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[2016] ZAGPPHC 1215
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Standard Bank of South Africa Ltd v Mokwana (73350/2015) [2016] ZAGPPHC 1215 (3 October 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTH
GAUTENG DIVISION, PRETORIA
CASE
NO: 73350/2015
DATE:
2/10/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LTD
Applicant
And
PIET
NKHEBI MOKWANA
Respondent
(IDENTITY
NUMBER: [...])
JUDGMENT
MSIMEKI
J,
INTRODUCTION
1.
The applicant, in September 2015, instituted an action
against the respondent seeking payment of an amount of R251 359 57;
interest
thereon at the rate of 12.75% per annum from 25 July 2015 to
date of payment and costs of suit. The respondent delivered his
notice
of intention to defend the action whereupon the applicant
filed its application for summary judgment which is opposed by the
respondent.
BRIEF
BACKGROUND FACTS
2.
On 5 April 2013 the applicant and the respondent entered
into a written loan agreement ("the agreement"). The
minimum
monthly repayment amount was R5 035 00 for a period of 60
months. The respondent fell in arrears with the repayment of the
monthly
instalments. The applicant became entitled to claim payment
of the full outstanding amount in terms of clause 11.4 of the
agreement
which provides:
"11.4 In the
event of default, we may, at our election and without affecting any
other rights that we may have in terms of
this Agreement or
otherwise, recover from you payment of all amounts owing under this
Agreement by adhering to the default procedure
described above."
3.
The respondent filed an affidavit opposing the
application for summary judgment. In sum, the respondent's defences
are that:
1.
the
deponent to the affidavit supporting the application for summary
judgment "failed to attach confirmation of authorisation
and or
confirmation that he indeed is employed by the Applicant" and
the application for that reason alone, should be dismissed.
The
respondent further denied that the deponent has knowledge of the
matter and that the relevant documents are under his control.
2.
the
applicant is not entitled to proceed with legal action "as it
has failed to comply with
Section 129 read
with Section 130 of the Credit Act
in that
the compulsory
Section 129
was
not served on the
domicilium
address
as specified in the agreement".
3.
he
"should have written consent" from his spouse and that the
applicant "should have cited" his wife as the
second
respondent. For this reason alone, the application ought to be
dismissed.
4.
In respect of the respondent's defences, it was
submitted on behalf of the applicant as follows:
1.
CONFIRMATION
OF AUTHORISATION/EMPLOYMENT AND PERSONAL KNOWLEDGE
1.1.
It
was not necessary to annex confirmation of authorisation or
confirmation that the deponent to the founding affidavit is employed
by the applicant. What must be authorised is the institution of the
proceedings and the prosecution thereof as the deponent to
an
affidavit in motion proceedings need not be authorised by the party
concerned to depose to the affidavit. This, indeed, is law
(See in
this regard,
Firstrand Bank Ltd v Fillis
2010
(6) SA 565
(ECP) at [13]
and
Games
and Another
v Telecom Namibia Ltd
2004 (3)
SA 615
(SCA) ([2004]
2 ALL SA 609]).
It was specifically
submitted that the deponent, with regard to his employment, makes the
allegation under oath and that there was
no need for the deponent to
annex any confirmation regarding such employment. In any event, it
was submitted, the respondent does
not deny the deponent's employment
with the applicant. I agree.
1.2.
Regarding
the respondent's denial that the deponent has knowledge of the matter
and that the documents are under his control, it
was submitted that
the respondent denies without raising any acceptable and plausible
reasons as to why he comes with such a denial.
This, according to the
submission.amounts to a bare denial. I agree. In any event, as
correctly submitted, the respondent produces
no allegations to
controvert the deponent's declaration under oath, that that, indeed,
is the position.
In
Rees and Another v
Investec Bank Ltd
2014 (4) SA 220
(SCA) at 226E,
the court said
that:
"..
.first-hand
knowledge of every fact cannot and should not be required of the
official who deposes to the affidavit on behalf of
such financial
institution or large corporation".
Indeed, it would not be
proper as many summary judgments applications are launched by
financial institutions and large corporations.
Regarding the aspect,
it was lastly submitted that there was nothing wrong with the
affidavit supporting the summary judgment application.
I agree
because the affidavit, in my view, reflects the necessary and
required information.
2.
SECTION
129 READ WITH SECTION 130 OF THE ACT
2.1.
