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[2015] ZAGPPHC 1126
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Kgomo and Another v Standard Bank of South Africa and Others (47272/12) [2015] ZAGPPHC 1126; 2016 (2) SA 184 (GP) (15 June 2015)

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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
CASE
NO: 47272/12
DATE:
15/6/2015
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
MORRIS
NARE
KGOMO
First Applicant
HELLEN
KGOMO
Second Applicant
and
STANDARD
BANK OF SOUTH
AFRICA
First Respondent
RICHARD
MALUSI
MAHLANGU
Second Respondent
REGISTRAR
OF DEEDS, JOHANNESBURG
Third Respondent
JUDGMEN
Introduction
[1]
This is an application for rescission of a judgment granted by
default on 30 January 2014.  It is unusual in that the parties

rely on seemingly conflicting judgments of the Constitutional Court
in seeking and resisting rescission respectively.
[2]
Judgment was granted for the amount of R276 278, 15, together with
interest, an order declaring certain immovable property to
be
specially executable, an order authorising the Registrar to issue a
warrant of execution against the property and costs on the
attorney
and client scale. The grant of default judgment followed on the
applicants' default on their mortgage loan with the first
respondent
("the bank").
[3]
The property in respect of which judgment was granted is Erf [.....],
O. V. T., Registration Division IQ, Gauteng. The rescission
is sought
in terms of rule 42(1)(a) of the uniform rules of court on the basis
that it was erroneously sought and erroneously granted
in the absence
of the party affected by it.
[4]
An interdict was also sought preventing the Registrar of Deeds from
transferring ownership of the property to the second respondent.

However, it transpired that the property had already been transferred
to the second respondent on 13 August 2014, before the application

for rescission of judgment was commenced. There was no attempt to
amend the notice of motion to accommodate this development.
Factual
background
[5]
The main basis for the applicants' contention that the judgment was
erroneously  sought and granted was the bank's failure
to comply
with section 129(1) read with s 130 of the National Credit Act, No. 3
of 2005 ("the NCA"). They require delivery
of a notice
before legal proceedings are commenced. The notice draws the debtor's
attention to his or her default and invites him
or her to consider
using one of the non-judicial mechanisms provided for in the Act with
a view to agreeing  on a plan to
bring the payments up to date.
[6]
The bank averred in its particulars of claim that -
"[t]he
notice has
been
delivered to
the
post office
responsible for
delivering of post to the defendants' address.
The post
office would in the
normal
course,
have
secured
delivery
of
a
registered
item notification
slip
informing
the
defendants
that
a
registered
article
was available
for collection.
The plaintiff
believes
that the
registered
item
notification
of
arrival
slip
reached
the
defendants
and
that
the defendants, as
reasonable
people, would
have
retrieved
the
notice from the post office.
The
plaintiff is not aware of any circumstances to show the
contrary."
[7]
The particulars went on to refer to a copy of the notice which was
annexed together with proof that it had been sent by registered
mail
and the relevant "track and trace" report from the website
of the post office.
[8]
The applicants' address on the notice appears as follows:
"E
and NM Kgomo [...] S. S.
O.
V.
2091"
[9]
It is common cause that this is not in fact the address of the
applicants. The error came about as a result of the erf number
having
been substituted for the street number. Their address is in fact 40
Sterling Street, O. V.. As a result, it was common cause
that the
notice did not reach the applicants before the bank issued summons.
Ambit
of Rule 42(1)(a)
[10]
Rule 42(1)(a) reads as follows:
''The
court may,  in addition  to any  other powers  it
may  have,  mero motu or upon the application
of any party
affected, rescind or vaty:
(a)
an order o
r
judgment  erroneously
sought
or erroneously
granted
in
the absence
of any party
affected
thereby."
