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[2024] ZAECMKHC 138
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Land and Agricultural Development Bank of South Africa v Ntsekwa and Another (3325/2023) [2024] ZAECMKHC 138; [2025] 1 All SA 395 (ECG); 2025 (3) SA 519 (ECMk) (19 November 2024)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Reportable
Case No.: 3325/2023
Matters heard on: 16
October 2024
Judgement delivered
on: 19 November 2024
In the matter between:
THE LAND AND
AGRICULTURAL DEVELOPMENT
BANK OF SOUTH
AFRICA
Applicant
And
SANDILE CHISTOPHER
NTSEKWA
1
ST
Respondent
BABALWA NTSEKWA
2
nd
Respondent
JUDGMENT
Zono AJ
Introduction
1.
The applicant approached this court by way of a notice of motion
supported by
an affidavit
[1]
.
The applicant seeks the following exact relief in the notice of
motion:
“
1.1
That the judgment be entered against the first and second respondents
(“respondents”) jointly
and severally, the one to pay the
other to be absolved for:
1.1.1 Payment in an
amount of R2172 043.03 (Two Million One Hundred and Seventy-Two Rand
and three cents) together with interest
at the rate of 10.25% per
annum calculated from 27
th
March 2021 to date of full and
final payment, both days inclusive;
1.2
That the immovable property better known as:
1.2.1 Farm
Nr 440 division of Sutterheim Eastern Cape (measuring 179872) ha
1.2.2
Portion 13 of the farm Kabuse Nr 411 Division of Stutterheim, Eastern
Cape (measuring 42,4584) ha
1.2.3 Farm
443 division of Stutterheim, Eastern Cape (measuring 13, 4733) ha
1.2.4 Farm
cotoneaster Nr 424 Division of Stutterheim, Eastern Cape (Measuring
77.4809) be declared specially executable
in favour of the applicant;
1.3
The respondent’s attention is drawn to Section 26 (1) of the
Constitution of the Republic
of South Africa which accords to
everyone the right to have access to adequate housing. Should the
respondents claim that the order
for execution will infringe with
that right, it is incumbent on the respondents to place information
supporting that claim before
the court.
1.4
That above mentioned properties be sold by the applicant or its
appointed agent in conjunction
with the sheriff of the court by
public auction or private treaty;
1.5
That the respondents pay the costs hereof jointly and severally on a
scale as between attorney
and client.
1.6
Further and alternative relief”.
2.
In support of the aforesaid relief the applicant avers that; the
respondents
are married in community of property. They would be
jointly and severally liable for the indebtedness towards the
applicant. On
or about 13th August 2013 the parties entered into a
loan agreement in terms of which the applicant lent and advanced,
alternatively
made available a credit facility to the respondents in
the amount of R1 620 000 (one million six hundred and twenty
thousand
rand). It was a material term of agreement that the
respondents would repay the term loan in 16(sixteen) annual
installments of
which the first payment would be the sum of
R101250.00 payable on the same day.
3.
Should the respondents be in default, the full amount of the term
loan would
be payable and the full outstanding balance would
immediately become due and payable without any further notice to the
respondents.
The applicant would be entitled to call up all or any
security granted to the applicant, including to launch court
proceedings
in terms of which the immovable properties over which
covering mortgage bonds that were registered in its favour be
declared executable.
In the event of breach, the applicant would be
entitled to cancel the agreement and terminate any services available
to the respondents
whilst the respondents remain in breach of the
terms of the loan agreement.
4.
The parties appointed their respective
domicillium citandi et
executandi
where all notices and proceedings would be served in
terms of the agreement. Clause 13.4 of the loan agreement
contemplates that
a written notice of default must be given to the
borrower. The purpose of the clause is exactly the same purpose
contemplated in
Section 129
of the
National Credit Act 34 of 2005
.
5.
