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[2013] ZAGPPHC 460
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Wesbank A Division Of First Rand Bank Limited v Maphetha (67890/2012) [2013] ZAGPPHC 460 (15 November 2013)
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 67890/2012
DATE:
15 NOVEMBER 2013
In
the matter between:
WESBANK
A DIVISION OF FIRST RANDBANK
………………………………
Plaintiff
LIMITED
(Registration
No. 1929/001225/06
and
MAAKE:
PETER MAPHETHA
……………………………………………
Defendant
(Registration
No. 610605 5175 08 6)
JUDGMENT
JANSEN
AJ
Background:
[1]This is an opposed
exception by the plaintiff raised against the defendant’s plea
on the grounds that it is vague and embarrassing,
alternatively does
not disclose a defence to the plaintiffs claim. The defendant opposes
the exception.
[2] On 24 July 2008, the
plaintiff and defendant entered into a credit agreement in terms of
which the defendant purchased a Nissan
Navara motor vehicle. The
defendant fell in arrears with his normal monthly instalments.
[3] The plaintiff duly
sent, per registered post, a section 129 notice in terms of the
National Credit Act 34 of 2005 (the “NCA”)
to the
defendant’s address as reflected in the credit agreement,
namely 50 Ridgeway Drive, Morningside Manor 2196.
[4] Paragraph 12.2.4 of
the Credit Agreement reads as follows: —
“
12.2.4
Legal proceedings will not be commenced against you unless:
■
You
have been in default for at least 20 business days;
■
At
least 10 business days have elapsed since the default letter or
notice referred to above has been delivered (which 10- day period
may
run concurrently with the 20-day default period);
■
You
have failed to respond to the default letter or you have responded by
rejecting our proposal;
■
You
have not surrendered the Goods to us in terms of section12
7
of
the Act. ”
[5]
Sections
129(1) and 130(1) of the NCA read 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 ivith jurisdiction,
1 villi 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 anu 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.
(2)...
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(9)
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 proposals; 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 as
contemplated in section ‘
127.
[1]
(2)...
” [emphasis added]
[6]
The registered letter in terms of section 129 was despatched on 31
October 2012 and reached the post office responsible for
the delivery
of post to the defendant’s address on 3 November 20.12 and the
summons was served on the defendant on 30 November
2012.
[7]
On 8 February 2013 an application for summary judgment was made. The
alleged bona fide defence raised by the defendant in its
affidavit
opposing the grant of the summary judgment was that there had been
non-compliance with section 130 read -with section
I29(i)(a) of the
NCA. It is unclear as to what happened to this application which has
been bound into the exception bundle which
is indexed and paginated.
From the inscription on the court file it appears that the
application was dismissed by Muller AJ. It
was stated in the opposing
affidavit for summary judgment that the plaintiffs summons was
premature. Furthermore, the defendant
attached proof of two payments
and stated that he had never been in arrears uith his payments in
terms of the credit agreement.
It was apparently based on the
contents of this opposing affidavit, that the application for summary
judgment was dismissed.
[8] The summons was
issued on 23 November 2012, as per the registrar’s stamp on it,
twenty calendar days after the date on
w hich the section 129
registered letter reached the post office responsible for the
delivery of post at the defendant’s
address, namely on 3
November 2012. It was stated in the opposing affidavit that twenty
three calendar days breach the mandatory
thirty business days that
have to elapse before a creditor may sue the debtor. The reference to
business days is intentional as
the NCA and the credit agreement
refer to business days.
[9] After the dismissal
of the application for summary judgment the defendant duly filed his
plea.
[10] A notice to remove
causes of complaint in terms of Rule 23(1) was served on the
defendant by the plaintiff in respect of his
plea in that it was
alleged that the defendant misread section 130 of the NCA in
believing that the twenty day period and the ten
day period referred
to therein run concurrently. It was thus stated in the said Rule
23(1) notice that the summons was premature.
[11] The defendant failed
to remove the causes of complaint within the prescribed fifteen day
period and hence the plaintiff took
an exception to the plaintiffs
pleas. In a nutshell the plaintiffs exception is to the following
effect: —
“
4. The
aforesaid paragraphs are vague and embarrassing in that:
4.1 The periods
referred to in section 130(1) and I30(l)(a) do not run concurrently
for purposes of calculating the dies before
summons can be issued;
4.2 All that is
required is that the ten day period referred to in section I30(i)(a)
had lapsed since the credit provider despatched
a notice in
terms of section
129(1) to the consumer, which notice is despatched only if the
consumer had been in default for a period of twenty
days;...”