[11]
Based
inter
alia
on
the judgments
of the
Supreme Court of Appeal in
Colyn
v
Tiger
Food
Industries
Ltd
t/a
Meadow
Feed
Mills
(Cape)
[1]
and
Lodhi
2
Properties
Investments
CC &
Ano
v
Bonde
Developments
(Pty)
Ltd
[2]
,
the
following principles govern rescission under rule
42(1)(a):
[11.1]
the rule must
be
understood
against its
common law
background;
[3]
[11.2]
the basic principle at common law is
that once a
judgment
has been
granted,
the judge
becomes
functus
officio,
but
subject
to
certain
exceptions of which rule
42(1)(a) is
one;
[4]
[11.3]
the rule caters for a mistake in
the
proceedings;
[5]
[11.4]
the
mistake
may
either
be
one
which
appears
on
the
record
of
proceedings or one
which
subsequently becomes apparent from the information
made
available
in an
application
for
rescission
of judgment;
[6]
[11.5]
a
judgment
cannot be
said to have been granted erroneously in
the light
of a subsequently
disclosed
defence
which was
not known
or raised at the time of default
judgment;
[7]
[11.6]
the error may arise either in the process of seeking the judgment
on the
part
of
the
applicant
for
default
judgment
or
in the
process
of granting
default judgment on
the part of
the court;
[8]
and
[11.7]
the applicant for rescission is not required to show, over and above
the
error, that
there is
good cause
for the
rescission as contemplated in rule
31(2}(b).
[9]
[12]
The applicants have founded their case squarely on rule 42(1)(a) and
it
is against the backdrop of these principles that the
present application must be considered.
Non-compliance
with section
129(1)
read with
130 of the
NCA
The
relevant provisions
[13]
Section 129(1) of the NGA provides as follows:
"129
Required procedures before debt enforcement
(1)
If
the
consumer
is
in
default
under
a
credit
agreement,
the
credit
provider-
(a)
may draw
the default
to the notice
of the consumer in
writing and
propose
that
the
consumer
refer
the
credit
agreement
to
a
debt
counsellor,
alternative
dispute
resolution
agent,
consumer court
or
ombud
with jurisdiction,
with
the
intent
that
the
parties
resolve any dispute under the agreement or develop and agree on
a
plan to bring the
payments under the agreement up to
date; and
(b)
subject
to
section
130(2),
may
not
commence
any
legal
proceedings
to enforce
the agreement
before-
(i)
first
providing
notice
to
the
consumer,
as
contemplated
in paragraph
(a),
or
in
section
86
(10),
as
the
case
may
be; and
(ii)
meeting
any further requirements
set
out in section
130."
[14]
Section 130 provides in relevant part as follows:
"130
Debt procedures in a Court
(1)
Subject
to subsection
(2) a
credit provider
may
approach
the court for
an
order
to
enforce
a credit
agreement
only
if,
at
that
time,
the consumer
is
in
default
and
has
been
in
default
under
that
credit
agreement
for at least
20 business
days and-
(a)
at
least
10
business
days have elapsed since the
credit provider
delivered
a notice
to the consumer
as contemplated
in
section
86
(10), or
section 129 (1), as
the case may be;
(b)
in
the case of a
notice
contemplated
in
section
129(
1
),
the consumer
has-
(i)
not responded
to that notice;
or
(ii)
responded
to
the
notice
by
rejecting
the
credit provider's
proposal;
and
(c)
in
the
case
of
an
instalment agreement, secured  loan
or lease,
the
consumer
has
not
surrendered the
relevant
property
to the credit provider
in terms
of section
127.
(2)
...
(3)
Despite any
provision of
law
or
contract to
the
contrary, in
any proceedings
commenced
in
a
court in respect of  a  credit agreement
to
which
this
Act
applies,
the
court
may
determine
the matter only if the court is
satisfied
that-
(a)
in case
of proceedings
to
which sections 127,
129 and
131
apply,
the procedures
required
by
those
sections
have been
complied
with;
(b)
(c)
(4)
In
any
proceedings
contemplated
in
this
section
if
the
court determines
that-
(
a
)
...
(b)
the
credit
provider
has
not
complied
with
the
relevant
provisions
of this Act,
as
contemplated
in subsection
(3)(a),
...
the court must-
(i)
adjourn
the matter before
it;
and
(ii)
make
an
appropriate
order
setting
out
the steps
the
credit
provider
must
complete
before
the
matter
may
be resumed."
[15]
There are three important decisions of the Constitutional Court
dealing with the interpretation of these provisions.  I
deal
with each in turn.
The
Sebola judgment
[16]
The first
judgment
of
the Constitutional Court dealings with these provisions was
Sebola
and
Another
v
Standard
Bank
of
South
Africa
Ltd
and
Another.
[10]
Sebola
also
involved an application for rescission of
judgment.