Clause 13.4 Provides:
“
13.4
provided, however that:
13.4.1
Land bank has given the borrower written notice of such default and
has proposed that the borrower refer the credit agreement
to a debt
Counselor, alternative dispute resolution agent, consumer court
or ombud with jurisdiction with the intent
that the parties
resolve any dispute under this credit agreement or
develop and agree on a plan to bring
repayments up to date or
has given the borrower notice to terminate any debt review process
under
Section 86
of the
National Credit Act which
may then be
underway in respect of this credit agreement, and
13.4.2
The borrower is, and has been in default under this credit agreement
for at least twenty (20) business days;
13.4.3
at least ten (10) business days have elapsed since Land Bank
delivered the notice contemplated in clause 13.4.1; and
13.4.4
in the case of a notice in terms of clause 13.4.1 above, the
borrower:
13..4.1
has not respond to that notice; or
13.4.4.2
respond to the notice by rejecting Land Bank’s proposal”.
6.
For all intents and purposes, not only the text that suggests that
the provisions
of the
National Credit Act are
applicable in this
contract,
[2]
but
also reference to the provisions the
National Credit Act
in
the whole contract and the provisions. In any event this
agreement is a credit agreement as defined in
Section 8
(1) of the
National Credit Act and
a credit facility that conforms with the
definition in terms of the provisions of
Section 8(3)
of the
National
Credit Act
[3
]
. The applicant in
its founding affidavit states that it complied with the
provisions of
Section 129
read together with
Section 130
of
National
Credit Act 34 of 2005
and the respondents have failed to address
their inability to pay and react to the
Section 129
notice.
7.
The first respondent, as a result of the agreement became a
registered owner
of the seven (7) properties. The respondents live in
one of the properties that are subject matter of this matter.
However, the
applicant is primary and secondary bondholder over the
properties.
8.
The respondents fell in arrears and are consequently indebted to the
applicant
in the amount of R 2 253 235.03 excluding
interests and legal costs as at 31 May 2023. The respondents made
monthly payments
up to and until 27
th
March 2021 and has
failed to make any further payments in respect of their indebtedness
towards applicant. The applicant concludes
that the respondents are
unable to make payments to liquidate their indebtedness towards the
applicant and alleges that the respondents
have admitted that
unequivocally. That conduct is in breach of the contract or
agreement.
9.
The applicant, in full realization that the respondents were in
default, dispatched
a notice in terms of
Section 129
referred to
above. The notice dated 16
th
January 2023 was served
through the services of the sheriff. The respondents have failed to
engage with the applicant despite due
and proper notice.
10.
This application is opposed by the respondents. In so doing the
respondents have delivered
their notice to oppose and their answering
affidavit. Notice to oppose was served on 04
th
October
2023.
11.
The respondents essentially state they paid off their arrear
instalment in full. Before
filing answering affidavit, the
respondents furnished the applicant with proofs of payment
respectively dated 28
th
September 2023 and 19
th
October 2023. Amounts of R 200 000.00 and
R300 000.00 were respectively paid with a view to remedy their
default and to bring their payment up to date. The respondent
expressed their wish not to incur further legal costs and requested
that the matter to be kept in abeyance for two months namely, from
October 2023 to December 2023. Receipt of both payments was
confirmed
by the applicant’s attorneys in their letter of 09
th
October 2023.
12.
On 19
th
October 2023 the respondents caused a letter
enclosing proof of R300 000.00 to be delivered on the
applicant’s attorneys.
In their letter they referred to their
letter of 06
th
October 2023 enclosing proof of payment of
R200 000.00. In two paragraphs the respondents’ letter is
worded as follows:
“
Our
clients instruct us that he has since settled the arrears and we
attach hereto proof of payment in the amount of R 300 000.00.
In
the circumstances, kindly confirm that the matter will be withdrawn
and our client tenders’ payment of legal costs todate.”
13.
Relying on the certificates of balance signed respectively on 08
th
May 2023 and 10
th
May 2023 and Ad Hoc account transaction
list evincing respondents’ payments and indebtedness, the
applicant refused to withdraw
the application. The applicant
expressly indicated that the matter can only be withdrawn upon
payment of the full capital balance
with interest and legal costs.