[12]
The prayers set out in the exception are as follows: —
“
WHEREFORE
the plaintiff prays for an order:
1.
Upholding the plaintiff’s exception.
2.
Striking out the defendant’s plea.
3. Judgment in
favour of the plaintiff in the following terms:
3.1The defendant is
directed to forthwith (sic) return the motor vehicle being a 2008
NISSAN NAVARA 2.5 DCID/CAB (4 X2) with engine
number YD25901861 and
chassis number VSKCVAD40Z0253153 to the plaintiff, and failing
immediate compliance with this order, the
sheriff or his deputy is
authorised and directed to take the motor vehicle into his possession
wherever same may be found and to
deliver it to the plaintiff;
3.2 Judgment for
the amount to which the plaintiff may be entitled in terms of
paragraph 3.1 above, together with interest
thereon to date of
payment, is postponed sine die, pending the return of the motor
vehicle to the plaintiff and the subsequent determination
of the
value thereof and calculation of the amount to ivhich the plaintiff
is entitled, and thereafter judgment for that amount;
3.3
Costs of suit.
4.
Costs of exception.
5.
Further and/or alternative relief.”
[13] In
Standard
Bank of South Africa Ltd v Rockhill and Another
2010
(5) SA 252
(GSJ)
it was, in this court’s opinion,
correctly held that non-compliance with section 129 is not a bona
fide defence in summary
judgment proceedings. Once it is established
at trial stage that the credit provider has not complied with section
129, the trial
will be adjourned and an order made setting out the
steps the credit provider must complete before the trial is resumed,
as prescribed
by section I30(4)(b) of the
NCA
.
[14] In
Nedbank
Limited v Mokhonoana
2010 (5) SA 551
(GNP
) it was held that legal proceedings for purposes of
section I2g(i)(b) of the NCA are commenced, not by the issue of
summons, but
the service thereof (at paragraphs [13] and [14] at
554). In support of this dictum Ellis AJ referred to: —
“
[13] Ms
Fitzroy, however, contended, ivith reference to Steinberg v
Cosmopolitan National Bank of Chicago
1973 (3) SA 885
(RA); Dada v
Dada
1977 (2) SA 287
(T) at 288C - E; Mills v Starwell Finance (Pty)
Ltd
1981 (3) SA 84
(N) at 89D - G; and a thesis by Hermie Coetzee
'Impact of the
National Credit Act on
Civil Procedural Aspects
Relating to Debt Enforcement' (Ch 6), t
hat service of summons
rather than the issue thereof should be determinative
.”
[emphasis added]
[15]
Further, in
Nedbank Limited v Mokhonoana
2010
(5) SA 551
(GNP)
Ellis AJ held the following at page 553
(paragraphs [7] and [8]): —
“
I am mindful
of the current debate which arose pursuant to the judgments of
Wallace J in Munien v BMW Finance Services (SA) Ltd
and Another
2010
(1) SA 549
(KZD), in which it was found that the sending, and not
receipt, of the
s 129
notice amounts to delivery thereof; and the
judgment of Murphy J in FirstRand Bank Ltd v Dhlamini
2010 (4) SA 331
(GNP), where his Lordship reqinred receipt of the notice, to satisfy
the requirement of delivery - a debate, it is hoped, will
soon be
authoritatively decided by the Supreme Court of Appeal.
On the strength of
the Munien judgment, with which I agreed in FirstRand Bank Ltd t/a
Fnb Homeloans v Benjamin Rossouw and Sandra
Wilson-Rossouw
(unreported), Ms Fitzroy, who appeared for the plaintiff, submitted
that, since ten days had elapsed between posting
and service of the
summons on the defendant, the plaintiff was entitled to an order
enforcing the credit agreement.”
[16] The dispute was
conclusively laid to rest in the case of
Sebola v Standard Bank
of SA Ltd and Another
2012 (5) SA 142
(CC).
[17] In this exception,
as was argued by the plaintiff, the credit agreement required ten
business days to have lapsed since a default
letter had been
delivered (emphasis added). Thus, the plaintiff argued that the
twenty day period and the ten day period may run
concurrently. The
section 129
letter, as set out above, was despatched on 31 October
2012 and, in terms of the track and trace records, reached the
relevant
post office on 3 November 2012.
