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
(GAUTENG DIVISION, PRETORIA)
Case No: 16593/2022
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
In the rescission application between:
CHARL VILJOEN Applicant
[Identity Number: 9 […]]
and
FIRSTRAND BANK LIMITED T/A WESBANK Respondent
IN RE: The action between: FIRSTRAND BANK LIMITED T/A WESTBANK Plaintiff
and
CHARL VILJOEN Defendant
[Identity Number: 9 […]]
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Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date for the handing down of the
judgment shall be deemed to be 13 June 2025.
JUDGMENT
LG KILMARTIN, AJ:
A. INTRODUCTION
[1] This is an opposed application for the rescission of an order granted by
default by the Honourable Mr Justice Van der Westhuizen (“Van der Westhuizen J”)
on 11 October 2023 against Charl Viljoen (“the applicant”), the defendant in the main action, in favour of FirstRand Bank trading as Wesbank (“the respondent”), the plaintiff in the main action.
[2] The matter stems from a written alternatively electronic Instalment Sale
Agreement (hereinafter referred to as “the agreement”) in terms of which the respondent sold to the applicant a Pajero vehicle (“the vehicle”), details of which are
provided in Van der Westhuizen J’s order quoted below.
[3] The order of Van der Westhuizen J reads as follows:
“Having read the summons and other documents filed, judgment by default is
hereby granted against the defendant for:
1. Confirmation of C ancellation of the agreement;
2. That the Defendant be ordered to return the following motor vehicle to
the Plaintiff:
2011 MITSUBISHI PAJERO SPORT 3.2 DI -D GLS A/T
ENGINE NUMBER: 4[…]
CHASSIS NUMBER: M[…]
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3. An order authorising the Plaintiff to apply to the Co urt on the same
papers, supplemented insofar as may be necessary, for judgment in respect
of any damages and further expenses incurred by the Plaintiff in a repossession of the said vehicle, which amount can only be determined once the vehicle has been repossessed by the Plaintiff and has been sold; 4. Forfeiture of all monies paid to the Plaintiff by the Defendant; and
5. That the Defendant be ordered to pay R200.00 plus Sheriff fees. ”
[4] The application is brought in terms of Rule 31(2)(b), Rule 42(1)(a) and the
common law .
[5] According to the applicant, the main issues arising in this application are
whether:
[5.1] the applicant had, in terms of the agreement , noti fied the respondent
that his domicilium address had changed;
[5.2] even if the applicant’s domicilium address was not changed in terms
of the agreement, the summons initiating the main action was not properly
and effectively served on the applicant and the sheriff’s return of service is
defective;
[5.3] the section 129 notice in terms of the National Credit Act, 34 of 2005
as amended (“the NCA”) , was not properly delivered in accordance with
established authority and, as a result, the cause of action of the respondent was incomplete and the order was thus erroneously sought and granted; and
[5.4] insofar as the Court is of the view that the applicant ought to have
sought condonation for bringing the rescission application several months
after the order was granted by Van der Westhuizen J, condonation ought to be granted.
[6] During argument, focus was placed on the failure of the respondent to
properly deliver the section 129 notice and what the impact of this was. In essence,
the questions which arise are: (i) Where a section 129 notice was not properly delivered and judgment by default is granted, was the judgment erroneously sought and granted?; and (ii) Whether the Court has a choice to rescind the judgment in
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terms of Rule 42(1)(a) when the common cause facts demonstrate that the section
129 notice was not properly delivered.
[7] Before dealing with the relevant legal provisions and authorities and the
merits of this matter, I deem it necessary to set out the relevant background facts as this will set the fundamental backdrop against which this dispute must be adjudicated.
B. RELEVANT BACKGROUND FACTS
[8] On or about 15 June 2016 and at or near Pretoria, the respondent (duly
represented by an authorised employee) and the applicant, entered into the agreement .