[17]
In
Sebola,
the notice in terms of section 129(1) had been sent
by registered mail. The applicants in that case, Mr and Mrs Sebola,
testified
that they had never received it. It turned out that this
was because the postal services had diverted the notice to the wrong
post
office. The Sebolas were able to show from the track and trace
report that the notice, although addressed to their address in North

Riding, had instead been diverted to the Halfway House post office.
[18]
Given
that
the
Sebolas
had
chosen
postal
delivery
of
notices
in terms
of
section
65(2)
of
the
NCA,
[11]
it
was
argued
by
the
credit
provider
that
the
addressing
of the
notice to
the
correct
address
and
its
despatch
via
the
post office
represented
sufficient
compliance
with
the
requirement
of
delivery
of the
notice.
The
Constitutional
Court
disagreed.
[19]
The majority emphasised the significance of section 129, saying -
"[59]
So
the
notice
requirement cannot
be understood by focusing solely
on
s
129.
But
this
does
not
diminish
the
significance
of
that provision.
As SERI and the NCR contended,
one of the
statute's core innovations
is
significantly consumer-friendly
and court-avoidant procedures. These
procedures
are designed
to help
debtors
to restructure their
debts,
or
find other
relief, before the
guillotine
of cancellation or
judicial enforcement falls."
[20]
After
a  careful  analysis  of
the
relevant  provisions,  Cameron  J,  in
whose
judgment
the
majority
concurred,
summarised
the
position
as follows:
[12]
''The
requirement
that
a
credit provider
provide
notice
in terms
of
s
129(
1
)(a) to
the
consumer
must
be
understood
in
conjunction
with
s
130,
which
requires
delivery
of
the
notice.
The
statute,
though
giving
no
clear
meaning
to
'deliver', requires
that the credit provider
seeking
to
enforce
a
credit
agreement aver and
prove that
the
notice was
delivered to
the consumer.
Where
the credit provider
posts
the notice,
proof
of registered despatch
to
the
address
of
the
consumer, together with
proof that
the
notice reached the appropriate post office for delivery to the
consumer, will in the absence
of contrary indication
constitute sufficient proof
of delivery. If,
in
contested
proceedings the
consumer
avers
that
the
notice
did
not reach him or her,
the court must
establish
the truth
of the claim.
If it finds that the credit provider
has not complied
with
s
129(
1
),
it must in terms of
s
130(4)(b) adjourn the matter and
set out the steps the credit provider must take before the matter may
be resumed."
[21]
Given that the credit provider in that matter was not able to
prove that the notice had been delivered to the correct
post office,
the Constitutional Court reversed the order of the high court, which
had refused rescission, and replaced it with
an order granting
rescission.
[22]
The applicants in this matter rely on
Sebola
to argue
that rescission of judgment should be granted.
The
Ferris judgment
[23]
The next judgment
of the
Constitutional
Court that
is relevant
is
Ferris
and
Another
v
FirstRand
Bank
Ltd
.
[13]
In that
case,
events
played
out
differently
from both the
Sebola
matter
and the present matter.
Mr and Mrs
Ferris had similarly
defaulted
on
a
loan
secured
by
a
mortgage
over
their
property.
However
they
applied
to
a
debt
counsellor
for
debt
review
in
terms
of
s
86(1) of
the NCA. This was followed
by an
application by the debt
counsellor
to
the
Randburg
Magistrates
Court
to
have
Mr
and
Mrs
Ferris
declared
over-indebted and to rearrange
their debt
obligations.
[24]
While this application was pending, FirstRand Bank sent a notice
under s 86(10) to Mr and Mrs Ferris purporting to terminate
the debt
review, as the bank was entitled to do. However Mr and Mrs Ferris
insisted throughout that they never received the s 86(10)
notice as
it was not properly delivered.
[25]
Soon after purported despatch of the notice, the magistrate's court
granted a debt restructuring order on the terms requested
by Mr and
Mrs Ferris. Only a week later, Mr and Mrs Ferris fell behind on their
repayments under the debt restructuring order.
Without further
notice, FirstRand then issued summons for payment of the full balance
of the loan plus interest and an order declaring
their home specially
executable. Mr and Mrs Ferris pleaded in response that the debt
review had not been terminated by virtue of
the failure to deliver
the 86(10) notice. The bank ultimately conceded that the notice was
not delivered.