[18] In terms of whether
the twenty business day period and the ten day period run
concurrently, the learned authors M Roestoff,
F Haupt, H Coetzee and
M Erasmus in an article entitled “
The Debt Counselling
Process - Closing the Loopholes in the
National Credit Act 34 of
2005
”
Potchefstroomse Electronic Law Journal 2009 Volume 12
No 41 state the following: —
“
(a) A
section 129(1)(a)
notice or a
section 86(10)
notice should have been
delivered to the consumer at least 10 business days
[2]
prior to enforcement proceedings, and
(b)
The consumer is in default under that credit
agreémentfor
at
least 20 business days, which two periods may run concurrently
[3]
[emphasis added]
[19] In the
Standard Bank of South Africa Ltd v Rockhill
supra matter the
following was held by Epstein AJ at page 225 (paragraph [5]): -
“
Section 129
requires the credit provider to draw the default to the notice of the
consumer in writing. Although
s 129
does not state how this must be
done,
s 130
provides the answer by referring to 10 days having
elapsed since the credit provider delivered the notice to the
consumer. The
word deliver is not defined in the NCA itself
[4]
but there is a definition in the regulations.
[5]
The regulations
[6]
contain the following definition
[7]
"'delivered"
unless otherwise
providéd
for, means
sending a document by hand, by fax, by e-mail, or registered mail to
an address chosen in the agreement by the proposed
recipient, if no
such address is available, the recipient's registered address.. . .'
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. Munien v
BMW Financial Services (SA) (Ptu) Ltd and Another.
[8]
[20] However in the
Constitutional court matter of Sebola u . Standard Bank of SA Ltd and
Another
2012 (5) SA 142
(cc) in paragraphs [63]—[64], it was
correctly pointed out that one cannot construe a statue by having
regard to regulations.
Hence, regard was had to
section 65(2)
of the
NCA, as it pertains to “consumer rights’’. It
provides: —
“
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).
[64]
Section 96
appeal’s in ch 5 of the Act, which regulates consumer credit
agreements. It appears in part B of that chapter, which deals
with
'disclosure, form and effect of credit agreements'. The provision is
headed 'Address for notice'. It reads: —
(1) Whenever a
party to a credit agreement is required or ivishes to give legal,
notice to the other party for any purpose contemplated
in the
agreement, this Act or any other law, the party giving notice must
deliver that notice to the other party at —
(a) the address of
that other party as set out in the agreement, unless paragraph (b)
applies; or
(b) the address
most recently provided by the recipient in accordance with subsection
(2).
Subsection (2)
provides that a party to a credit agreement may change its 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
[21]
In paragraph [65] the following is further stated: —
[65] Section 168,
which appeal's in ch 8, is concerned ivith the enforcement of the
Act. It appears in part C, which concerns 'miscellaneous
matters'. It
provides: —
Unless otherwise
provided in this Act, a notice, order or other document that, in
terms of this Act, must be served on a person
will have been properly
served when it has been either —
(a)
delivered to that person; or
(b) sent by
registered mail to that person's last known address.’’
If is clear that the
notice never reached the consumer, for example, because it was
returned to the credit provider then there has
been no compliance
with section 129.
[22]
In
Absa Bank Ltd v Mkhize and
Another and Two Similar Cases
2012 (5) SA 574
(KZD)
at par
[56] the following is stated: —
“
In that
context, what is conveyed in paragraph 77 of the majority judgment of
Sebola v Standard Bank of SA Ltd and Another supra
is clear enough.
Coupled with the required allegations in the credit provider's
summons, proof that the notice reached the correct
post office
bi'ings about that —
'it may reasonably
be assumed in the absence of contrary indication . . . that
notification of its arrival reached the consumer
and that a
reasonable consumer would have ensured retrieval of the item from the
post office'. [My emphasis.]”
[23]
In the premises, none of the grounds of exception raised by
the plaintiff to the defendant’s plea has merit. Ground 1 is
that
the periods set out in section 130(1) and (1)(a) do not run
concurrently.
This ground has no merit
as the two periods may run concurrently on a proper reading of the
NCA.
[24] The case law also
seems clear regarding the purpose of compliance with a section
129(1)(a) notice. Notice in terms of section
129(1)(a) of the
NCA
is a mandatory, statutory procedure before launching litigation
proceedings as set out in
First Rand Bank Ltd v Olivier
2009
(3) SA 353
(SEC)
and
Nedbank Ltd & Others v
National Credit Regulator
2011 (3) SA 581
(SCA).
