments immediately.
9.
At this
stage I pause to mention that the confusing address of the notice of
2 December 2016 – 27 Amy Street, Kirstenhof,
Kimberley,
Bloemfontein – was one of the queries raised by the Registrar
in the application for default judgment on 27 July
2017. The
other issue raised by the Registrar related to the fact that the
affidavit accompanying the application was not
commissioned.
10.
The
respondent at that stage addressed these problems raised by the
Registrar by submitting a properly signed and commissioned affidavit
and attaching the track and trace report which shows that although
the notice made a detour through Bloemfontein on 14 December
2016, it
reached the Kimberley Post Office on 15 December 2016, on which date
the first notification was dispatched to the applicants
residence in
Kimberley, his chosen
d
omicilium
citandi et executandi
.
11.
The
respondent explains in its answering affidavit that the section
129(1) notice which was sent by courier to the applicant on
24 August
2017 was done as a mere precautionary measure in the event the
Registrar did not accept the explanation regarding the
notice of 2
December 2016. The respondent does not rely on the notice
received on 24 August 2017 for the default judgment,
but on the
notice of 2 December 2016 of which the first notification was sent
from the Kimberley Post Office on 15 December 2016.
12.
The
applicant failed to file a replying affidavit. Mr Pillay who
appeared for the applicant persisted in argument however
that the
respondent was not entitled to default judgment since the applicant
only received the section 129 (1) notice on 24 August
2017, a mere 9
days before default judgment was granted on 6 September 2017 and
before the applicant had a proper opportunity to
exercise his options
in terms of the notice. Mr Pillay also contends on behalf of
the applicant that it was incumbent upon
the sheriff, when serving
the summons, to have made all attempts reasonably possible to effect
service personally before affixing
the summons to the door of the
residence, which should be a measure of last resort. The
alleged failure by the sheriff in
his duty to effect service,
properly, it is argued therefore amounted to non service, which is
another reason why the judgment
should be rescinded.
13.
I deal
firstly with the issue of service of the summons. There can be
no doubt that personal service would always be the ideal
manner in
which to effect service. It is however not always a requirement
and is specifically not so in cases where the person
has chosen a
domicilium
citandi et executandi.
Rule
4(1) (a) (iv) provides for service of any process to be effected by
the sheriff “
if
the person so to be served has chosen a domicilium citandi, by
delivering
or leaving a copy thereof at the domicilium so chosen
.”
14.
It has in
fact been held that service on a chosen domicilium
citandi
et executandi
will be good even though it is known that the defendant is not living
there. See
Prudential
Building Society v Botha
1953 (3) SA 887
(W). In such cases, service on vacant land will
also be good, provided strict compliance with the Rules is observed.
See
Naidoo
v FirstRand Finance Co Ltd
2012
(6) SA 122
(WCC) at 127 A-B.
15.
As to the
argument that the sheriff had failed in his duty by neglecting to
first establish whether there was anyone present at
the applicant’s
residence, the following is illuminating. The applicant averred
that his ladyfriend who is a nurse,
was off-duty and at home during
the day of 25 April 2017 when the summons was served. As
confirmation hereof he attached
the duty roster (nursing services)
for the Galleshewe Day Hospital where the ladyfriend, Ms Shokhoe is
employed. The duty
roster has marked on 25 April 2017, next to
the name of Ms Shokhoe, the letter “D” as opposed to the
letter “
N”
which appears next to the names of other nursing staff. The
immediate impression created is that Ms Shokhoe was on day duty
and
that she would therefore not have been at home when the summons was
served. Although Ms Shokhoe has deposed to a confirmatory
affidavit in which she confirms that she was off-duty that particular
day and that the sheriff had not served the summons on her
nor
affixed it to the door, she does not explain the apparent
contradiction of her (and the applicant’s) version as shown
on
the duty roster.
16.
As far as
proof of delivery of a section 129(1) notice is concerned the
Constitutional Court has once and for all set out the obligations
which credit providers have to discharge to bring the notice to the
attention of a consumer. In
Kubyana
v Standard Bank of SA Ltd
2014(4)
BCLR 400 at paragraph 53 it is stated as follows:
“
[53]
Once a credit provider has produced the track and trace report
indicating that the section 129 notice was
sent to the correct branch
of the Post Office and has shown that a notification was sent to the
consumer by the Post Office, that
credit provider will generally have
shown that it has discharged its obligations under the Act to effect
delivery. The credit provider
is at that stage entitled to aver that
it has done what is necessary to ensure that the notice reached the
consumer. It then
falls to the consumer to explain why it is
not reasonable to expect the notice to have reached her attention if
she wishes to escape
the consequences of that notice. And it makes
sense for the consumer to bear this burden of rebutting the inference
of delivery,
for the information regarding the reasonableness of her
conduct generally lies solely within her knowledge. In the absence of
such
an explanation the credit provider’s averment will stand.
Put differently, even if there is evidence indicating that
the
section 129 notice did not reach the consumer’s attention, that
will not amount to an indication disproving delivery
if the reason
for non-receipt is the consumer’s unreasonable behaviour.”
17.
In casu
the
respondent has shown that the section 129(1) notice had reached the
correct post office on 15 December 2016 and that a notification
that
a registered item was available for collection was sent to the
correct address. The applicant has failed to give any
explanation why, in the circumstance, the notice would not have come
to his attention. He has therefore failed to discharge
the
burden of rebutting the inference of delivery.
18.
An
applicant in an application for rescission of a judgment taken by
default against him is generally required to give a reasonable
explanation for his default, show that his application is made
bona
fide
and
show that he has a
bona
fide
defence on the merits which
prima
facie
carries
some prospect of success.
19.
The
applicant has unfortunately failed to meet any of the requirements.
On his own admission he had failed to pay three monthly
instalments
by the time default judgment was obtained. His failure to make
these payments stands unexplained and there can
therefore be no
bona
fide
defence on the merits. The applicant’s
bona
fides
in
bringing this application is also seriously doubted. In his
affidavit he states that he would have immediately settled
his
outstanding payments had the respondent notified him properly.
However in the sixteen days since he, on his version,
first received
the section 129(1) notice, until the motor vehicle was repossessed,
no effort was made to settle the outstanding
payments or to negotiate
a payment arrangement. To date of the hearing of this
application the arrear payments had still
not been settled. In
addition and as already dealt with herein above, the applicant failed
to give a reasonable explanation
for his default. The
application for the rescission of the default judgment can therefore
not succeed.
20.
Finally,
the applicant included a prayer for condonation of the late filing of
the rescission application in the Notice of Motion.
In terms of
Rule 31 (2) (b) an application for rescission of a default judgment
should be made within 20 days of the defendant
becoming aware of the
judgment. The application was launched 29 days after the motor
vehicle was repossessed and 26 days
after the applicant’s
attorney received a copy of the court file. While the delay is
not extreme, the applicant has
not given a single reason in his
affidavit for the cause of the delay. As a result of his
failure to give any explanation
and in the light of my finding on the
application for rescission, the application for condonation also
stands to be dismissed.
The
following orders are made:
a)
The
application for condonation is dismissed.
b)
The
application for the rescission of the default judgment is dismissed
with costs.
________________________
CC
WILLIAMS
JUDGE
For
Applicant:
Mr J Pillay
Justin Pillay &
Associates
For
Respondent: Adv Sieberhagen
MacRobert Inc Attorneys
c/o Roux, Welgemoed &
Du Plooy Attorneys