[26]
FirstRand replicated on the basis that it was in any event entitled
to enforce the loan without further notice because Mr and
Mrs Ferris
had breached the debt restructuring order.
[27]
The Constitutional Court accepted this argument. It held that the
Ferris' breach of the debt restructuring order entitled it
to proceed
against them without further notice, regardless of any failure to
deliver the section 86(10)
notice.
[14]
Indeed
the
debt
restructuring
order  gave
the  bank
this
right
expressly.
[28]
The Constitutional Court also went on to say the following in
upholding the high court's dismissal of the Ferris' application
for
rescission of judgment:
"However,
even if further notice were required, its absence is
a
purely
dilatory defence
[15]
-
a
defence
that suspends proceedings
rather
than
precludes
a
cause
of action
-
and is
not an irregularity that establishes that
a
judgment
has
been
'erroneously
granted',
justifying
rescission
under
Rule
42(1)(a).
"
[16]
[29]
It is on this extract from the
Ferris
judgment that the
bank relies, in resisting delivered, the defence raised based on
non-compliance with s 129(1) and s 130 is purely
dilatory and
therefore does not justify a finding that the judgment was
erroneously granted.
The
Kubyana judgment
[30]
In
Kubyana
v
Standard
Bank
of
South
Africa
Ltd
[17]
the
Constitutional
Court
revisited
its
decision
in
Sebola.
In that
case there was
proof of
delivery
of
the
notice
to
the
correct
post
office.
The
post
office
had
sent
notices
to Kubyana
at
his
address
informing
him
that
there
was
a
registered
item
awaiting
collection.
It
appeared
that he had simply ignored these notices.
[31]
It
was argued,
based
on
certain
dicta
in
Sebola,
that
the
fact
that
the
registered
item
was
returned
to
the
bank
as
not
having
been
delivered,
meant that
it had been shown that the notice had not been delivered.
[18]
This
was
rejected in both
the main
and the concurring judgments.
[32]
The court in its main judgment adopted the following approach to the
interpretation of the NCA:
"[21]
Thus, the promotion
of equity
in the
credit market
is to be achieved
by
balancing
the respective
rights and
responsibilities
of credit providers
and
consumers.
It follows
that
the
correct
interpretation
of
s 129 is
one
that
strikes
an
appropriate
balance
between
the
competing interests of
both
parties
to
a
credit agreement."
[33]
It then
went
on to
qualify
those
paragraphs
of the
Sebola
judgment
[19]
that could
be read as meaning that any proof that the notice did not in
fact come
to the
attention of the debtor, no matter what the reason, was sufficient to
hold
that
the notice had not been
delivered.
Instead
the court
held
that
-
[33.1]
the bank was not required to prove that the notice had in fact come
to the subjective attention of the debtor (or "consumer"
in
the language of the statute);
[33.2]
a debtor must respond reasonably when the creditor has properly taken
steps to bring the notice to his or her attention;
[33.3]
not bothering to respond to a notice requiring him or her to go to
the
post
office
and
collect
a
registered
i
tem
did
not amount
to
reasonable
conduct on
the part
of
a
debtor.
[20]
[34]
Notwithstanding
the
qualification
of the
breadth
of
some
of the
dicta,
the
court's
earlier
decision in
Sebola
was
otherwise affirmed.
[21]
Analysis
[35]
Based on these judgments, what are the implications of the admitted
failure to deliver the notice in this case?  Clearly,
the
applicants in this matter do
not
fall in the same category as the defaulter in
Kubyana.
There is no remissness or unreasonableness on the part of the
applicants in the sequence of events that resulted in the failure of

delivery of the notice. The bank has plainly failed to comply with
the requirements  of
Sebola
as qualified in
Kubyana.
Moreover, the error on the bank's part is
apparent from the particulars of claim and the annexures to it.
[36]
The question that arises is whether non-compliance with section
129(1) and the relevant parts of s 130 is merely a dilatory
defence
that does not give rise to an erroneous seeking or granting of
default judgment. If so, rescission of judgment must be
refused.
Answering this question requires closer scrutiny of the relevant
provisions.
[37]
The heading to s 129 is
"[r]equired procedures
before
debt enforcement'
.
In terms of s 129(1)(b),
the delivery of the requisite notice is an essential step in the
absence of which the applicant or plaintiff
"may not commence
any
legal
proceedings
to
enforce
the
agreement".
