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[2013] ZAGPPHC 86
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Standard Bank of SA Ltd v Snyman (38463/2012) [2013] ZAGPPHC 86 (27 March 2013)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 38463/2012
DATE:27/03/2013
In
the matter between:
STANDARD
BANK OF SA
LIMITED
.....................................................................
APPLICANT
and
OTTO
JEPPE ANDREW
SNYMAN
.........................................................................
RESPONDENT
JUDGMENT
KUBUSHI,
J
[1]
The applicant’s cause of action is based on the respondent’s
breach of the Instalment Sale Agreement entered into
between the
applicant and the respondent. The respondent fell in arrear with his
monthly instalments as per the agreement and the
applicant, amongst
others, is claiming return of the motor vehicle which is the subject
of the Instalment Sale Agreement.
[2]
The respondent is resisting the application for summary judgment. He
filed his opposing affidavit out of time. At the first
hearing of the
application the respondent had not filed his opposing affidavit. The
application was, as a result, postponed to
give him an opportunity to
do so. At the next hearing the matter was postponed again to give him
an opportunity to apply for condonation
for the late filing of his
opposing papers which had already been filed by then. When the matter
appeared before me the respondent
had filed an affidavit explaining
why the opposing papers were filed out of time and requesting the
court to condone the late filing.
The applicant’s counsel
opposed the application on the ground that the respondent should have
filed a substantive application.
After argument by both counsel I
granted the condonation.
[3]
At the beginning of 2012 the respondent encountered financial
difficulties and as a result defaulted in his payments. On 2 August
2012 he was served with a summons and he entered appearance to defend
on 24 October 2012. Somewhere between the date of service
of the
summons and the appearance to defend the respondent applied for debt
review. The applicant was informed about the application
on 23
October 2012. Shortly after receipt of the appearance to defend, on
14 November 2012, the applicant delivered and filed an
application
for summary judgment on the respondent. On 5 December 2012 the
applicant was provided with a Form 17.2 informing it
that the
respondent’s application for debt review was successful and
that his debt obligations were in the process of being
restructured.
Despite the Form 17.2 the applicant is proceeding with the summary
judgment application.
[4]
In resistance to the summary judgment, the respondent raised one
point in limine and a defence on the merit. The point in limine,
which I will deal with first is that he did not receive the notice
which the applicant is compelled in terms of section 129 (1)
of the
NCA to bring to his notice. His defence on the merit is based on
section 79 and section 85 of the National Credit Act (the
NCA).
NON-COMPLIANCE
WITH SECTION 129 (1) OF THE NCA
[5]
It is the applicant’s case that it complied with the
requirements of section 129 (1) of the NCA. The applicant’s
counsel contended in argument that even though, as per the track and
trace report, the notice was returned unclaimed to the applicant,
the
applicant complied with the requirements of section 129 (1) as
enunciated in the SEBOLA - judgment. The notice was sent by
registered post to the domicilium of the respondent and the track and
trace report shows that it was delivered to the correct post
office.
[6]
The respondent does not dispute the address that was used by the
applicant, he simply avers that he did not receive the notice.
[7]The
applicant’s counsel is correct a credit provider seeking to
enforce a credit agreement must aver and prove that the
notice was
delivered to the consumer. Where the credit provider posts a notice,
per registered mail, proof of a 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 indications constitute sufficient proof of
delivery. In practical terms this means that the credit
provider must
obtain a post-despatch ‘track and trace’ print- out from
the website of the South African Post Office
as proof that the notice
reached the correct post office. This the applicant did. See SEBOLA
AND ANOTHER v STANDARD BANK OF SOUTH
AFRICA LTD
2012 (5) SA 142
(CC)
at para [75], [76] and [87],
[8] However, it was further held in
the SEBOLA - judgment that 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, 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. See SEBOLA AND ANOTHER v
STANDARD BANK OF
SOUTH AFRICA LTD AND ANOTHER above at paras [79] and
[87].