The
respondent contends that the applicant could not institute
proceedings because Section 129 and 130 had not been complied with
as
the Section 129 Notice "was not served on his
domicilium
address".
2.2.
The
respondent further contends that the Section 129 notice should have
been served on his postal address. His address, according
to the
respondent, was changed and that the document with such information
is annexed to the agreement.
2.3.
The
respondent, lastly, contends that the Post Office does not effect
deliveries at his street address meaning that the applicant
was
obliged to deliver the Section 129 Notice on his postal address in
terms of the agreement.
The submissions, in
response to the respondent's contentions are as follows:
1.
Part
A of the agreement read with Clause 13.1 of Part B of the agreement
clearly demonstrates that the address: 1106 Besembiesie
Road, Montana
Park, X23 is, indeed, the respondent's
domicilium
address.
Clause 13.1 provides"
"13.1 You choose,
as the address for the serving of legal notices in terms of this
agreement (notice address), your address
set out in Part A, to which
these terms and conditions are attached".
(my
emphasis).
Clause 13.3 of Part B of
the agreement provides:
"13.3 You must
give us written notice to change your notice address, postal address,
telefax number or e-mail address. The
change will be effective on
10
th
(tenth)
Business Day after receipt of the notice".
(my
emphasis).
There is a document dated
5 April 2013, which is the date of the agreement, which reflects the
respondent's postal address annexed
to the agreement.
The document appears on
page 35 of the papers. It further, below the home address, reflects
the postal address. It is this very
document which discloses that the
respondent is married in community of property after 11 December
1993. The e-mail address is
also provided.
2.
The
respondent has not changed his Notice address as there is no
allegation or document annexed to his opposing affidavit disclosing
that the address has been changed. It appears, according to the
response to the respondent's contentions, that the only document
the
respondent could be referring to in terms of which the notice of
address would have been changed is the document which forms
page 35
of the papers.
It will be remembered
that the document bears the same date as the agreement, namely, 5
April 2012. The document, in my view, in
no way changes the notice
address. It can never be said that the respondent changed his notice
address as the document does not
say so.
3.
Regarding
street delivery which the respondent alleges is not effected by the
Post Office, it was submitted on behalf of the applicant
that the
Section 129 Notice was indeed sent to the correct
domicilium
address and, accordingly, duly delivered for
purposes of the Act.
Section 96(1)(a) of
Act 34 of 2005 (of the National Credit Act),
provides
that a party required or wishing to give legal notice to the other
party for any purpose contemplated in the agreement
must deliver such
notice to the other party at "the address of that other party as
set out in the agreement".
In terms of
Section
96(2) of the Act:
"(2)
A
party to
a
credit
agreement
may change their address by
delivering to the other party
a
written notice of the new address by
hand, registered mail, or electronic mail, if that other party has
provided an email address
”
.
(my
emphasis).
5.
It is noteworthy that Clause 13 of the agreement
relating to
domicilium
addresses
and change thereof is in line with what
Section
96
makes provision for. It was submitted on
behalf of the applicant that the respondent did not change his
domicilium
address;
that his postal address was never his
domicilium
address; and that the
Section
129
Notice was sent to the correct
domicilium
address. I agree.
6.
The respondent contends that the
Section
129
Notice had to be
"served".
It
was
submitted
on behalf of the applicant,
that the
Section
129
Notice,
indeed, did not have to be served. Indeed,
Section
129 (5)(a) of the Act
provides that the
Notice only has to be delivered to the consumer by registered mail or
to an adult person at the location designated
by the consumer (See:
Section 129(5)(b)
)
.
7.
Proof of delivery in terms of
Section
129(7) of the Act
is satisfied by-
1.
Written
confirmation by the postal service or its authorised agent, of
delivery to the relevant Post Office or postal agency
(Section
129(7)(a));
or
2.
The
signature or identifying mark of the recipient contemplated in
subsection (5)(b) (Section 129(7)(b)
).
8.
Courts have had occasions to deal with the word
"delivery". In
Standard Bank of
South Africa Ltd v Rockhill
2010 (5) SA 252
(GSJ) at 2550 and 255F,
the Court said:
"Section
129(1)(a) does not require the consumer to receive the notice. The
credit provider discharges its obligation of delivering
the notice by
sending it to the postal address selected by the consumer'.
The
court applied
Munien v BMW Financial Services
2010 (1) SA 549
(KZD).