[9] The relevant express, alternatively implied, further alternatively tacit terms of
the agreement were inter alia as follows:
[9.1] the instalments payable were to be paid in 72 consecutive monthly
instalments of R5,541.82, with the last payment to be made on 1 July 2022;
[9.2] the applicant would pay the purchase amount set out in the
agreement , together with interest at a variable interest rate of 13.15% per
annum;
[9.3] the respondent w ould remain the legal owner and titleholder of the
vehicle until the applicant has paid all the amounts due under the agreement;
[9.4] ownership in and to the vehicle w ould pass to the applicant when the
applicant paid the respondent all amounts due under the agreement in full;
[9.5] should the applicant have failed and/or neglect ed to comply with his
obligations in terms of the agreement, or have failed to pay any amounts due
to the respondent, or had made misleading statements to the respondent before signing the agreement, or the applicant had allowed any judgment that was taken against him to remain unpaid for more than 7 days, then the
respondent w ould have the right , without effecting any of his other rights, to:
[9.5.1] claim from the applicant the amount which the respondent would
have been paid had the applicant fulfilled his obligations. To this end the
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respondent would be entitled to cancel the agreement, take the vehicle back,
sell the vehicle, keep all payments the applicant has made and claim the balance (if any) from the applicant as damages; alternatively
[9.5.2] claim immediate payment of the full value of the amount that the
respondent could claim in terms of the agreement as if it was immediately due by the applicant;
[9.6] the applicant agreed that the physical address that he provided on
the Quotation/ Costs o f credit documents was the address that the applicant
has selected as the address where the respondent was obliged to send all legal notices . The domicilium address recorded in the Quotation / Cost of
credit document s was 6 Valley Road, Mnandi, 0157 (“the domicilium
address”). Mnandi is in Centurion;
[9.7] the applicant agreed to notify the respondent in writing, by hand or
registered mail of any change to either of the applicant’s addresses or the applicant’s email address, telephone, or cellular numbers and if the applicant failed to notify the respondent of a change of address the respondent could use the last known address of the applicant; and
[9.8] the applicant agreed that he will be deemed to have received a
notice or letter 5 (five) business days after the posting of a letter to either of the addresses provided by the applicant.
[10] From the respondent’s database and the applicant’s updated bank
statements, it appears that:
[10.1] the applicant defaulted in his obligations to make payment of the
monthly instalments in terms of the agreement;
[10.2] the applicant periodically fell in arrears and failed to keep the
account up to date;
[10.3] the applicant fell into arrears during February 2021;
[10.4] the respondent engaged with the applicant with regards to arrears
and possible payment arrangements;
[10.5] on 29 July 2021, the respondent caused an SMS to be sent to the
applicant informing the applicant that his account had been handed over to an external agent and requested that payment be made on his account;
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[10.6] on 11 August 2021, an agent of the respondent made telephonic
contact with the applicant regarding the arrears on his account whereafter he
allegedly abruptly dropped the call and refused and/or failed to answer the agent’s call in an attempt to continue the discussion;
[10.7] on 24 November 2021, a field agent of the respondent attended the
premises of the applicant and stated the reasons for the visit in response to which the applicant became defensive and stated that the payment would be made once he regained employment and drove off;
[10.8] on 28 December 2021, the respondent caused an email to be sent to
the applicant informing him that his account was in arrears in the amount of R76,029.37 and all attempts made to contact him had been unsuccessful, ultimately resulting in the respondent instituting legal action.
[11] The agreement is governed by the provisions of the N CA.
[12] The respondent confirmed under oath that a notice in terms of section 129,
read with section 130 of the NCA was, “ delivered to the applicant via registered post
as well as by way of e- mail to v[..] , being the chosen e- mail address ”.
[13] Copies of the notice in terms of section 129, together with the covering email
dated 1 March 2022, and post office “track and trace report ” were attached to the
answering affidavit. As is explain ed below, these documents demonstrate that there
was, in fact, no proper service of the section 129 notice and there is no evidence that
email to the applicant was received or delivered. There is also no email address
recorded on the quotation in the place provided.