[9]
In order to satisfy the requirements of section 129 (1), the
respondent must not only receive the notice but must also take
notice
of it. The only reliable evidence before me on this aspect is the
track and trace report. The report proves that the notice
reached the
correct post office as alleged by the applicant. However, it also
proves that the notice did not come to the attention
of the
respondent as it was returned unclaimed to the applicant.
[10]
The court in the SEBOLA - judgment stated also that coupled with
proof that the notice was delivered at the correct post office,
it
may reasonably be assumed in the absence of contrary indication, and
the credit provider may credibly aver as the applicant
did in this
instance, that the notification of its arrival at the post office
reached the consumer and that a reasonable consumer
would have
ensured retrieval of the item from the post office. See SEBOLA AND
ANOTHER v STANDARD BANK OF SOUTH AFRICA LTD AND ANOTHER
above at para
[77].
[11]
It is indeed so, as is apparent from the track and trace report, that
a notification for collection of the notice from the
post office was
sent to the respondent. There is however no evidence that indicates
what happened to the notification once it was
dispatched to the
domicilium address of the respondent. What we know is that the
respondent did not collect the notice from the
post office because it
was returned unclaimed to the applicant.
[12]
The evidence before me shows that as early as October 2012, after
service upon him of the summons, the respondent approached
his
attorney for assistance to apply for debt review. This to me is not
indicative of a man who is trying to evade payment of his
debts. To
the contrary, the evidence shows that he is zealous to have his
debts, including that of the applicant, paid. There is
no specific
reason, in my view, why the respondent, if he had received the
notification, would not have collected it from the post
office. The
inference I can make from the proven facts is that the notification
did not reach him.
[13]
I am therefore satisfied that despite the applicant’s proven
efforts, the respondent’s allegations are true, he
did not
receive the notice. Since he did not receive the notice it follows
that the applicant did not comply with the provisions
of section 129
(1) of the NCA. The respondent’s point must be upheld.
[14]
This, however, is not the end of the matter. Non-compliance with the
provisions of section 129 (1) does not lead to a nullity
but to a
pause of the proceedings. Section 130 (4) (b) makes it clear that
where a credit provider has not complied with the relevant
provisions
of the NCA by for example, failing to first provide notice to the
consumer, as contemplated in section 129 (1) the action
is not void.
See SEBOLA AND ANOTHER v STANDARD BANK OF SOUTH AFRICA LTD AND
ANOTHER above at para [53].
[15]
The bar on proceedings is thus not absolute, but only dilatory. I
must, therefore, adjourn the matter, and make an appropriate
order
requiring the first respondent to complete specific steps before
resuming the matter.
[16]
The Instalment Sale Agreement does not set out the manner of delivery
of notices to the respondent. I am, therefore, of the
view that in
order to ensure that the notice reaches the respondent an order that
the notice be served by the sheriff will suffice.
[17]
The respondent is the successful party in this matter and is entitled
to the costs of this application. However, he was ordered
on 18
December 2012 to pay the wasted costs on the scale as between
attorney and client. He was ordered again on the 6 February
2012 to
pay the applicant’s wasted costs for the postponement on an
attorney and client scale.
[18]
Consequently I make the following order:
a.
the summary judgment application is postponed sine die.
b.
The applicant is ordered to serve the respondent with another notice
in terms section 129 (1) of the NCA before the matter can
be resumed.
c.
The notice must be served by the sheriff at the respondent’s
domicilium address.
d.
the applicant to pay the costs of the application.
e.
The respondent to pay the wasted cost occasioned by the postponement
of 18 December 2012 and 6 February 2013 on an attorney and
client
scale.
E.M.
KUBUSHI
JUDGE OF THE HIGH COURT
HEARD
ON THE : 06 MARCH 2013
DATE
OF JUDGMENT : 27 MARCH 2013
APPLICANT’S
COUNSEL : ADV E. DE LANGE
APPLICANT’S
ATTORNEY: HACK STUPEL & ROSS
RESPONDENT’S
COUNSEL : ADV L. K. VAN DER MERWE
RESPONDENT’S
ATTORNEY : CAWOOD ATTORNEYS