The applicant invited the respondents to furnish formal settlement
proposals for approval. The proposals
would be approved subject to
respondents’ disclosure of their full financial position. No
further correspondence appears
to have passed. Answering affidavit
was filed of record.
14.
The respondents accept the terms of agreement as foreshadowed above.
They contend that they
continued to pay the annual installments until
around March 2021. They did not pay the annual installments
thereafter including
the year 2022 because of the negative effects of
Covid 19 pandemic and the applicant was advised of respondents’
financial
situation.
15.
The respondents fundamentally state in their answering affidavit
that:
“
9.
I had prior to the launching of this application missed two annual
installments. I was accordingly in arrears to the applicant
for an
amount estimated around R200 000.00. I cannot be certain of the
amount I was in arrears with because the applicant
did not inform me
through a breach letter nor the
National Credit Act Section
129
Notice of the amount I was in arrears in”.
The issue of the two annual installments does not seem to be in
dispute. The dispute is only in respect of
Section 129
notice
[4]
.
16.
For context on this subject or related subject, in the founding
affidavit the applicant
makes the following contention:
“
6.3.1
The respondents were obliged to repay the term loan in sixteen (16)
annual installments of which the first payment in the
sum of R 101
250.00 was due, owing and payable on 13
th
August 2014.”
This allegation is expressely confirmed by the respondents.
17.
Respondents further confirms that on 28
th
September 2024
and 13
th
October 2024 they paid respective amount of R
200 000.00 and R 300 000.00 which amounts come to a total
of R 500 000.00.
It is a common cause that this amount of money
was paid. According to the respondent the credit agreement was “
ipso
facto
” reinstated in terms of the provisions of
Section 129
(3) of
National Credit Act.
18.
With
regard to the fact that the applicant seeks an order declaring
the respondent’s properties executable, the respondents state
that it is inappropriate and premature to seek an order of
executability before or at the same time with the monetary judgment.
There must first be a monetary judgment that will be executed against
movable assets. Only in the event of a
nulla bona
return of
service against movable assets that an order of executability may be
sought.
19.
Whilst it is common cause that parties entered into a loan agreement
on 13
th
August 2023, they also agree on the terms of the
contract or agreement. The respondents admit that they missed two
annual installments.
They defaulted. According to the respondents,
the two annual installments with which the respondents were in
arrears were approximately
R 200 000.00. That estimate is not
gainsaid. However, the respondents paid to the applicant a total
amount of R500 000.00
during the months of September 2023 and
October 2023 to liquidate their arears. These crisp facts are
determinative of this matter.
20.
It appears to be in dispute that the applicant did dispatch the
requisite notice in terms
of
Section 129
read with
section 130
of the
NCA. I set out to deal with this aspect during the course of my
judgment.
Discussion
and analysis
21.
It is not pleaded by the applicant that when the respective payments
of R 200 000.00
and R 300 000.00 amounting to a total
sum of R 500 000.00 were paid by the respondents the credit
agreement had been
cancelled. It is therefore implied that the credit
agreement was extant when those payments were made. The issue
therefore that
arises for determination is whether those payments
remedied respondents’ default. This drives me now to the
provisions of
Section 129
(3) of the NCA.
22.
Section 129(3)
provides:
“
(3)
Subject to subsection (4), a consumer may at any time before the
credit provider has cancelled the agreement, remedy a default
in such
a credit agreement by paying to the credit provider all amounts,
together with the credit provider’s prescribed default
administration charges and reasonable costs of enforcing the
agreement up to the time the default was remedied”
23.
For context it worths a while to similarly quote the
provisions of
Section 129
(4) of National Credit as the provisions of
Section 129
(3) of NCA are subject thereto. They provide as follows:
“
4)
A credit provider any not reinstate or revive a credit agreement
after-
(a)
the sale of nay
property pursuant to-
(i)
an attachment order; or
(ii)
surrender of property in terms of
Section 127
;
(b)
the execution of
any other court order enforcing that agreement, or
(c)
the termination thereof in accordance with
Section 123.
”
1.
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24. The two
provisions set out instances where credit agreement may be revived,
reinstated and or remedied. However, they
deal and provide for
different circumstances and different stages of default.