[14] In paragraphs 9.1 and 9.2 of the particulars of claim, the following is alleged:
“9.1 A notice in terms of section 129(1)(a) of the National Credit Act, 34
of 2005, has been delivered by the Plaintiff to the consumer, being the Defendant, by registered post to the Defendant’s chosen address. The notice has been delivered to the post off ice responsible for delivering of post to the
Defendant’s address. The post office would, in the normal course, have secured delivery of a registered item notification slip, informing the Defendant
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that a registered article was available for collection. The Plaintiff believes that
the registered item, notification of the arrival slip reached the Defendant and that the Defendant, as a reasonable entity, would have retrieved the notice from the post office. The Plaintiff is not aware of any circumstance to show the contrary. A copy of the notice in terms of Section 129, proof of postage and the “track and trace” report from the website of the post office is attached hereto and marked as Annexures “E” and “F” .
9.2. A period of ten (10) days have elapsed since the abovementioned
Notice was delivered to the Defendant, and the Defendant did not pay the full outstanding amount or made suitable payment arrangements to date.” (sic).
[15] The summons was issued on 17 March 2022 but the post office tracking
record confirming compliance with section 129 refers to the letter being “ in transit ”
and having been accepted at Garsfontein post office on 26 February 2022 (which is
the wrong post office as it should have been delivered to the Centurion post office) .
[16] The allegations made in paragraphs 9.1 and 9.2 of the summons are clearly
incorrect .
[17] The respondent attached an updated “ track and trace” report to the
answering affidavit which indicates that the notice was dispatched on 7 July 2022 from Tshwane Mail Centre and was delivered to one “K Sebothoma” on 20 July 2022
and not the applicant .
[18] According to the respondent, the summons was duly served on the applicant
at his chosen domicilium citandi et executandi on 4 May 2022 at 6 Valley Road,
Mnandi, 0157. The return of service indicates that the summons was served at “ the
registered address ” (which is clearly an error) by affixing it to the gate.
[19] on 28 June 2022, the respondent applied for default judgment and
subsequently the order was granted by Van der Westhuizen J on 10 October 2023.
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[20] The applicant alleges that he was first made aware of the order of Van der
Westhuizen J during or about November 2023.
[21] As a result of the granting of the default judgment order, the vehicle was
repossessed in terms of a Warrant of Execution on 19 January 2024 by the Sheriff ,
Sandton North.
[22] According to the respondent, on 22 January 2024, it caused a notice in
terms of section 127 of the NCA to be sent to the applicant informing him that the vehicle had been valued and that he had the right to object to the valuation and to obtain a third- party valuation.
[23] The respondent also alleges that the applicant failed to respond to the notice
and failed to object to the valuation and as a result the vehicle was registered and sold at an auction on behalf of the respondent on 22 February 2024 for an amount of
R105 800.00.
[24] The respondent states that, s ubsequent to the above, on 29 February 2024,
it caused a further notice in terms of section 127 of the NCA to be sent to the
applicant informing him that the vehicle was sold for an amount of R105,800.00 which had been credited to his account.
[25] The applicant claims he never received any notices and that the only
communications he received were sms’s, one of which had no contact details of the person he was required to contact and one confirming his vehicle had been sold.
[26] This rescission application was served on the respondent’s attorney on 8
April 2024, i.e. over 4 months from when the applicant alleges he became aware of
the order.
C. RELEVANT LEGAL PROVISIONS AND AUTHORITIES
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[27] Rules 31(2) (a) and (b) fall under the heading “ Judgment on confession and
by default and rescission of judgments ” and provide as follows:
“(2)(a) Whenever in an action the claim or, if there is more than one claim,
any of the claims is not for a debt or liquidated demand and a defendant is in
default of delivery of notice of intention to defend or of a plea, the plaintiff may set the action down as provided in subrule (4) for default judgment and the court may, after hearing evidence, grant judgment against the defendant or make such order as it deems fit.
(b) A defendant may within 20 days after acquiring knowledge of such
judgment apply to court upon notice to the plaintiff to set aside such judgment and the court may, upon good cause shown, set aside the default judgment on such terms as it deems fit.”
[28] Rule 42 is titled “ Variation and rescission of orders ” and Rules 42(1)(a),
42(2) and 42(3) provide as follows:
“(1) The court may, in addition to any other powers it may have, mero
motu or upon the application of any party affected, rescind or vary –
(a) an order or judgment erroneously sought or erroneously
granted in the absence of any party affected thereby;
...
