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[2014] ZAGPPHC 41
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Absa bank Ltd v Kritzinger (45980/2013) [2014] ZAGPPHC 41 (27 February 2014)
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Certain
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IN THE HIGH COURT
OF SOUTH AFRICA,PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE
NO: 45980/2013
DATE:
27/2/2014
In the matter
between:
ABSA BANK
LTD
..............................................
Plaintiff
And
JHCI
KRITZINGER.
...................................
Respondent
JUDGMENT
MURPHY J
1.The applicant has
instituted action against the respondent for payment of R906 832,83
together with interest, for an order declaring
certain immovable
property, E… 7… S… Township, executable and for
an order authorizing the issuing of a writ
of execution against the
immovable property.
2.The particulars of
claim and the affidavit in support of the order authorizing a writ
allege that the parties concluded a written
loan agreement in
November 2012 in the amount of R860 000 which would be advanced upon
security of a first mortgage bond being
passed over Erf 709
Sinoville. The loan is to be repaid by the respondent in 240 equal
monthly instalments of R7 728,16.
3.The particulars of
claim, dated 26 July 2013, allege that the respondent is in breach of
contract through his failure to make
the monthly re-payments. They do
not expressly state the date from which the respondent fell into
arrears but state the then current
arrears to be an amount of R46
397,12, being approximately six months payments. The deponent to the
affidavit in support of the
writ, filed in October 2013, puts the
arrear amount at R69 581,60 and states that the respondent has not
made payment towards
his mortgage bond since January 2009. This must
be a typing error, and, considering the arrear amounts, it is
probable that the
respondent has not paid any amount since January
2013, two months after the loan was concluded.
4.After the
respondent delivered a notice of intention to defend, the applicant
delivered this application for summary judgment
alleging that the
respondent had no bona fide defence and that the notice of intention
was filed solely for the purpose of delay.
5.In his affidavit
opposing summary judgment the respondent raises four defences.
Firstly, he contends that the application does
not comply with the
requirements of rule 32 in that the loan agreement, being a liquid
document upon which the claim is founded,
has not been annexed to
the founding affidavit. In the particulars of claim it is alleged
that the written loan agreement has been
lost. Secondly, the
respondent contends that the deponent to the affidavit does not have
personal knowledge of the cause of action
and all the transactions
in the matter. Thirdly, he disputes the amount claimed. And fourthly,
he submits that there has not been
compliance with section 129 of the
National Credit Act 34 of 2005 (“the NCA”), read with
section 130.
6.Since
non-compliance with the NCA may have the consequence of adjourning
the application, it is preferable to examine the submission
made in
that regard first.
7.Section 130
provides that 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 for at least 20 business days and
at least 10 business days have elapsed
since the credit provider
delivered a notice as contemplated in section 129(1)(a) of the NCA
and the consumer has not responded
to that notice or responded by
rejecting the proposals of the credit provider. The section 129(1)(a)
notice should draw the default
to the notice of the consumer 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.
8.In terms of
section 129(1)(b) of the NCA, where the consumer is in default, the
credit provider may not commence any legal proceedings
to enforce the
agreement before first delivering the section 129(1)(a) notice. In
terms of section 130(3)(a) of the NCA, in any
proceedings commenced
in a court in respect of a credit agreement to which the NCA applies,
the court may determine the matter
only if it is satisfied that the
procedures required by section 129 have been complied with. If the
court determines that the
credit provider has not complied with
section 129 of the NCA, the court in terms of section 130(4)(b) of
the NCA must adjourn
the matter before it and make an appropriate
order setting out the steps the credit provider must complete before
the matter may
be resumed.
9.On 10 July 2013
the applicant dispatched three identical section 129(1)(a) notices to
the respondent by registered mail to three
different addresses;
namely “Erf 7… S…..”; “P.O. Box 2….
M…… Park”;
and “2… Peace C….,
R…. A Estate, M Park”. The respondent averred that he
did not receive any of
the notices and that he had no knowledge of
the post office box and street addresses. His address indicated in
the opposing affidavit
is “2… M… Rd, S….”.
With regard to the notice dispatched to Erf 7…. S…..,
he submitted
reasonably that such notice probably would not be
delivered by the post office without there being any street address
or post box
address. The post office “track and trace”
report reflects that the item was received at the Sinoville branch
of
the post office on 15 July 2013 and returned to sender. It arrived
at the Pretoria GPO on 17 July 2013; thus confirming that no
attempt
was made to deliver it to any street address in Sinoville.