Non-compliance with
Section 129(1)(a),
according
to the Court, in no way constitutes a
bona
fide
defence for purposes of summary
judgment. The Court, in
Rossouw v Flrstrand
Bank Ltd 2010 (6) 439 (SCA) [31]-[32],
held
that it will be compliance with
Section
129(1)(a) of the Act
if the credit provider
dispatches the required notice to the consumer in the manner that the
consumer has chosen, for an example,
sending the notice to the
consumer's
domicilium
address
by registered mail. This simply means that it is the consumer's
responsibility to have actual receipt of the notice. In
Majola
v Nitro Securitisation 1 (Pty) Ltd
2012 (1) SA 226
(SCA)
the
principles set out in
Rossouw v Firstrand Bank
Ltd and Munien v BMW Financial Services (SA) (Pty) Ltd
(supra)
were followed. The Court in
Majola
v Nitro Securitisation 1 (Pty) Ltd
(supra)
said that the fact that there is no receipt
of a notice does not render the notice invalid and the issue of
summons premature.
In
Kubyana v Standard
Bank of South Africa Ltd
2014 (3) SA 56
(CC) at 71G-72A,
the
Court,
inter atia,
said:
"[39]...When the
consumer has elected to receive notices by way of the postal seNice,
the credit provider's obligation to deliver
generally consists of
dispatching the notice by registered mail, ensuring that the notice
reaches the correct branch of the Post
Office for collection and
ensuring that the Post Office notifies the consumer (at her
designated address) that
a
registered
item is awaiting her collection. This is subject to the narrow
qualification that, if these steps would not have drawn
a
reasonable consumer's attention to the section
129 notice, delivery will not have been effected. The
ultimate question is whether delivery
as
envisaged in the Act has been effected. In
each
case,
this must
be determined by evidence.
At
76D-G
the court
said:
"[56] The Act
prescribes obligations that credit providers must discharge in order
to bring section 129 notices to the attention
of consumers. When
delivery occurs through the postal service, proof that these
obligations have been discharged entails proof
that-
(a)
the
s129
notice
was
sent
via
registered
mail
and
was
sent
to the
correct branch of
the Post Office, in accordance with the postal address nominated by
the consumer. This may be deduced from a track
and trace report and
the terms of the relevant credit agreement;
(b)
the Post Office issued a notification to the consumer
that a registered item was available for her collection;
(c)
the Post Office's notification reached the consumer.
This may be inferred from the fact that the Post Office sent the
notification
to the consumer's correct postal address, which
inference may be rebutted by an indication to the contrary as set out
in [52] above;
and
(d)
a
reasonable consumer would have collected the s129 notice and engaged
with its contents. This may be inferred if the credit provider
has
proven (a)-(c), which
inference may, again, be rebutted
by
a
contrary indication: an
explanation of why, in the circumstances, the notice would not have
come to the attention of a reasonable
consumer."
9.
It was submitted, correctly, in my view, that
Section
129
Notice was duly delivered in accordance
with the prevailing case law and the amended provisions of the Act.
This, according to the
submission, because delivery in this case, via
registered post is sanctioned by Clause 13 of the agreement; the
Section 129
Notice was
sent to the respondent's
domicilium
address
via registered post; and the first notification was sent to the
respondent as evidenced by the annexed track and trace report
appearing on page 43 of the papers.
10.
It was submitted, on behalf of the applicant, that the
respondent's contention that the Post Office does not deliver post at
his
domicilium
address
and that the applicant was obliged to deliver the notice at his
postal address should not be accepted as there is a track
and trace
report confirming that the first notification was sent to the
respondent implying that the Post Office does effect delivery
at the
respondent's
domicilium
address.
As correctly submitted, there is no allegation made or any
documentary proof annexed proving if and why the Post Office
is not
delivering post at the given address. It was further submitted that
the applicant could (Clause 13.6 of the agreement uses
"may")
"send any notices in terms of this Agreement to your Post Office
box number". The clause gives the applicant
the option where it
is apparent that the Post Office does not effect delivery at the
domicilium
address to
send any notices in terms of the agreement to the respondent's Post
Office box number. It is an option which is created
in favour of the
applicant and not an obligation. It was submitted, on behalf of the
applicant, that the option could not be exercised
as a valid postal
code existed and that the first notification was indeed sent to the
respondent. There is merit in this submission.