(2) Any party desiring any relief under this rule shall make application
therefore upon notice to all parties whose interest may be affected by any variation sought.
(3) The court shall not make any order rescinding or varying any order
or judgment unless satisfied that all parties whose interests may be affected have notice of the order proposed. ”
[29] In order to succeed with an application based on Rule 42(1)(a), there are 3
requirements that must be met, namely:
[29.1] The judgment must have been erroneously sought or erroneously
granted;
[29.2] The judgment must have been granted in the absence of the
applicant; and
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[29.3] The applicant’s rights or interests must be affected by the judgment.
[30] Once the three requirements of Rule 42(1)(a) are established, an applicant
would ordinarily be entitled to succeed and would not be required to show good cause in addition thereto.
1
[31] The Constitutional Court has confirmed that Uniform Rule 42 is an
empowering provision for the Court to rescind a judgment. In Zuma v Secretary of
the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State and Others ,
2 the Constitutional
Court stated the following:
“It should be pointed out that once an applicant has met the requirements for
rescission, a court is merely endowed with the discretion to rescind its order.
The precise wording of Rule 42, after all, postulates that a court ‘may’, not ‘must’, rescind or vary its order – the rule is merely an ‘empowering section
and does not compel the court’ to set aside or rescind anything. This
discretion must be exercised judicially. ”
[32] As far as rescission under the common law is concerned, the requirements
which need to be met were described in Hetty v Law Society, Transvaal .
3 In this
regard, there are two requirements that need to be met, namely:
[32.1] The applicant must furnish a reasonable and satisfactory explanation
for its default; and
[32.2] It must be shown that on the merits it has a bona fide defence which
prima facie carries some prospects of success.
[33] A judgment is erroneously granted if there existed, at the time of its issue, a
fact of which the Court was unaware, which would have precluded the granting of the
judgment, and which would have induced the Court, if aware of it, not to grant the
judgment.4
1 Hard Road (Pty) Ltd v Oribi Motors (Pty) Ltd 1977 (2) SA 576 (W) at 578 (G).
2 [2021] ZACC 28, para [53].
3 1985 (2) SA 756 (A) at 765 A -E.
4 Occupiers, Berea v De Wet NO 2017 (5) SA 346 (CC) at 366 E – 367 A.
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[34] An order or judgment was erroneously granted where:
[34.1] There was an irregularity in the proceedings;5 and
[34.2] If it was not legally competent for the Court to have made such an
order.6
[35] Section 129 is titled “ Required procedures before debt enforcement ” and
appears in Part C of the NCA. Debt enforcement by repossession or judgment are
dealt with in sections 129 to 133. [36] Section 129 of the NCA reads 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 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.
(2) Subsection (1) does not apply to a credit agreement that is subject to
a debt restructuring order, or to proceedings in a court that could result in such an order.
(3) Subject to subsection (4), a consumer may at any time before the
credit provider has cancelled the agreement, remedy a default in such credit agreement by paying to the credit provider all amounts that are overdue,
5 De Wet v Western Bank Ltd 1979 (2) SA 1031 (A) at 1038 D.
6 Athmaram v Singh 1989 (3) SA 953 (D) at 956 D and 956 I.
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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.
(4) A credit provider may not reinstate or revive a credit agreement
after-
(a) the sale of any 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.
(5) The notice contemplated in subsection (1)(a) must be delivered
to the consumer -
(a) by registered mail; or
(b) to an adult person at the location designated by the consumer.
(6) The consumer must in writing indicate the preferred manner of
delivery contemplated in subsection (5).
(7) Proof of delivery contemplated in subsection (5) is satisfied by-
(a) written confirmation by the postal service or its authorised
agent, of delivery to the relevant post office or postal agency; or
(b) the signature or identifying mark of the recipient contemplated
in subsection (5) (b).”
(My emphasis).
[37] The remedies available to the applicant in terms of section 129(1)(a) of the
NCA are:
[37.1] The applicant may refer the credit agreement to a debt counsellor,
alternatively dispute resolution agent, consumer court of ombud with
jurisdiction, with the intent that the parties resolve any dispute under the credit
agreement; or
[37.2] Develop and agree on a plan to bring payments under the credit
agreement up to date.