This is peremptory language.
[38]
Consistent with this, the following extracts from the judgment of the
majority in
Sebola
suggest that strict compliance with
section 129(1) is required:
"[60]1t
is true that {consumer-friendly
and court-avoidant]
procedures are available
to consumers
from
the outset of the credit relationship. Indeed,
as
the
bank
pointed
out,
the
regulations
require
that
most credit
agreements
include,
from
their
inception,
a
statement
of
the consumer's right to apply for alternative dispute
resolution and for debt counselling. But access to
debt
counselling and extra-judicial resolution will undoubtedly
have their most potent
impact
when
the guillotine
is about to fall.
And it
is at this point, before the credit provider resorts to court
process, that
the legislation insists
the
consumer should have the benefit
of
a
notice.
This plain
statutory
objective
must
significantly
influence the meaning we give to 'deliver' in s 130."
(emphasis
added)
[39]
In a similar vein, the court held as follows:
"[79]1f,
in contested proceedings, the consumer asserts that the
notice
went astray after reaching
the post office, or was not
collected, or not attended
to once
collected,
the court
must
make
a
finding
whether,
despite the credit
provider's proven efforts, the consumer's allegations are true, and,
if so,
adjourn
the
proceedings
in terms
of
s
130(4)(b)
."
(emphasis
added).
[40]
Although
the
l
ast
extract was, for the reasons already given above, qualified in
Kubyana,
[22]
nothing
in
Kubyana
suggests
that
the
Constitutional
Court
wished to
relax
Sebola's
insistence
on strict compliance with s 129(1) and s 130,
albe
i
t
based on
the court's
i
nterpretation
of section
129
as not
requiring subjective
delivery.
[41]
Significantly, in
Sebo/a,
the court had no hesitation, once it
found that these provisions had not been complied with, in
overturning the high court's refusal
of rescission of judgment:
"[81]
...
So,
the
Bank was obliged not only to send the notice to their address at the
North Riding post office, which it did in fulfilment of
its agreement
with
the
Sebo/as; the
statute
also
obliged
it to show
that
the notice actually reached
the
correct post
office.
That
did not happen. The
Sebo/as
were
therefore
entitled
to
rescission
of
the
judgment
granted
against
them.
The  proceedings
against
them
should   have been
adjourned
to
allow
the
Bank
to
rectify
the
omission
in
regard
to
the notice.'
[23]
(emphasis
added)
[42]
On the face of it, the approach of the Constitutional Court in
Sebola
in this regard, is difficult to reconcile with the approach
reflected in the extract from the
Ferris
judgment on
which the bank relies. For ease of reference, I repeat it and will
refer to it as "the
Ferris
dictum":
"However,
even
if
further
notice
were
required,
its
absence
is
a
purely
dilatory
defence
[24]
-
a
defence
that
suspends
proceedings
rather
than
precludes
a
cause
of
action
-
and
is
not
an
irregularity
that
establishes
that
a
judgment
has
been
'erroneously
granted',
justifying
rescission
under Rule 42(1)(a).”
[25]
[43]
As authority for its view that the defence raised was purely dilatory
and did not provide a permissible basis for granting
rescission, the
Constitutional Court referred to the decision of the majority in
Sebola,
where the court had held as follows:
[53]
First, it is impossible
to
establish
what
a
credit
provider is obliged and
permitted
to
do
without
reading
both
provisions.
Thus,
while
s
129(
1
)(b)
appears to prohibit the commencement of legal proceedings a/together
('may
not
commence'),
s 130
makes
it
clear
that
where
action is instituted without prior notice, the action is not void.
Far
from it.
The
proceedings
have life, but
a
court
'must' adjourn the matter, and make
an
appropriate
order
requiring
the
credit
provider
to
complete
specified steps before resuming the matter.
[26]
The
bar on proceedings
is
thus not absolute, but only d
ilatory.
The absence of notice leads to
a
pause,
not to nullity.
But
to deduce this, it is necessary to read s 129
in
the light of s
130.
Section
129
prescribes
what
a
credit
provider
must
prove (notice
as
contemplated) before
judgment
can
be
obtained, while s
130
sets
out
how
this can
be
proved
(by
delivery)."
(emphasis
denoted
by
underlining
added).
