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[2012] ZAKZDHC 2
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Wesbank, A division of Firstrand Bank Ltd v Jogee (5722/2010) [2012] ZAKZDHC 2 (27 January 2012)
1
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO.: 5722/2010
In the matter between
WESBANK, A DIVISION OF FIRSTRAND
BANK LIMITED
….................
PLAINTIFF
and
NAFEESA JOGEE
….............................................................................
DEFENDENT
______________________________________________________________
JUDGMENT
______________________________________________________________
MOKGOHLOA J
[1] The plaintiff instituted action against the defendant for:
[1.1] termination of the motor vehicle financing agreement entered
into between the parties;
[1.2] the return of the 2003 Mercedes Benz C180K Classic model motor
vehicle bearing engine number: 27194630109314 and chassis
number
WDC203046RR101127;
[1.3] costs of the action on a scale as between attorney and client
including such costs as the plaintiff may incur in locating,
removing
and disposing of the vehicle.
[2] On 29 May 2007 and at Durban the parties entered into a written
instalment sale agreement in respect of a Mercedes Benz motor
car.
The defendant was obliged to pay monthly instalments of R3 352.25 to
the plaintiff in terms of the agreement. The defendant
accepts that
she fell into arrears with her repayments. She however pleaded that
she was under debt review and that an oral agreement
to re- arrange
the defendant’s obligation was entered between the parties.
[3] The plaintiff pleaded further that it has complied with the
defendant’s request for the debt review in terms of section
86
of the National Credit Act 34 of 2005. (“the Act”.)
Furthermore, that the notice of termination of the debt review
was
given to the defendant, the debt counsellor involved, and the
National Credit Regulator after the elapsing of 60 business days.
Accordingly, the plaintiff pleaded that it terminated the application
of debt review after 10 business days had elapsed following
the
notice of termination.
[4] The main issues for determination are therefore the following:
(1) Whether the plaintiff terminated the defendant’s debt
review, inclusive of the question as to whether the plaintiff sent
the section 86(10) notice in terms of the Act;
Whether the plaintiff and the defendant entered into an oral
agreement to re-arrange the defendant‘s obligations to the
plaintiff, inclusive of the question of whether the plaintiff’s
standard terms and conditions excluded such an oral agreement.
[5] I turn to deal with the main issues.
[6] The plaintiff called a witness by the name of Priscilla Govender
an employee of the plaintiff. Ms Govender testified that the
plaintiff operates a smac system in terms of which the interaction
between the client and the plaintiff is recorded in a computer
based
format. Exhibit B was handed in during the trial which is a copy of
the smac report. In terms of Exhibit B on 22 December
2008 a notice
in terms of section 86 (10) of the Act was printed off the system and
that the usual procedure for the plaintiff
was that those section 86
(10) notices were sent via ordinary mail to the recipients and
addresses thereof.
[7] The defendant on the other hand denies that she received any
section 86 (10) notice.
[8] The plaintiff submitted that in terms of the written agreement,
the address of 1 Tudor Place, Berea was the address chosen
by the
defendant for service of all documents. It further argued that the
section 86(10) notice was sent via ordinary postage which
is a
prescribed method of service in terms section 65 (2) (a) of the Act.
Counsel for the plaintiff referred me to a case of
Munien v BMW
Financial Services (SA) (Pty) Ltd
2010 (1) SA 549
KZN at para 23
and
submitted that the plaintiff has discharged the onus of proving that
it sent the section 86 (10) notification terminating the
debt review
and accordingly that debt review was lawfully cancelled by the
plaintiff in or about January 2009 after the expiry
of ten days
referred to in that notice.
[9] Section 86 (10) of the Act provides:
“
(10) If a consumer is in default under a
credit agreement that is being reviewed in terms of this section, the
credit provider in
respect of that credit agreement may give notice
to terminate the review in the prescribed manner to
(a) the consumer;
(b) the debt counsellor; and
(c) the National Credit Regulator,
at any time at least 60 business days after the date on which the
consumer applied for the debt review.”
[10] The section does not state the manner in which the credit
provider is to furnish a defaulting consumer with the notice to
terminate the review. Section 65 of the Act, which deals with the
consumer’s right to receive documents provides:
“
(
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 e-mail; 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).”
[11] Section 96 which deals with the address for delivery of legal
notices (including section 86 (10)), is relevant for present
purposes
and must be read with section 65 (2). It provides:
“
(1) Whenever the party to a credit
agreement is required or wishes to give legal notice to the other
party for any purpose contemplated
in the agreement, or a this Act or
any other law, the party giving notice must deliver that notice to
the other party at-
the address of that other party as set out in the agreement, unless
paragraph (b) applies; or
the address most recently provided by the recipient in accordance
with subsection (2).
(2) A party to a credit agreement may change their 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.”