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[38] In Amardi en and Others v Registrar of Deeds and Others7(“Armadien”) it
was confirmed that the purposes of section 129 of the NCA are three- fold, namely:
“[56] The purposes of s 129 of the NCA are as follows:
(a) It brings to the attention of the consumer the default status of her credit
agreement.
(b) It provides the consumer with an opportunity to rectify the default
status of the credit agreement in order to avoid legal action being instituted on
the credit agreement or to regain possession of the asset subject to the credit agreement.
(c) It is the only gateway for a credit provider to be able to institute legal
action against a consumer who is in default under a credit agreement.”
[39] In Amardi en
8 it was also stated that:
“[58] There are two statutory conditions which must be met before the
credit provider may institute litigation under s 129. In peremptory terms, the
section declares that legal proceedings to enforce the agreement may not commence before (a) providing notice to the consumer; and (b) meeting
further requirements set out in s 130.
[59] The reference to s 130 reveals a strong link between the two
provisions hence they are required to be read together. When a credit provider seeks to enforce the agreement by means of litigation, it must first show compliance with s 130, which, by extension, refers back to s 129. The
application of these sections is triggered by the consumer's failure to repay the loan. These sections suspend the credit provider's rights under the credit
agreement until certain steps have been taken. The credit provider is not entitled to exercise its rights immediately under the agreement. It is first required to notify the consumer of the specific default and demand that the
arrears be paid. If the consumer pays up the arrears, then the dispute is settled.
… [65] Since the cancellation of the instalment sale agreements and the
cancellation of the recordals are invalid, it follows that the instalment sale
7 2019 (3) SA 341 (CC), at para [56].
8 2019 (3) SA 341 (CC), at para s [58], [59] and [65] .
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agreements are extant and the applicants have payment obligations pursuant
thereto, arising from the date of recordal. The fifth respondent will have to
calculate the amounts and inform the applicants accordingly. ”
[40] The respondent’s counsel referred me to section 130 of the NCA and, in
particular , section 130(4)(b) thereof which deals with where there has been non-
compliance with section 129. Section 130 provides , inter alia , as follows:
“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(10), 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.
(2) In addition to the circumstances contemplated in subsection (1), in
the case of an instalment agreement, secured loan, or lease, a credit provider may approach the court for an order enforcing the remaining obligations of a consumer under a credit agreement at any time if -
(a) all relevant property has been sold pursuant to-
(i) an attachment order; or
(ii) surrender of property in terms of section 127; and
(b) the net proceeds of sale were insufficient to discharge all the
consumer's financial obligations under the agreement.
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(3) Despite any provision of law or contract to the contrary, in any
proceedings commenced in a court in respect of a credit agreement to
which this Act applies, the court may determine the matter only if the court is satisfied that -
(a) in the case of proceedings to which sections 127, 129 or 131
apply, the procedures required by those sections have been complied with;
(b) there is no matter arising under that credit agreement, and pending
before the Tribunal, that could result in an order affecting the issues to be determined by the court; and (c) that the credit provider has not approached the court -
(i) during the time that the matter was before a debt counsellor,
alternative dispute resolution agent, consumer court or the ombud with jurisdiction; or
(ii) despite the consumer having-
(aa) surrendered property to the credit provider, and before that property has
been sold;
(bb) agreed to a proposal made in terms of section 129 (1)(a) and acted in
good faith in fulfilment of that agreement;
(cc) complied with an agreed plan as contemplated in section 129(1)(a); or
(dd) brought the payments under the credit agreement up to date, as
contemplated in section 129(1)(a).