[44]
However, as I have shown, the dilatory nature of the defence did not
preclude the court in
Sebola
from granting rescission of
judgment.
[45]
A possible
basis for reconciling the
Sebola
judgment
with the
Ferris
dictum
may
be
that,
unlike
the
case
in
Ferris,
the
application
for
rescission
of
judgment
in
Sebola
was not
based on rule 42(1)(a).
Given that
the default
judgment
in question
in
Sebola
had
been given by the registrar
in terms of
rule
31(5)(b),
one
may
assume
that
rescission
of
the
judgment
had
been
sought
under rule
31(5)(d).
There
the
applicant
for
rescission
must show
good
cause,
including
a
bona
fide
defence,
on
the
same
basis
as
that
required under rule 31(2)(b).
[27]
[46]
However, it would be anomalous that a procedural error involving the
failure to deliver a peremptory, statutory notice to the
defendant,
constituted a
bona
fide
defence for
purposes of a rescission application under the rule 31(5)(d), but not
an error justifying rescission under rule 42(1)(a).
[47]
What also
suggests that the judgments
are not to
be reconciled on the basis of
rescission
having
been
sought
under
a
different
rule,
is that
the
Constitutional Court gives as authority for the
Ferris
dictum,
the following:
[28]
"In
a
different
context,
Mthanthi v
Pepler
1993 (4) SA 368
(0) at 3761-J
held
that
a
merely
dilatory
defence
is
not
bona
fide.
I
emphasise, however,
that good cause
(including
a
bona fide defence)
is
not required
for rescission under Rule 42(1)(a)
as
stated in [13] above."
[48]
Applying the
Ferris
dictum, that would seem to exclude
noncompliance with s 129(1) read with s 130 of the of the NCA, as a
basis for a
bona
fide
defence in the context of
an application for rescission of judgment in terms of rule
31(5)(d). Accordingly, the differing
approaches to the grant or
refusal of rescission of judgment in
Sebola
and in the
Ferris
dictum, cannot be reconciled on the basis that
rescission was sought under different rules.
[49]
However, it is in my view not necessary to reconcile the
Sebola
judgment and the
Ferris
dictum for two reasons.
Firstly, the
Ferris
dictum seems to be an
obiter
dictum.
The main thrust of the judgment in
Ferris
was
that the respondent was entitled to proceed to enforce the debt
without  further notice  because   Mr  and

Mrs   Ferris  had  defaulted   under
the  debt restructuring order granted by the
magistrate's
court. The court did not rely on the
Ferris
dictum in order to
reach its conclusion.
[50]
Secondly, the present matter is distinguishable from the
Ferris
matter because it dealt with a notice in terms of s 86(10) and
the present matter involves a notice in terms of s 129(1). Although

notices in terms of s 129(1) and 86(10) are treated in an identical
way in s 129(1)(b)(i) and s 130(1)(a), the functions performed
by the
notices are markedly different. The function of the s 129(1) notice
is to ensure that there is a pause during which non­
judicial,
dispute resolution mechanisms are encouraged, before legal
proceedings are resorted to. By contrast, a notice in terms
of
section 86(10) performs the functioning of terminating a debt review.
It thus signals the end, rather than the beginning, of
attempts to
resolve over-indebtedness through non-judicial dispute resolution.
Granted, through the provisions of s 130(1)(a),
s 86(10) also creates
a pause before litigation is commenced. But there is no distinct,
non-judicial dispute resolution process
linked to it.
[51]
In those circumstances it seems to me that the absence of a s 86(10)
notice is more appropriately described as a purely dilatory
defence
than the absence of a s129(1) notice.
[52]
Ferris
is also partially distinguishable from the present
matter insofar as the
Ferris
dictum relates only to the
erroneous
grant
of rescission. In the present matter,
the applicants for rescission assert that the judgment was both
sought and granted erroneously.
[53]
Consideration  must
also
be
given
to
the
fact
that
the
Sebola
judgment
received
the
endorsement
of
the
Constitutional Court
in
the
Kubyana
judgment,
which
is
more
recent
than
the
Ferris
judgment.
[29]
The
Constitutional Court in
Kubyana
picked
out
those
passages
from
the
Sebo/a
judgment
that it believed to require qualification.