Section 129
(3) of NCA is applicable and can suitably be invoked before
cancellation of credit agreement, while
Section 129
(4) of NCA
applies when there is termination, surrender of goods and execution
of court orders arising from enforcement of credit
agreement.
25.
In
Cools
Ideas
[5]
the Constitutional Court
held:
“
28.
A fundamental
tenet
of statutory interpretation is that the words in a statute must be
given their ordinary grammatical meaning, unless to do
so would
result in an absurdity. There are three important interrelated
riders to this general principle, namely:
(a) that
statutory provisions should always be interpreted purposively;
(b) the
relevant statutory provision must be properly contextualised; and
(c) all
statutes must be construed consistently with the Constitution, that
is, where reasonably possible, legislative provisions
ought to be
interpreted to preserve their constitutional validity. This
proviso to the general principle is closely related
to the purposive
approach referred to in (a)”
[6]
.
26.
According to
Section 129
(3) of the
National Credit Act a
default may
be remedied before the credit provider cancels the credit agreement.
The operative word for purposes of this judgment
is the verb
“
remedy
”: Oxford dictionary offers the following
definition for the verb “
remedy
.”
“
Set right (an undesirable
situation); put right
.”
27.
In the context of the empowering provision
[7]
a consumer may only set or put right his default before
the cancellation of the credit agreement by the credit
provider. The only way to remedy a default is by paying all the
amounts overdue, together with the credit provider’s prescribed
default administration charges and reasonable costs of enforcing the
agreement up to the time of default.
28.
Upon paying and or pursuant to the payment of R500 000.00, the
respondents sought the applicant
to withdraw this application as they
believed that the arrears and the related costs or charges that were
overdue were settled;
penned a letter dated 19
th
October
2023 in terms of which the respondent requested applicant to withdraw
the application with the respondent tendering all
legal costs up to
the date of the letter.
29.
The request to withdraw these proceedings was turned down in terms of
applicant’s letter
dated 09
th
October 202 (which I
assume is an incorrect date). The applicant asserts in his letter as
follows:
“
8. The matter can only be
withdrawn upon payment of the full capital balance together with
interest and legal costs in full.
9.We
accordingly await your client’s formal proposal if it wishes to
settle the matter amicably such a proposal will accordingly
be
reduced to a settlement agreement which is to be made an order of
court
”
.
30.
The applicant’s inability to withdraw this application stems
from its firm belief that it
is entitled to the full capital balance.
I do not agree. Only the overdue arrear amount and related costs or
charges that is required
to be paid to remedy the consumers default.
The respondents paid more than or approximately double the arrear
amount that was overdue.
I accordingly come to a conclusion that the
default was effectively remedied by the respondents. The payment of
arrear amount was
at a time when the credit agreement was still
extinct. This is an important prerequisite for a consumer to
successfully remedy
the default in the credit agreement.
31.
The applicant, in the whole tenor of his papers does not suggest that
the overdue arrears or amounts
were not paid. Instead the applicant
acknowledges that an amount of R 500 000.00 was paid by the
respondents during the months
of September 2023 and October 2023,
when the amount that was overdue was far lesser than that. It is not
applicant’s case
that money, costs and charges referred to
Section 129
(3) of the NCA were still not paid. The credit agreement
between the parties was still not cancelled at the time the
respondent
paid the amount of R 500 000.00 to remedy the
default.
32.
If then the default was remedied, why is it necessary that we have
this matter serving before
this court? My view is that there was
simple no virtue of having this application until the stage of
argument, as the credit agreement
was only reinstated in terms of
Section 129
(3) of NCA when the payment of R 500 000.00 was
made. The resistance by the applicant when it was timeously asked to
withdraw
the application is borne out by the fact that it insists on
the payment of the whole capital balance. That view lacks the support
of the law.
33.
In Nkata
[8]
the Constitutional Court authoritatively settled the legal position
in the following dictum:
“
[108]
This prompts the question whether the right of reinstatement in terms
of
Section 129
(3) (a) requires the debtor to pay back the full
accelerated debt or only the arrear instalments. I readily embrace
the conclusion
of the High Court that only the arrear instalments,
and not the full accelerated debt, needed to be paid in order to
effect reinstatement.
