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[2015] ZAKZDHC 56
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Standard Bank of South Africa Limited v Mkhwanazi and Another (227/2015) [2015] ZAKZDHC 56 (8 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO.: 227/2015
DATE:
08 JULY 2015
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA
LIMITED
...................................................................................................................................
Applicant
And
B
C
MKHWANAZI
......................................................................................................
First
Respondent
P
MKHWANAZI
.......................................................................................................
Second
Respondent
JUDGMENT
Heard:
22
nd
April 2015
Delivered:
8
th
July 2015
JEFFREY
AJ:
[1]
The applicant claims default judgment
against the respondents for R589 547.28 together with interest
and ancillary relief and
an order declaring the respondents’
immovable property executable. The amount claimed arises from a
loan made by the
applicant to the respondents that was secured by a
first mortgage bond registered over their immovable property. The
respondents
have fallen into arrears with their repayments.
[2]
The application is undefended.
[3]
When this matter came before me I raised
with counsel whether the applicant’s notice to the respondents
as contemplated in
s 129(1)(a)
of the
National Credit Act, No. 34 of
2005
, complied with the provisions of the Act. In particular, I
questioned whether the applicant had established on the papers
that
the provisions of
s 130
had been met. That section stipulates
inter
alia
that at least 10 business days
must have elapsed after the delivery of the
s 129(1)(a)
notice before
a credit provider may approach the Court for an order to enforce a
credit agreement. If these provisions were
not met by the
applicant then the summons would have been issued prematurely; but,
even if it was issued prematurely,
s 130(4)(b)
provides that the
matter must be adjourned and that an appropriate order must be made
setting out the steps that the applicant
must complete before the
matter can be resumed.
[4]
It has been established on papers before
me, read with an annexed track and trace report supplied by the South
African Post Office,
that on 23
December 2014 the applicant’s
attorneys posted a
s 129(1)(a)
notice to the respondents’
chosen
domicilium citandi et executandi
by registered mail; that on 30 December 2014 the registered item
reached the relevant branch of the post office, namely Yellowwood
Park; and, on the same day, that branch sent a notification to the
respondents informing them that a registered item was available
for
their collection. Whether the respondents collected the
registered item or it was returned unclaimed by the post office
to
the applicant’s attorney, does not appear from the track and
trace report or from the papers. The summons was issued
by the
registrar of this Court on 14
th
January 2015.
[5]
The
interpretation of the provisions of the Act is fraught with
difficulties. In particular, the manner in which the
s
129(1)(a)
notice must be ‘delivered’ to the consumer has
been the controversial issue.
[1]
[6]
Prior to the amendment to
s 129
by the
National Credit Amendment Act, No. 19 of 2014, that came into
operation on 13
th
March 2015, the word ‘delivered’ was not defined in the
Act and, indeed, its meaning in s 130 could be described as
enigmatic, at best. The Constitutional Court had occasion to
explain the meaning of ‘delivered’ first, in
Sebola
and Another v Standard Bank of South Africa Ltd and Another
2012
(5) SA 142
(CC) and thereafter in
Kubyana v Standard Bank of South
Africa Ltd
2014 (3) SA 56
(CC). The court said in
Kubyana
that the following considerations applied in
determining the issue of proof of delivery of the s 129(1)(a) notice
when it is posted
to the consumer by registered post:
“
[54]
The Act prescribes obligations that credit providers must discharge
in order to bring s 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
s 129 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 s 129 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.”
[7]
The Amendment Act, that came into operation
on 13
th
March 2015 as I have said above, introduced certain amendments
inter
alia
to s 129 seemingly to address the
shortfalls in that section of the Act. New subsections (5), (6)
and (7) have been included
that now address the matter of ‘delivery’
of the s 129(1)(a) notice. These subsections 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 service 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)
.
