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[2024] ZAGPPHC 870
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Standard Bank of South Africa Ltd v Bloomberg (11365/22) [2024] ZAGPPHC 870 (16 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case No 11365/22
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
16 August 2024
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LTD
Plaintiff
and
MELISSA
BLOOMBERG
Defendant
JUDGMENT
HASSIM
J
1.
The plaintiff has instituted an action
against the defendant for amongst others, an order confirming the
cancellation of a written
instalment sale agreement (“the
Agreement”) entered into between the parties on 4 December
2020, and following on that
it seeks an order that the defendant
return the motor vehicle which is the subject matter of the
Agreement. The defendant
having delivered a plea, the plaintiff
applied for summary judgment.
2.
The defendant has raised several points
in
limine
to the application for summary
judgement in opposition thereto and has also raised three substantive
defenses. I am of the
view that the issue whether the
provisions of section 129 of the National Credit Act, Act No 34 of
2005 (“the NCA”)
were complied with prior to the
institution of legal proceedings constitutes a triable issue.
Accordingly, it is not necessary
for me to consider the merits of the
points
in limine
nor whether the other two defenses raised by the defendant constitute
a
bona fide
defence to the action. This judgment is therefore confined to
whether a defence of non-compliance with section 129 of the
NCA
constitutes a
bona fide
defence in the circumstances of this case.
3.
Clause
22.1
[1]
of the Agreement
provides for the consumer designating an address where legal notices
in terms of the Agreement may be served.
The address “6[...]
O[...] W[...], Paulusweg, Polokwane” appears in typescript in
Part A of the “Pre-Agreement
Quotation/Cost of Credit”
[Case Lines A14]. However, at Case Lines A15, a line is put
through this typewritten address
in manuscript and is replaced in
manuscript with the address “3[...] E[...] Street,
Murrayfield”. I infer from
this that the latter address
was an amendment to the address in typescript. In the
circumstances it appears that the defendant
designated 3[...] E[...]
Street, Murrayfield
[2]
as the
address for the serving of legal notices in terms of the Agreement
and not 6[...] O[...] W[...], Paulusweg, Polokwane at
which address
(if it exists) there was in any event no attempt made to serve.
4.
Section 129(5)(b) of the NCA requires the
notice in terms of section 129 (1) (a) to be delivered to a location
designated by the
consumer. Clause 22.2 of the Agreement
provides “that the documents to be delivered in respect of
legal proceedings
in connection with this Agreement may only be
served at your notice address”. Clause 22.3 permits the
consumer to change
the notice address by written notice. Neither
party avers that the defendant changed the notice address.
5.
The
return for the service of the notice in terms of section 129 (1) of
the NCA is signed by the deputy sheriff seemingly for Pretoria.
According to the return of service the section 129(1) notice was
served on 26 November 2021 at 6[...] O[...] Avenue, Val De Grace
on
“Mr De Beer (Husband)”. It appears from
correspondence that Val De Grace is located in Pretoria
[3]
.
The return of service states that this address is the
domicilium
citandi et executandi
of “Bloomberg M (De Beer)”. However, this is not
the address which the defendant designated for the service of
legal
notices; she designated 3[...] E[...] Street, Murrayfield. The
address 6[...] O[...] Avenue, Val De Grace does not
appear in Part A
of the Agreement at CaseLines p.A14 nor at CaseLines p.A15.
6.
It
is irrelevant that the notice in terms of section 129 (1)(a) of the
NCA was served on the defendant’s husband who deliberately
concealed it from her. The delivery of the notice did not take
place at the address which the defendant had designated.
It
would have been a different matter if the notice had been served on
the defendant’s husband at the designated address
who on
receipt decided to conceal it from his wife. Non-compliance
with section 129(1) of the NCA is a defence valid in law.
I am
satisfied that the defendant has demonstrated a reasonable
possibility that the defence advanced may succeed on trial.
[4]
7.
In the circumstances the defendant is
granted leave to defend the action. The costs of the
application for summary judgement
are to be cost in the cause.
S
K HASSIM
Judge:
Gauteng Division, Pretoria
(electronic
signature appended)
Date
of hearing: 22 and 24 July 2024
Appearances:
Plaintiff:
Adv
WA Bawa
Defendant:
Mr
JT Roos
This
judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to
the
parties’ legal representatives by e-mail and by uploading it to
the electronic file of this matter on CaseLines.
The date for
hand-down is deemed to be 16 August 2024.
[1]
“
22
Addresses for notices
22.1
You choose, as the address for the serving of legal notices in terms
of this Agreement (notice address),
your address set out in Part A."
[2]
CaseLines
at A15.
[3]
CaseLines
A47.
[4]
Cf.
Erasmus:
Superior Court Practice
,
2ed, Service 21, 2023 at D 1-411.