Sebofa's
treatment
of non- compliance with
s 129(1)
and s 130
as
justifying
rescission of
judgment
was
not
one of the
parts of
the
judgment
singled out
for clarification
or
correction.
[54]
Based on
Kubyana,
strict compliance with s 129(1) remains the
order of the day. Strict compliance requires that where s 129(1) is
not complied with,
section 130(4)(b) comes into play. It peremptorily
requires that the court
"must
...
adjourn
the
matter
...
and make an appropriate
order
setting out
the
steps
the
credit
provider
must
complete
before
the
matter
may
be resumed".
[55]
The bank as plaintiff pleaded delivery of the notice to the
applicants as defendants, in its particulars of claim.  Yet
it
is clear that its pleading was erroneous and that there was no such
delivery. In terms of s 129(1)(b), the respondent was precluded
from
commencing any legal proceedings without delivering a s 129(1) notice
beforehand. In terms of s 130(1)(a), ten business days
had to have
lapsed after any notice, before legal proceedings were commenced.
That too was not complied with. The judgment was
therefore
erroneously sought.
[56]
The
flawed
s
129(1)
notice,
reflecting
the
incorrect
address
for
the
applicants,
was
an annexure
to
the
particulars
of
claim.
That
the
address was
incorrect
was
apparent
by
comparing
it
with the
correct address reflected in the particulars of claim.
That
address reflected a street number
that did
not coincide with the erf number.
The error
was
thus
apparent
on the
record
when
default
judgment
was
granted.
In
any
event,
it
is
not
nnecessary for
compliance
with the requirements for
rescission
in rule
42(1)(a)
that the error be apparent on the record.
[30]
In
those
circumstances,
the
court was
required
to
proceed
in terms
of
s
130(4)(b)(i)
and
(ii)
of the NCA
by adjourning the proceedings and directing what steps the bank must
take before the proceedings were resumed. It did
not do so.
The
judgment was thus erroneously granted within
the meaning
of rule
42(1)(a).
[57]
The judgment was granted in the absence of the applicants.
[58]
On that basis, the applicants are entitled to rescission of the
judgment granted against them.
Additional
relief sought
by the
applicants
[59]
In their notice of motion, the applicants also sought -
[59.1]
in prayer 2, the setting aside of the subsequent sale in execution of
the property;
[59.2]
in prayer  3, an  interdict  preventing  the
registrar  of deeds from
transferring ownership of the
immovable property;
[59.3]
in  prayer  4,  an  order  setting
aside  the  order
declaring
the immovable property to be especially executable;
[59.4]
in prayer 5, an order setting  aside the writ of execution
issued against the property;
[59.5]
in prayer 6, an order of costs on the attorney and client scale.
[60]
The rescission of the judgment justifies the setting aside of the
sale in execution.
[61]
However, as
pointed out
above, by
the time
that the application was
l
aunched,
transfer
of the
property
had already
been
registered
in favour
of the
second
respondent.
Accordingly,
the
granting
of
an
interdict
would
be
of
no
practical
effect.
Nor was
any
attempt
made to
amend
the
notice of
motion to provide for the setting aside of the transfer.
Nor could
there have been without
the
notice
of
amendment
being
served
on the
second
respondent,
the
transferee,
who
has
to
date
not
participated
in the
proceedings.
Counsel
for
the
applicants
stated
that
further
proceedings
would
be
required
to
deal
with
the
consequences
of
the
rescission
of
the
judgment
and
cancellation of the sale in execution in
this
regard.
[31]
[62]
As far as the writ of execution is concerned, because this has
already been acted upon by the deputy sheriff, I questioned
whether
there was any point at this stage in setting it aside. Although
counsel for the applicants did not press for this relief
because of
my questioning,  it seems to me that the applicants are entitled
to it as a consequence of the rescission of judgment.
[63]
Finally, as far as costs are concerned, the applicants sought to
motivate a punitive costs order on the basis of the error
on the part
of the respondent in incorrectly addressing the notice in terms of s
129(1) of the NGA.
[64]
In my view no ma/a
tides
was shown on the part of the
respondent. It appears to have been a
bona fide
error. In
those circumstances, there is no basis for a punitive costs order.
[65]
I accordingly make the following order:
(1)
The judgment granted by default on 30 January 2014 under the above
case number is rescinded.