[25] The court’s
attention w'as also drawn by counsel for the defendant to the case
law which prescribes that when a section
I29(i)(a) notice has been
issued and the arrear amount has been paid, a fresh notice is
required prior to the issuing of any court
proceedings should a party
fall into arrears again as was held in
Sarita v ABSA Bank Ltd
2010 (3) SA 443
(GSJ)
at paragraph [10].
[26] The Honourable Judge
Cameron J in the case of
Sebola v Standard Bank of SA Ltd and
Another
2012 (5) SA 142
(CC)
discusses
both sections 129 and 130. It is clear from paragraph [53] thereof et
seq. that once issued, summons remains alive regardless
of the credit
provider’s compliance with the NCA or lack thereof. In this
case the meaning of “delivery” of a
section 129 notice is
discussed in full and it is held, in paragraph [68] thereof, that at
the very least, despatch of the section
129 notice must be effected
by registered mail. As set out above, the majority in the Sebola
supra matter further held that the
credit provider must go further
and establish that the requisite section 129 notice reached the
addressee’s post office and
constitutes sufficient proof of
delivery “in the absence of contrary indication”.
[27] The second ground of
exception is that the manner in which it has been pleaded that the
summons is premature is vague and embarrassing.
It is stated that the
bald denial to be found in paragraph 13 of the plea renders it
difficult to understand the plea to paragraphs
8.1 to 8.5 of the
particulars of claim. This argument is unsound. The denial in
paragraph 13 is immediately qualified by what is
pleaded in
paragraphs 14-17 of the plea wherein the despatch of the section 129
letter on 31 October 2012 is admitted as is the
issue of summons on
23 November 2012. Ten business days, as required by section i3o(i)(a)
of the NCA would have lapsed on 14 November
2012.
[28]
In the premises, the exception is without merit.
Order
In
the event, the following order is made: —
1.
The exception is dismissed with costs.
MM
JANSEN AJ
ACTING
JUDGE
OF THE HIGH COURT
ATTORNEYS
FOR THE PLAINTIFF
BEZUIDENHOUT VAN ZYL
INC.
Unit 5,Surrey Square on
Republic
Cnr Surrey Avenue and
Republic Road
Ferndale
RANDBURG
Tel: oil 789 3050
Fax: (oil) 789 8507
c/o
PETZER, DU TOIT & RAMULIFHO ATTORNEYS
Hatfield Bridge Office
Park
Cnr. Church and Richard
Streets
HATFIELD
Pretoria
Tel: (012) 342 9895
Fax: (012) 342 9790
REF:
MR G VAN DER MERWE/MAT46633
COUNSEL FOR THE
PLAINTIFF
ADVOCATE M REINEKE
ATTORNEYS FOR THE
DEFENDANT
PRINCE MADUA &
ASSOCIATES ATTORNEYS
Country Club Estate
Regus Building 2
Woodlands Drive
WOODMEAD
Tel: 011 079 6442
Fax: (086) 6950 882
c/o
MATSHEGO RAMAGAGA ATTORNEYS
First Floor
Rockslene House
200 Pretorius Street
PRETORIA
REF: PM/MPM/001
COUNSEL FOR THE
DEFENDANT
ADVOCATE H R LIPHOSA
[1]
Although the word 'may' is used in s 129(1)(a) of the NCA, the
giving of the notice is peremptory. This is clear from a reading
of
s 129(1)(a) together with ss 129(1)(b) and 130(1).
[2]
Scholtz JW
et
al
Guide
to the
National Credit Act
(LexisNexis
Butterworths Durban 2008) (n 44) 12-8 point out that
s
129(1)(a)
does not indicate any time limits applicable to the
section itself. The 10 days requirement is derived from
s 130(1)(a).
They submit however, that a
s 129(1)(a)
notice should expressly
state that a response is required within 10 business days from
delivery of the notice. Also see Van Heerden
CM and Otto JM '
Debt
enforcement in terms of the
National Credit Act 34 of 2005
"
2007
Journal
of South African Law
(n
87) 662.
[3]
Da Silva M
et
al
2008
Debt
Counselling - Principles and Guidelines
(n 12)
14; Otto JM
The
National Credit Act Explained
(LexisNexis Butterworths Durban 2006) (n 81) 91; Scholtz et al (n
44) 12-21.
[4]
Section 1 of the NCA
[5]
In the NCA, “this Act” is defined to include a
regulation made under the Act
[6]
GN R489 of 31 May 2006.
[7]
Regulation 1. Definitions
[8]
2010 (1) SA 549
(KZD)
at
5.55A -1. See also Marques v Unibank Ltd
2001 (1) SA 145
(W) ([2000]
4 All SA 1).