[8]
It is, however, unnecessary for the
purposes of this judgment because of the facts before me that I will
refer to below, to consider
the constitutionality of the new
subsection 129(7)(a) that merely provides that proof of delivery
to
the relevant post office is sufficient. These provisions
are
prima facie
at variance with what the Constitutional Court said in
Kubyana
in para [54] that I have quoted above
concerning proof of delivery. I, therefore, leave this question
open.
[9]
On the facts of this matter according to
the track and trace report, the date when the s 129(1)(a) notice was
received by the correct
or relevant branch of the post office and the
date when that branch issued a notification to the respondents that a
registered
item was available for their collection, are one and the
same – namely, the 30
th
December 2014.
[10]
With the date of ‘delivery’
being a known factor, the calculation of the period of 10 business
days from the date of
delivery as contemplated in s 130(1)(a) can be
accurately computed. The section provides that ‘at least
10 business
days’ must have elapsed from the date of delivery.
In other words 10 clear business days are afforded to the consumer.
Accordingly the first and last days must be excluded. It
follows once this calculation is made that the summons was issued
prematurely – the applicant’s attorneys were one day
early in issuing the summons - possibly because the New Year’s
Day public holiday was incorrectly included in the calculation.
The period of ‘at least 10 days’ expired on 14
th
January 2015 and the 15
th
January 2015 was the earliest date when the summons could have been
issued.
[11]
The applicant has accordingly not complied
with the provisions of s 129(1)(b)(ii) read with s 130(1)(a) of the
Act. In the
circumstances the following order will be made in
terms of s 130(4)(b).
[12]
It is ordered:
1.
The application for default judgment is postponed
sine
die
.
2.
The applicant is afforded an opportunity to deliver a notice to the
respondents as contemplated in
s 129(1)
of the
National Credit
Act, No. 34 of 2005
, by registered post directed to the respondents’
chosen address, namely 7 Oriole Road, Yellowwood Park, 4004.
3.
Such notice must, in addition to meeting the requirements of s
129(1)(a) of the Act, also draw the respondents’ attention
to:
(a)
the
fact that an action has already been instituted against the
respondents, the relevant case number and the
fact that an
application for default judgment has been adjourned
sine
die
;
(b)
the
current amount of arrears;
(c)
the
fact that the respondents’ rights in terms of the Act, and in
particular those contemplated by s 129(1)
(a)
of
the Act, are unaffected by the fact that action has already been
instituted and accordingly,
the respondents may forthwith
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.
4.
The applicant is granted leave to set down the application
for default judgment on notice to the respondents, but shall
not
do so until at least 10 business days have elapsed since the delivery
of the notice referred to in para 2 of this order.
5.
The application for default judgment shall be accompanied by evidence
on oath:
(a)
establishing to the best of the applicant's ability that the notice
required by para 2 of this order was delivered to the respondents;
(b)
dealing with the matters referred to s 130(1)(b) of the Act; and
(c)
establishing that there was personal delivery of the said registered
item containing the notice on the respondents by way of
a track and
trace report issued by the South African Post Office;
alternatively
establishing the deemed date of delivery by way of a track and trace
report issued by the South African Post Office indicating
the date
that the correct branch of the Post Office issued and sent a
notification to the respondents that a registered item was
available
for their collection at that branch.
(6)
The costs of the action to date are reserved for later determination.
JEFFREY
AJ
Appearances
:
Counsel
for the applicant: Mr A J Boulle
Applicants’
attorneys : Goodrickes
Ref.
Mr J A Allan/vn/MAT15005
Tel.
031301 6211
No
appearance for the respondents
Date
of hearing : 22
nd
April 2015
Date of judgment
: 8
th
July 2015
[1]
See
Professor
Michelle Kelly-Louw ‘The overcomplicated interpretation of the
word 'may' in
sections 129
and
123
of the
National Credit Act’
(2015
)
132
SALJ
245 at 246-7, where the several authorities on the controversial
issue of what is meant by ‘delivered’ have been
conveniently gathered and referred to.