This flows without more from the wording and
purpose of the provision. Reinstatement is predicated on “a
credit agreement
that is in default”. It is a rescue mechanism
that is available to the consumer precisely when she has fallen into
arrears
and may be liable to pay the full accelerated outstanding
debt.
[109]
The entitlement to reinstatement would be made useless if the amount
due in terms of
Section 129
(3) (a) were interpreted to mean the full
accelerated debt as most consumers would be unable to reinstate the
agreement by paying
the full debt. That construction would also fall
short of the purpose of the Act to encourage consumers to fulfil
their financial
obligations and resolve over-indebtedness
”
.
34.
Once all the amounts that are overdue, together with the credit
providers prescribed default administration
charges and reasonable
costs of enforcing the agreement up to the time the default was
remedied are paid and before cancellation
of the agreement, the
default is remedied and the credit agreement is
ipso
facto
reinstated.
It is reinstated by the operation of the law.
[9]
The respondents in their letter dated 09
th
October 2023 tendered the legal costs. The respondents in their
answering affidavit did not withdraw their tender of costs. No
legal
costs yet have been quantified for payment. The applicant did not
call for a separate payment of costs. The nature and extent
of the
legal costs has not been given to the respondents. Accordingly,
applicant’s legal costs were not due and payable when
the
default was remedied by payment of R 500 000.00. The respondents
cannot reasonably be expected to take a proactive step
to quantify
the costs. Only the applicant as the credit provider can do that. On
this the Constitutional Court
[10]
held:
“
[123] Properly understood,
Section 129
(3) does not preclude the reinstatement of a credit
agreement where the consumer has paid all the amounts that were
overdue but
has not been given due notice of the reasonable legal
costs, whether agreed or taxed, of enforcing the credit agreement”.
35.
In addition to the above, the applicant has not accounted for the
amount of R 500 000.00
that was admittedly paid to it when
in actual fact it was owed for two annual arrear instalments. It
might be that the amount in
excess of two annual arrear instalments
may cover also the legal costs of enforcement up to the date when the
default was remedied.
I accordingly reiterate my finding that the
default was duly remedied and the credit agreement was duly
reinstated.
36.
In the light of the fact that
Section 129
(3) is subject to
Section
129
(4) of NCA, it behoves one to deal with the provisions of
subsection 4 with a view to clarify that the credit agreement was
duly
reinstated and default was remedied only by the fact of payment
of R500 000.00. Subsection 4 creates a bar to the
reinstatement
revival of the credit agreement. The circumstances
under which a credit agreement cannot be reinstated or revived are
statutorily
prescribed
[11]
.
They are the exception or a bar to the principles governing
reinstatement or revival of the credit agreement. A credit agreement
may not be reinstated or revived after a sale of the property
pursuant to an attachment order or surrender of property in terms
of
Section 127
; after the execution of any other order enforcing that
agreement; or after the termination thereof in accordance with
Section 123.
1.
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37.
All of the factors or circumstances that preclude or bar the
reinstatement or revival of the credit
agreement do not arise in this
matter. On application of the interpretation maxim:
Inclusio
unius est exclusion alterius
[12]
”,
specific
mention of these factors or circumstances under which a credit
agreement may not be revived or reinstated is an exclusion
of any
other factor or circumstance not specifically mention in
Section 129
(3) and (4) of the NCA. Having found that the credit agreement was
duly reinstated at the time when a sum of R500 000.00 was
paid
and accepted by the applicant, I next deal with whether or not the
institution of these proceedings was justified.
Were
the instant proceedings justified?
38.
Section 129
(1) of the NCA provides:
“
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 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; and
(b) subject
to
Section 130
(2), may not commence any 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
”.
39.
In broad general terms, legal proceedings may not be commenced unless
a notice in terms of
Section 129
(1) of NCA has been given to the
consumer. The notice must either be brought to the attention of the
consumer or reached the consumer.