[12] The plaintiff submitted that in terms of the written agreement,
the address of 1 Tudor Place, Berea, was the address chosen
by the
defendant for service. It further submitted that ordinary postage is
a prescribed method of service in terms of section
65 (2) (a) of the
Act. The plaintiff further referred to clause 16 of the written
agreement which provides:
“
16.1
It is agreed that the addresses given on the schedule to this
agreement shall be the place to which all post, notices or other
communication are to be sent to you and you agree that such
communications shall be binding you.
16.2. You must let the seller
know immediately in writing of any change in your address and the new
address you give must not be
a post box or private bag number. If you
fail to give notice of change of address the seller will be entitled
to use the address
it has for you, for all purposes, even if you are
no longer there.
16.3 You accept that you will be
deemed to have received a notice or letter 5 days after posting the
address you have given.
[13] It is clear that the agreement does not prescribe the method of
posting. In my view, registered mail, which is not the chosen
method
and is also not one of the options provided in section 65(2), does
not offend the provisions of the section. Registered
mail is a more
reliable means of postage which can be easily proved and cannot harm
either party’s interests.
[14] This brings me to the method the plaintiff attempted to use in
proving compliance with the provisions of section 86 (10).
A copy of
a smac report was handed in as exhibit B. From the perusal of exhibit
B one find the following entry on 22 December 2008
‘MC Cloete
Correspondence section 86(10)- termination of debt review notice to
client – customers residential’.
According to Ms
Govender, this entry was made by a certain Mr Cloete. However, Cloete
was not called to confirm that he did sent
the section 86(10) notice
to the defendant. Furthermore, the plaintiff attached a copy of a
letter purported to be a section 86
(10) notice. This letter is not
signed and does not show whether it was posted or not.
[15] In Rossouw and Another v Firstrand Bank Ltd
2010 (6) SA 439
(SCA), the bank in attempting to proof that a section 129 (1) and 130
notices were sent to the defaulting consumer, attached to
its summons
documents titled ‘Notice in terms of section 129(1) of the Act’
and ‘Certificate of compliance in
terms of
section 129(1)
of
the
National Credit Act&rsquo
;, respectively. During the summary
judgment hearing, the bank handed in another document which was
referred as proof that the notice
had been delivered by registered
mail.
[16] Maya JA dismissed the appeal by the bank and stated the
following at 451 C-G:
“
[37] …
(T)he document could not have assisted the bank’s case. On its
face, it lists the names and address of the appellants
among the
addresses to which registered letters are to be sent. But, it further
requires confirmation of the number of the letters
to be posted, the
signature of the client sending the letter or letters, the signature
of the ‘acceptance officer’,
presumably the post office
officials processing the transaction, and the date of the
transaction. None of these entries were made.
These omissions, which
the bank did not explain, materially affect the document’s
reliability. As it stands, it does not
confirm that a registered
letter was actually sent to the appellants. Even if it did, without
the date it is not possible to link
it to the sending of the relevant
notice, particularly in view of the fact that an earlier one was
previously sent in 2008.
[38] In the circumstances, the bank did not prove that it delivered
the notice. As pointed out earlier,
ss 129
(1 (b)(i) and
130
(1)(b)
make this a peremptory prerequisite for commencing legal proceedings
under a credit agreement, and a critical cog in a plaintiff’s
cause of action. Failure to comply must, of necessity, preclude a
plaintiff from enforcing its claim; this despite the fact that
in
this matter it was not disputed that the appellants were in arrears
and thus breached their contractual obligations. The bank,
therefore,
failed to make out a case for summary judgment and it ought to have
been refused. It is unnecessary to consider the
third issue in the
light of this finding.”
[17] In my view, the approach adopted by the Supreme Court of Appeal
supra, regarding proof of posting of the
section 129
notice is
equally applicable to the proof of giving notice or posting of the
section 86(10)
notice. In the circumstances, the plaintiff did not
prove that it delivered the
section 86(10)
notice. Consequently, the
plaintiff cannot enforce the payment of the debt until the debt
review has been properly terminated.
[18] On the second issue of whether there was an oral agreement to
re-arrange the defendant’s obligation to the plaintiff,
Mr
Havemann, on behalf of the defendant, conceded correctly so in my
view, that there is no sufficient evidence to prove that.
[19] I however find that the plaintiff has failed to discharge the
onus of proving that the
section 86(10)
notice was indeed sent to the
defendant and therefore the debt review was not lawfully terminated
Order
The plaintiff’s case is dismissed with costs.
_________________________
JUDGE MOKGOHLOA
COUNSEL
COUNSEL FOR THE APPLICANT : Advocate
JP Broster
INSTRUCTED BY : Easton-Berry Inc
3 The Crescent East
Westway Office Park
Westville
Ref: Mr G Allen/03 0 168
COUNSEL FOR REPONDENT : Mr CW Havemann
INSTRUCTED BY : CW Havemann &
Associates
C/O Maistry & Motsime Inc
Suite 102, 1
st
, Excell
House
Durban
Ref: Charles Havemann / Y.N Maistry
DATE FOR HEARING : 26 August 2011
DATE OF JUDGMENT : 27 January 2012