10.As stated, the
written loan agreement has been lost. The mortgage bond describes the
subject property only as Erf 7… S…
without recording
any street address. Clause 17.3 of the mortgage bond reflects that
the respondent chose the mortgaged property
as his domicilium citandi
et executandi, but it too does not stipulate any street address.
11.Neither the
particulars of claim nor the various affidavits provide any
explanation for the applicant’s decision to dispatch
the
notices to the street address or post box number in Montana Park.
12.In the result, I
am compelled to accept the averment of the respondent that he did not
receive any of the section 129(1)(a) notices.
13.In Sebola v
Standard Bank
2012 (5) SA 142
(CC), the Constitutional Court held
that the NCA does not demand that the credit provider prove that the
notice has actually come
to the attention of the consumer or proof
of delivery to an actual address. The NCA requires the credit
provider to take reasonable
measures to bring the notice to the
attention of the consumer, and make averments that will satisfy the
court from which enforcement
is sought that the notice, on balance of
probabilities, reached the consumer. To this end, the credit
provider’s particulars
of claim should allege that the notice
was delivered to the relevant post office and that the post office
would, in the normal
course, have secured delivery of a registered
item notification slip, informing the consumer that a registered
article was available
for collection.
14.In the present
case, as mentioned, the applicant did not make any averment
justifying its dispatch of the notice to the two addresses
in Montana
which are unknown to the respondent. As for the dispatch of the
notice to Sinoville, it is clear from the post office’s
“track
and trace” report that it took no steps to deliver a
registered item notification, opting instead to return
the letter to
sender, presumably because the registered letter was not addressed to
a street address. Consequently, it may not
be reasonably assumed
that the notification of the arrival of the registered letter
including the section 129(1)(a) notice at
the post office ever
reached the respondent. The available evidence provides a contrary
indication. Hence the registered letter
slips and “track and
trace” reports do not constitute adequate proof of delivery of
the section 129(1)(a) notice in
terms of section 130.
15.My finding to
that effect has the inevitable consequence, in terms of section
130(4)(b) of the NCA, that this 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.
16.Counsel for the
applicant relied on dicta in ABSA Bank v Petersen
2013 (1) SA 481
(WCC) at 492G in support of the submission that where a defendant
does not give an indication as to what effect he would have
used his
rights in terms of section 129, had he received the notice, the
court should not come to his assistance through the grant
of
appropriate relief. If that is indeed the understanding and
interpretation of Binns-Ward J, as it would seem, I respectfully
disagree. The approach, predicated on the notion that where
illegality is not material relief may be denied, is inconsistent with
the clear dictates of the legislature in section 130(4)(b) of the NCA
regarding the consequences of non-compliance. The courts
are not at
liberty to ignore the letter and spirit of that provision. A court
must adjourn the matter and give directions aimed
at remedying the
non-compliance. The idea behind this requirement is that the consumer
should be allowed the benefit of the processes
contemplated in
section 129(1)(a) of the NCA before proceedings are instituted and
the matter is determined by a court. While this
may at first glance
seem onerous, sight must not be lost of the fact that the credit
provider has a right to terminate any debt
review proceedings, in
terms of section 86(10) of the NCA, after 60 business days.
17.Accordingly, the
application for summary judgment must be adjourned. It is therefore
not necessary at this stage to consider
the other defences raised by
the respondent.
18.For the foregoing
reasons, the following orders are made:
i)The application
for summary judgment is postponed sine die.
ii)The applicant
shall deliver a notice as contemplated in section 129(1)(a) of the
NCA by hand, email or registered post to the
respondent’s
attorney of record within 10 days of this order.
iii)The respondent
shall exercise his rights in terms of section 129(1)(a) of the NCA to
refer the credit agreement to a debt counsellor,
alternative dispute
resolution agent, consumer court or ombud with jurisdiction within 10
days of delivery of the notice referred
to in paragraph ii) of this
order.
iv)In the event that
the respondent does not exercise his rights as contemplated in
paragraph iii) of this order, the applicant
may set down the
application for summary judgment, as supplemented by additional
affidavits, on 5 days’ notice to the respondent.
v)This order will
not alter the right of the applicant in terms of section 86(10) of
the NCA to terminate any debt review 60 business
days after the
applicant applies for such review, should he do so, in terms of
paragraph iii) of this order.
vi)The costs
occasioned by the postponement of the application for summary
judgment will be costs in the application.
JR MURPHY
JUDGE OF THE HIGH
COURT
Date Heard: 22
January 2014
For the
Applicant: Adv U. Lottering
Instructed
By: Hack Stuppel & Ross
For the
Respondent: Adv L Bierman
Instructed By:
Machobane Kriel Inc.