Averments must be made by the
credit provider that the notice probably reached the consumer
[13]
.
40.
Firstly there are no express allegations in the applicant’s
founding affidavit that
the notice, on balance of probabilities
reached the consumer. Secondly there is no indication at all that a
notice was ever addressed
and sent to the second respondent
[14]
.
No allegation in the founding affidavit that the requisite notice was
specifically addressed to the second respondent or was sent
for her
attention. The notices dated 16
th
January 2023 was ostensibly intended to be received only by the first
applicant. It was addressed as follows:
“
Sandile
Christopher Ntsekwa
5[...]
D[...]
King
Williams Town
5600
(By
Sheriff)”
41.
Failure to send or even attempt to send a
Section 129
(1) notice to
the second respondent vitiates these proceedings. It is so because
both respondents are sued as consumers or as persons
who applied for
and granted term loan by the applicant. The following averments in
the founding affidavit are apposite to underscore
the point:
“
The
respondents’ indebtedness
6.1
During or about 13
th
August 2013 the respondents duly
applied for an was granted a term loan subject to the terms and
conditions, which were accepted
by the respondents, to which such
loans are granted by the applicant….
63.1The respondents
were obliged to repay the term loan in sixteen (16) annual
installments, of which the first payment in the sum
of R 101 250
.00 was due owing and payable on 13
th
August 2014…”
42.
There are other instances in the founding affidavit where reference
to respondents is not
only in the plural form, but also specifically
to both first and second respondents. I am therefore fortified
by the pleadings
that both respondents are dealt with and sued as
consumers under credit agreement. Accordingly, on the assessment I
have made above,
I come to a conclusion that these proceedings were
prematurely instituted against the second respondent. The second
respondent
is entitled to the same rights the first respondent and
any other consumer is entitled to under
Section 129
(1) of NCA. There
is no justification for unequal treatment of the consumers and uneven
application of the provisions of
Section 129
(1) of NCA
[15]
.
I am fortified in this proposition by the provisions of Section 9 (1)
of the Constitution which provides:
“
Everyone
is equal before the law and has the right to equal protection and
benefit of the law.”
The
second respondent was accordingly entitled to an individual notice
addressed to her or brought to her attention, containing
the same
rights afforded by Section 129 (1) of NCA.
43.
About the first respondent it is averred that services of the sheriff
were solicited. In
his return of service, the sheriff makes the
following remarks and record:
“
On
this 20
th
Day of February 2023 at 15:02 after a diligent search at 5[...]
D[...], Zwelitsha as a result I was neither able to find Ntsekwa
Sandile Christopher or some person apparently not less than 16 years
of age and apparently residing or employed there, I served
this
notice in terms of Section 129 on Ntsekwa Sandile Christopher at his/
her chosen domicillium citandi et executandi at 5[...]
D[...],
Zwelitsha by leaving a copy of the notice in terms of Section 129 at
such domicillium.
Rule
4 (1) (a) (iv).
Premises
found locked, affixed to security gate.
Address
confirmed with (sic) neighbours at House No 5[...]….”
44.
The first respondent contend in his answering affidavit as follows:
“
9.
I had prior to the launching of this application missed two annual
installments. I was accordingly in arrears to the applicant
for an
amount estimated at around R202 000.00. I cannot be certain of
the amount I was in arrears with because the applicant
did not inform
me through a breach letter nor the NCA S129 notice of the amount I
was in arrears in…”
45.
Paragraph 45-16 of the replying affidavit is dealing with paragraph 9
of the answering affidavit
as follows:
“
15.
The contents of this paragraph is denied. The honourable court’s
attention is specifically drawn to what has been stated
in paragraph
9.13, 9.14 and 9.15 of the applicant’s founding affidavit. I
reiterate that a notice in terms of
Section 129
of the
National
Credit Act 34 of 2005
has been served by sheriff at respondents’
chosen domicillium citandi at executandi and that the sheriff of this
court confirmed
the respondents are indeed resident at the address of
service.
16.