(4) In any proceedings contemplated in this section, if the court
determines that -
(a) the credit agreement was reckless as described in section 80, the
court must make an order contemplated in section 83;
(b) the credit provider has not complied with the relevant
provisions of this Act, as contemplated in subsection (3)(a), or has approached the court in circumstances contemplated in subsection (3)(c) the court must -
(i) adjourn the matter before it ; and
(ii) make an appropriate order setting out the steps the credit
provider must complete before the matter may be resumed;
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(c) the credit agreement is subject to a pending debt review in terms of
Part D of Chapter 4, the court may -
(i) adjourn the matter, pending a final determination of the debt review
proceedings;
(ii) order the debt counsellor to report directly to the court, and
thereafter make an order contemplated in section 85 (b); or
(iii) if the credit agreement is the only credit agreement to which the
consumer is a party, order the debt counsellor to discontinue the debt review
proceedings, and make an order contemplated in section 85 (b);
(d) there is a matter pending before the Tribunal, as contemplated in
subsection (3) (b), the court may -
(i) adjourn the matter before it, pending a determination of the
proceedings before the Tribunal; or
(ii) order the Tribunal to adjourn the proceedings before it, and refer the
matter to the court for determination; or
(e) the credit agreement is either suspended or subject to a debt re-
arrangement order or agreement, and the consumer has complied with that
order or agreement, the court must dismiss the matter. ”
(Emphasis added).
[41] The law does not require that the section 129 notice must come to the
consumer’s knowledge but it also does not permit the credit provider to simply dispatch it.
[42] In Sebola and Another v Standard Bank of South Africa and Another
9
Standard Bank had sent the notice but it was delivered to the wrong post office, as in casu , Cameron J upheld the appeal against the refusal of the rescission and
explained that the NCA obliged Standard Bank to show that the notice had reached the correct post office. The Constitutional Court confirmed that the Court ought to
have adjourned the proceedings to allow Standard Bank to rectify its failure to comply with section 129 of the NCA. The Court therefore granted the rescission.
9 2012 (5) SA 142 (CC), para [81].
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[43] I n Kubyana v Standard Bank of South Africa Limited10 (“Kubyana”) it was
confirmed that a credit provider must at l east establish that the section 129 notice
was delivered by registered post to the post office that would send a delivery notice
to the consumer. The Constitutional Court stated the following in this regard:11
“[54] The Act prescribes obligations that credit providers must
discharge in order to bring s 129 notices to the attention of consumers. When
delivery occurs through the postal service, proof that these obligations have been discharged entails proof that —
(a) the s 129 notice was sent via registered mail and was sent to the correct
branch of the Post Office, in accordance with the postal address nominated by the consumer. This may be deduced from a track and trace report and the
terms of the relevant credit agreement;
(b) the Post Office issued a notification to the consumer that a registered
item was available for her collection;
(c) the Post Office's notification reached the consumer. This may be inferred
from the fact that the Post Office sent the notification to the F consumer's
correct postal address, which inference may be rebutted by an indication to the contrary as set out in [52] above; and (d) a reasonable consumer would have collected the s 129 notice and
engaged with its contents. This may be inferred if the credit provider has proven (a) – (c), which inference may, again, be rebutted by a G contrary
indication: an explanation of why, in the circumstances, the notice would not have come to the attention of a reasonable consumer. ”
[44] In Blue Chip 2 (Pty) Ltd t/a Blue Chip 49 v Ryneveldt and Others (National
Credit Regulator as amicus curiae) ”
12 (“Blue Chip ”), the SCA stated that:
“[20] In order to disclose a cause of action to enforce a claim emanating
B from a default of a credit agreement, an averment of compliance with s 129
must be contained in the summons and proved. Delivery of a s 129 notice forms part of the cause of action. It is an essential component of a plaintiff's
10 2014 (3) SA 56 (CC), para [54].
11 Kubyana, para [ 54].
12 2016 (6) SA 102 (SCA), para [20].
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cause of action. It must occur before a cause of action can be said to have
arisen. Absent compliance therewith, there would be no cause of action. ”
[45] What the SCA said in Blue Chip is in line with section 130(4) of the NCA as
the Court must adjourn the proceedings where there has been non- compliance with
section 129 and, hence, may not grant judgment.