(2)
The sale in execution  of the immovable property known as Erf
[.....], O. V. T., Registration Division
1.Q., the Province of
Gauteng measuring 300 (three hundred) square metres, held by Deed of
Transfer T067533/05 is set aside.
(3)
The writ authorising the sale in execution is set aside.
(4)
The order declaring Erf [.....], Ormonde Township to be specially
executable is set aside.
(5)
The respondent is ordered to pay the costs of the application.
________________
A
DODSON
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
PRETORIA
Counsel
for the applicants:
ADV GDM DUBE
Instructed
by:
MOYO INC,
170 Franzina Street,
Cnr Paul Kruger/Franzina
Street,
Mayville,
Pretoria
Counsel
for the respondent
:
ADV HP
PRETORIUS
Instructed
by:

LE ROUX VIVIER & ASSOCIATES,
clo
VAN STADE VAN
DER ENDE INC
319 Alpine Avenue,
Cnr Alpine
I
South
Village Lane, Lynwood,
Pretoria
Date
of
hearing
:

4 May 2015
Date
of judgment:                                    10

June 2015
[1]
2003
(6) SA
1 (SCA).
[2]
2007
(6)
SA 87
(SCA).
[3]
Colyn
above
at paras 1-5.
[4]
Colyn
above
at para 4.
[5]
Colyn
above
at paras 5 and 9.
[6]
Lodhi
above
at paras 24 and 26.
[7]
Lodhi
above
at paras 17 and 27.
[8]
See the wording of the rule. See also
De
Wet
&
Others
v Western Bank Ltd
1979
(2)( SA
1031
(A)
at 1038 E-H.
[9]
See para 47 below.
[10]
2012 (5) SA 142 (CC).
[11]
Section 65 reads in relevant part as follows:
"65
Right to receive documents
(1)
Every
document
that is
required
to be delivered
to
a
consumer
in
terms
of
this Act must be delivered in the
prescribed
manner, if any.
(2)
If
no
method
has
been
prescribed  for
the
delivery
of
a
particular
document  to
a
consumer,
the person required to deliver that document must-
(a)
make the document available to the consumer through one or
more of the following mechanisms-
(i)
in
person at the
business
premises of the credit provider, or at any other location designated
by the consumer but at the consumer's expense, or
by ordinary mail;
(ii)
by fax;
(iii)
by
email;
or
(iv)
by printable web-page; and
(b)
deliver it to the consumer in the manner chosen by the
consumer from the options
made
available
in
terms
of
paragraph
(a)."
[12]
At
para
[87].
[13]
2014 (3) SA 39 (CC).
[14]
At
paras
14-17.
[15]
Sebola
above
n 7 at
para 53.  The
reference
is that of the Constitutional
Court
in its
judgment
at fn
18.
[16]
Above at para 17
[17]
Kubyana
v
Standard
Bank
of
South Africa
Ltd
2014
(3) SA 56
(CC).
[18]
At para 11.
[19]
e
paragraphs
79
and
87
of
Sebola,
dealt
with at
paras
41
-
54
of
Kubyana.
[20]
At paras 45 - 48.
[21]
This is apparent from a conspectus of the
Kubyana
judgment
and the
conclusion at para 54.
[22]
At para [44].
[23]
References to "the court" are references to the majority
judgment
in the
decision.
[24]
Sebola
above
n 7 at para 53.  The reference is that of the Constitutional
Court in its judgment
at fn 18.
[25]
Above at para 17.
[26]
Section
130(4){b)(i)
and
(ii).
The
reference
is that
of the
Constitutional
Court
i
n
I
n
59 of
its
judgment.
[27]
Pansolutions
Holdings
Ltd
v P
&
G
General
Dealers
and
Repairers
CC
2011
(5)
SA
608
(KZD)
at
paras 5 - 15 and 17.
[28]
Ferris
at
footnote
19
[29]
See in this regard
Gcaba
v Minister for Safety
&
Security
and others
2010
(1) SA 238
(CC) at para [77] which renders this is a relevant
criterion
in
determining which Constitutional
Court
decision
to
follow
where there may be
difficulties
in
reconciling
the
judgments.
[30]
See para 11.4
above.
[31]
On the impact of rescission of judgment
in these
circumstances, see
Knox
NO v Mofokeng and
Others
2013
(4) SA 46
(GSJ) at paras 1
-
5.