The applicant thus contends that there has been proper compliance
with
Section 129
of the
National Credit Act 34 of 2005
”.
46.
There is no direct allegation by or on behalf of the applicant that
the first respondent
on a balance of probabilities
[16]
received the notice. Accordingly, there are no averments that
satisfy the court that the notice probably reached the first
respondent as a consumer
[17]
.
47.
In
Balkind
[18]
Alkema
J
interpreting Sebola Judgment made the following observations:
“
37.
The finding that
s.129
requires that the notice reached the consumer,
is expressed in various terms in the judgment. In paras 72 and 83 the
judgment states
that the section requires that the notice must be
“provided” to the consumer; in paras 75 and 85 it
states the
notice must “come to the attention” of
the consumer; in paras 86 and 87 it suggests that the notice must be
“delivered” to
the consumer; and in paras 74 and 77
it requires that the notice “reached” the consumer.
The various expressions,
coupled with the absence of any requirement
in the Act of proof of actual receipt of the notice by the consumer,
is in my respectful
view indicative of a broad requirement that the
consumer must be made aware of the notice, or that it came to his or
her attention.
(See para 77).
40.
The caveat to the requirement of allegations to establish
registered post and delivery to the correct post office,
is therefore
that if, notwithstanding these allegations, the notice did not come
to the attention of the consumer, then the credit
agreement may not
be enforced due to non-compliance with
s. 129
…”
48.
The applicant has not established that the notice has come to the
attention of the first
respondent as the consumer, therefore the
credit agreement cannot be enforced in those circumstances. Even if I
am wrong on the
finding I have made above, I still find that there
are massive disputes of fact around the issue of
Section 129
notice
purportedly addressed to the first respondent. The first respondent
refutes that notice in terms of
Section 129
came to his
attention
[19]
.
49.
In Zuma
[20]
the Supreme Court
of Appeal observed as follows:
“
26.
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the Plascon-Evans rule that where
in motion proceedings disputes of fact arise on the affidavits,
a
final order can be granted only if the facts averred in the
applicant's (Mr Zuma’s) affidavits, which have been admitted
by
the respondent (the NDPP), together with the facts alleged by the
latter, justify such order…”
50.
On the conspectus of all the facts of this matter the applicant has
not complied with the
provisions of
Section 129(1)
of NCA.
Section
129
(1) notice is a necessary notice to complete the cause of action
of the credit provider. It is a condition precedent to the
institution
of the legal proceedings. A cause of action can only be
complete and perfect once a requisite notice is issued prior to
the
commencement of proceedings
[21]
.
51.
This proposition necessarily supports a view that the applicant
prematurely commenced or
instituted the instant proceedings. There
was no reason at all for the applicant to refuse to withdraw the
application when it
was asked to do so, especially after the default
had been remedied. They should not have been instituted without
Section 129
notice preceding their commencement.
52.
With regard to executability of immovable properties,
Rule 46
provides as follows:
“
(a)
Subject to the provisions of
Rule 46A
, no writ of execution against
the immovable property of any judgment of debtor shall be issued
unless –
(i)
a return has
been made of any process issued against the movable property of the
judgment debtor from which it appears that the
said person has
insufficient movable property to satisfy the writ; or
(ii)
such immovable
property has been declared to be specially executable by the court or
whose judgment is granted by the registrar
under
Rule 31
(5)”
53.
The rule suggests that there must first be a judgment debtor, against
whom monetary judgment
has been granted; and that there must be a
“
nulla
bona
”
return rendered to show that the judgment debtor has insufficient
movable property before an order granting an immovable
property
executable is granted. Accordingly, judgment on executability of
immovable property cannot be granted simultaneously with
the monetary
judgment.
[22]
It cannot even
precede the granting of monetary judgment.
54.
The prerequisite for a “
nulla
bona
”
return is a clear indication of how important right to housing is in
our legal system.
[23]
Rule 46
and 46A of the Uniform Rules must be interpreted consistently with
the purpose of Section 26 of the Constitution. They
must be
interpreted restrictively with a view to protect people’s right
to adequate housing. In those circumstances respondents’
immovable properties cannot be declared executable.