[46] In Kgomo and Another v Standard Bank of South Africa and Others
13
(“Kgomo”) Dodson AJ held that the failure to deliver a section 129(1) notice was not
merely a dilatory defence and was a required procedure. In the judgment, the
following was stated in this regard:14
“[55] The bank, as plaintiff, pleaded delivery of the notice to the applicants
as defendants in its particulars of claim. Yet it is clear that its pleading was
erroneous and that there was no such delivery. In terms of s 129(1)(b), the
first respondent was precluded from commencing any legal proceedings
without delivering a s 129(1) notice beforehand. In terms of s 130(1)(a), 10
business days had to have elapsed after any notice, before legal proceedings
were commenced. That too was not complied with. The judgment was therefore erroneously sought.
[56] The flawed s 129(1) notice, reflecting the incorrect address for
the applicants, was an annexure to the particulars of claim. That the addres s
was incorrect was apparent by comparing it with the correct address reflected
in the particulars of claim. That address reflected a street number that did not
coincide with the erf number. The error was thus apparent on the record when
default judgment was granted. In any event, it is not necessary for compliance
with the requirements for rescission in rule 42(1)(a) that the error be apparent
on the record. In those circumstances the court was required to proceed in
terms of s 130(4)(b)(i) and (ii) of the NCA by adjourning the proceedings and
directing what steps the bank must take before the proceedings were
resumed. It did not do so. The judgment was thus erroneously granted within
the meaning of rule 42(1)(a).
13 2016 (2) SA 184 (GP).
14 Kgomo, paras [55] to [58].
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[57] The judgment was granted in the absence of the applicants.
[58] On that basis the applicants are entitled to rescission of the
judgment granted against them. ”
D. DISCUSSION OF THE MERITS
[47] In the respondent’s supplementary heads of argument and, in particular,
paragraph 2.1 thereof , the following was stated:
“2.1 It is conceded that the track and trace does not specifically reflect
that a first notification was sent to the applicant, although it is disputed by respondent that the applicant did not receive knowledge of the s 129 notice by way of email. In terms of the provisions of the National Credit Act, 34 of 2005,
the appropriate steps to be taken is to re- serve the s 129 notice in terms of s
130(4)(b). ”
[48] The difficulty I have with this argument is that the Court is already functus
officio in that it has made a decision in the matter. The matter is not at this stage
where orders can be made in terms of section 130(4)(b) of the NCA .
[49] The reference to ABSA Limited Bank v Peterson
15 is distinguishable as in
that case the notice was returned unclaimed after being held a few days at the correct post office. In this matter the letter was not even at the correct post office.
[50] In ABSA Bank Limited (Pty) Ltd v Raletabo
16 the Court was also asked to
grant an order in terms of section 130(4)(b) after no delivery of the section 129
notice. The Court determined that it cannot adjourn that which has not yet
commenced and refused to adjourn the proceedings in terms of section 130(4).
[51] In the light of the above facts and authorities, I am of the view that the
section 129 notice was not properly delivered.
15 2013 (1) SA 481 (WCC).
16 (2021/35830) [2023] ZAGPJHC 278 (Judgment delivered on 8 March 2023).
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[52] No legal proceedings could commence without the service of the section 129
notice on the applicant. Thus the request to adjourn what does not exist and should
have not been initiated is not possible. Therefore, the proceedings cannot be
adjourned in terms of section 130(4)(b) since they commenced before the service of
the section 129 notice.
[53] It is most unfortunate that, in these circumstances, the applicant’s vehicle
was sold as there was blatant non- compliance with the NCA. The applicant may
have a claim in this regard but his attorneys can advise him of remedies possibly available to him in law.
[54] Insofar as costs are concerned, I am of the view that the incorrect allegations
made in the particulars of claim (which are clearly not supported by the attachments thereto) warrant costs on a punitive scale.
ORDER
In the circumstances, I make the following order :
1. The judgment of Vander Westhuizen J, granted on 11 October 2023, is
hereby rescinded; and 2. The respondent is ordered to pay the costs of this application on the
attorney -and-client scale.
LG KILMARTIN
ACTING JUDGE OF THE HIGH COURT
PRETORIA
Dates of hearing: 19 March 2025
Date of judgment: 13 June 2025
For the applicant : Adv S Venter
Instructed by: Elliott Attorneys Inc.
For the Defendant: Adv E Muller
Instructed by: Fabricius Attorneys