FAILURE
TO JOIN THE RESPONDENT'S SPOUSE AS THE SECOND RESPONDENT
11.
The respondent contends that:
(i)
he
is married in community of property;
(ii)
he
should have a written consent from his spouse;
(iii)
his
spouse should have been cited as the second respondent; and
(iv)
that
the application should, accordingly, be dismissed.
On behalf of the
applicant, it was submitted that it is not clear if the respondent
denies that he had such written consent prior
to his entering into
the agreement. It appears that the respondent raises this aspect as a
defence, however, he has a problem which
I shall demonstrate shortly.
12.
The document termed 'Assessment of Repayment Ability'
appearing on page 39 of the papers forms an insurmountable problem
for the
respondent. The document states:
"I understand
that if I
am
married
in community of property, I
am
required
to obtain the
written consent of my
spouse,
in terms of the
Matrimonial
Property Act No. 88 of 1984
, before entering into this Agreement
and/or before increasing the credit limit under my credit facility.
I
confirm that the required spousal consent is held.
"
(my emphasis).
The respondent has not
annexed a spousal confirmatory affidavit stating that she did not
consent to the loan applied for in order
to controvert the
declaration which he made when he applied for the loan.
13.
Section 16(9)
of the
Matrimonial Property Act 88 of
1984
provides:
"(9) When
a
spouse enters into
a
transaction with
a
person contrary to the provisions of
subsection (2) or (3) of this section, or an order under
section 16
(2), and-
(a)
that person does not know and cannot reasonably know
that the transaction is being entered into contrary to those
provisions or
that order,
it is deemed
that the transaction concerned has been entered into with the consent
required in terms of the said subsection (21
or (3). or while the
power concerned of the spouse has not been suspended. as the
case
may
be
...
(my emphasis).
It is, consequently,
submitted on behalf of the applicant that the respondent's contention
is devoid of merit and should be rejected.
14.
The actual defence raised by the respondent, according
to the applicant's Counsel, worthy of consideration, relates to
non-joinder
of the respondent's spouse to the proceedings. I agree.
Section
17(5)
of the
Matrimonial Property Act 88 of 1984
provides:
"(5) Where a debt
is recoverable from a joint estate,
the
spouse who incurred the debt or both spouses iointly may be sued
therefor
, and where a debt has been
incurred for necessaries for the joint household, the spouses may be
sued jointly or severally therefor."
(my
emphasis).
Again the applicant is
given an option by the section to sue the spouse who incurred the
debtor or to sue both jointly. In
Zake v
Nedcor Bank Ltd and Another
1999 (3) SA 767
(SE) at 7700-7718,
the
Court said: "...
Technical points of
non-joinder could have been raised by either spouse long after the
debt had been incurred and creditors, in
those circumstances, could
be severely prejudiced. In my view,
the
enactment of
s 17(5/
was done
with
the specific purpose of protecting creditors in these circumstances
.
so as
to enable
a
creditor to sue the spouse who incurred
the debt or the spouse jointly. To attach a different interpretation
to
s 17(5)
would lead to absurdities and give rise to difficulties
with regard to who to sue at any given time. It
could open the way to unscrupulous
debtor-spouses who could avoid their
liability
in respect of debts incurred in the furtherance of the interest of
the joint estate. I agree with Mr Buchanan thats 17(5)
is unambiguous
and must be interpreted in the sense that
a
creditor is permitted to sue the spouse
who incurred the debt in his or her own name. It would, in those
circumstances. Be
unnecessary
for a creditor to join both spouses in the same action
."
(my emphasis).
15.
It was submitted, on behalf of the applicant, that the
respondent raised technical defences which are not permitted.
16.
The gist of the submissions, on behalf of the applicant,
is that the respondent has failed to raise a defence on the merits.
He
also does
not deny that he is indebted to the
applicant as it alleges. The respondent also does not attack the
validity of the agreement.
All the defences the respondent raised are
indeed, purely technical in nature disclosing nothing to show that
they, indeed, are
bona fide
defences.
I agree. This paves the way for the applicant to be entitled to the
relief that it seeks. I, therefore, have no valid
reason to refuse
the application which must succeed.
ORDER
17.
I, in the result, make the following order:
An order is granted in
terms of prayers 1, 2 and 3 of the Application for Summary Judgment
dated 9 November 2015.
_________________________
M.
W. MSIMEKI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION OF THE HIGH COURT,
PRETORIA