Conclusion
55.
I have concluded that the default was remedied by the respondents
when the payment of R
500 000.00 was paid to the applicant. The
proceedings should have been withdrawn by the applicant at that stage
when asked
to do so by the respondents.
56.
Section 129 (1)(b) of NCA prohibits the institution of legal
proceedings to enforce the
credit agreement before first providing
notice to the consumer as contemplated in paragraph (a). I have found
that at the time
when the instant legal proceedings were commenced
with the requisite notice had not been provided to the respondents.
The current
proceedings were prematurely and improperly instituted.
57.
In the amalgam of the whole case applicant’s application cannot
succeed. I see no
reason why a general rule that costs should follow
the result cannot be applied.
ORDER
58.
In the result I make the following order:
58.1
The application is dismissed with costs.
Zono AJ
Acting
Judge of the High Court
APPEARANCES
:
For the Applicant
: Adv. Fourie
Instructed by :
VAN GREUNEN 7 ASSOCIATES INC
c/o
HUXTABLE ATTORNEYS
26 New
Street
MAKHANDA
Tel:
046 622 2692
EMAIL:
law1@huxatorneys.co.za
Ref:
O. Huxtable/cl/02V046001
For the
Respondent:
Adv. Somandi
Instructed by
:
MALUSI AND
COMPANY ATTORNEYS
c/o
TILANA MABECE
ATTORNEYS
39 New
Street
MAKHANDA
Email:
offic3@mtilaw.co.za
[1]
Rule
6 (1) of the Uniform Rules
[2]
Section
129
of the
National Credit Act 34 of 2005
[3]
A
credit provider undertakes to pay an amount or amounts, as
determined by the consumer from time to time to the consumer or on
behalf of, or at the direction of the consumer.
[4]
Expressio
est exclusio alterius – express mention of the
section 129
notice is an exclusion of installment amounts.
[5]
Cools
Ideas 1186 CC v Hubbard and another
2014 (4) SA 474
(CC) Para 28
[6]
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Developmnet Company
and Others
2014 (3) BCLR 265
(CC) Para 84- 86; North East Finance
(Pty) Ltd v Standard Bank of South Africa Ltd
2013 (5) SA 1
(SCA)
Para 24
[7]
Natal
Joint Municipality Pension Fund v Endumeni Municipality 2012(4) SA
593 at 603 Para 18
[8]
Nkata
v First Rand Bank Limited and others
2016 (4) SA 257
(CC) para
108-109
[9]
Nkata
(Supara) Para 100 and 105
[10]
Nkata
(Supra) Para 123
[11]
Section
129(4)
of
National Credit Act 34 of 2005
[12]
Express
mention of one thing is an exclusion of the other
[13]
Sebola
and Another v Standard Bank of South Africa and another
2012 (5) SA
142
(cc) para 74, 75, 76, 77, 83, 85, 86 and 87
[14]
Section
7
of Interpretation Act 33 of 1957
[15]
Section
9 of the Constitution
[16]
Sebola
v Standard Bank of South Africa Ltd and another
2012 (5) SA 142
(CC)
Para 74 and 75
[17]
Balkind
v ABSA Bank,
In
re
ABSA Bank Ltd v Ilifu Trading 172 (CC) and Others
2013 (2) SA 486
(ECG) Para 34-40
[18]
Balkind
v Absa Bank (Supra) Para 37 and 40
[19]
Plascon-
Evans Paints Ltd v Van Riebeek Paints (Pty) Ltd 1984 (3) SA 623 (A)
634-5
[20]
National
Director of Public Prosecutions v Zuma 2009(2) SA 277 (SCA) 28 Para
26
[21]
Herbstein
and Van Winsen: The Civil Practice of the High Court of South
Africa, 5
th
Edition, Volume 1 Pages 247, 249, 250, and 255
[22]
Changing
Tides 17 (Pty) Limited N.O. v Tyler and Another (2757/2020) [2024]
ZAECQBHC6 (30 January 2024) para 9-10.
[23]
Section
26 of the Constitution