(1) REPORT ABLE: NO
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(2) OF INTEREST TO OTHER JUDGES: NO
(3) RE V ISED: NO
20 August 2025
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Case No : 001998/2022
In the matter between:
NICOLE ERASMUS APPLICANT
and
BMW FINANCIAL SERVICES (SOUTH AFRICA )
(PTY ) LTD
t/a ALPHERA FINANCIAL SERVICES RESPONDENT
JUDGMENT
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GOUWS, AJ
INTRODUCTION
[1] The applicant seeks the rescission of a default judgment granted against her on
27 November 2023 where the respondent obtained an order for (i) confirmation
of cancellation of an instalment sale agreement and the return of a 2015 Jeep
Wrangler Unlimited 3. 6 V6 AT (“the vehicle”). The order included an order for
interest and costs, with a provision for a damages claim that was postponed sine
die.
[2] The applicant, in the replying affidavit, indicates that the rescission application is
brought in terms of Rule 31(2)(b), alternatively Rule 42, and further alternatively
the common law.
[3] The applicant contend s that it was presented with 2 refinancing options by the
respondent during 2021. It elected the option reflecting the lower repayment
amount of R5 523.98, signed this instalment sale agreement, and proceeded to
authorise the respondent to deduct this amount from its bank account on a
monthly basis.
[4] The applicant contends in the founding papers that it had made a multitude of
payments since commencement of the credit agreement , that have been
disregarded by the respondent.
[5] In contradistinction, the respondent contends that there was no option between 2
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agreements, that the applicant entered into an instalment sale agreement that
carried a monthly instalment of R7524.27, and the applicant had failed to pay
almost every instalment since inception up to date of cancellation.
[6] In the answering affidavit, t he respondent provided the court with a payment
history, alleging that only three payments had been made in the account since its
inception: 1 September 2021 - R7532.98; 1 August 2022 - R80.00; 1 September
2022- R7881.42. In dealing with the applicant’s version of events, the respondent
went so far as to accuse the applicant of fabricating the payment history and the
bank statement that the applicant relied upon.
[7] In the replying affidavit the applicant however concedes that she might have
inadvertently signed the incorrect agreement reflecting the higher instalment
(despite allegedly only paying the lower monthly instalment in sporadically
varying amounts) . She doesn’t explain how this error might have come about,
nor is the assertion made that this agreement that was incorrectly signed does
not bind the applicant. The point is not developed and the applicant does not
assert any defined legal conclusion in this regard.
[8] Against the backdrop of allegations of administrative shortcomings with the
respondent, confusion relating to instalments due, and a multitude of alleged
engagements with the respondent, I find no allegation in the affidavits filed of
record that the applicant was not in arrears with the instalments due when the
agreement was ultimately terminated. The closest to such an allegation is the
repeated contention that the applicant authorised the monthly debit order, and
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that the respondent was obligated to deduct the correct amount due each month.
[9] During argument, and at the outset of the applicant’s address, her legal
representative indicated that it was only persisting, as a ground for rescission,
with the proposition that there had been non -compliance with the provisions of
s129 of the NCA , in that the s129 notice never came to the attention of the
applicant.
[10] What follows is accordingly a consideration of whether the respondent complied
with the provisions of s129 of the NCA. In addition, regard must be had to the
implications of such a finding, when considered against the backdrop of the
available mechanisms t hat may be employed in order to obtain a rescission of
judgment.
SECTION 129(1)(a) OF THE NCA
[11] Section 129(1)(a) of the NCA permits a credit provider to draw a consumer’s
default to their attention 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”. Under s 129(1)(b)(i), a credit provider “may not
commence any legal proceeding s to enforce the agreement before - (i) first
providing notice to the consumer, as contemplated in paragraph (a)”.
[12] The applicant contends never having received this s129(1)(a) notice.
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[13] The applicant does not deny that the section 129 notice was sent to her chosen
domicilium citandi et executandi address, but contends that she did not receive
the notice to collect the registered item from the post office. The applicant similarly
denies having received the summons, which was also served on this domicilium
address.
[14] The summons that was issued and served in the matter, and which served before
the court that granted the default judgment, contained proof of despatch to the
Pyramid post office (the relevant post office) , and contained a track and trace
report that confirmed the first notification to the consumer on 11 January 2022.
[15] In the replying affidavit, the applicant provides additional tracking information that
purports to illustrate that the notice was at the post office for approximately one
day before it was sent to the Tshwane Mail Centre, and ultimately to the Wits Mail
Centre. The applicant accordingly contends that the notice was at the correct post
office for only approximately a day before it was again despatched elsewhere.
This, so the argument goes, did not afford her a reasonable opportunity to collect
the notice.
[16] The applicant, again in reply, also contends that the Pyramid post office had been
dysfunctional since the advent of COVID-19, and that it was not despatching
notices to houses since the lockdown restrictions were lifted. This was confirmed
by an e-mail from a counsellor of the City of Tshwane, that was annexed to the
replying affidavit. The e-mail was not under oath, nor did it disclose the source of
the information, save for a reference to a google search that indicated that the
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post office was listed as “closed”.
[17] The law does not require that the s129 notice come to the consumer’s knowledge.
But it also does not permit the credit provider to merely dispatch the notice.1 What
is required of credit providers was originally laid down by the Constitutional Court
in Sebola2 and Kubyana.3
[18] In Sebola, the constitutional court held that:
“The credit provider’s summons or particulars of claim should allege that the notice was
delivered to the relevant post office and that the post office would, in the normal course,
have secured delivery of a registered item notification slip, informing the consumer that
a registered article was available for collection. Coupled with proof that the notice was
delivered to the correct post office, it may reasonably be assumed in the absence of
contrary indication, and the credit provider may credibly aver, that notification of its arrival
reach the consumer and that a reasonable consumer would have ensured retrieval of
the item from the post office”.4
[19] Kubyana made it clear that a credit provider must at least establish that the s 129
notice was delivered by registered post to the post office that would send a
delivery notice to the consumer.5
[20] S129 was subsequently amended to address Sebola. The relevant provisions
read:
(5) The notice contemplated in subsection (1) (a) must be delivered to the
1 Williams v Shackleton Credit Management 2024 (3) SA 234 (WCC) at [38].
2 Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC).
3 Kubyana v Standard Bank of South Africa Ltd 2014 (3) SA 56 (CC).
4 At [77].
5 Kubyana at [39].
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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).
DID THE RESPONDENT COMPLY WITH THE PRESCRIPTS OF S129?
[21] It has now become settled law that a credit provider is not required to provide
proof that the statutory notice in fact came to the knowledge of the consumer.
Such a stance would perforce impose an undue burden on a credit provider. The
import of s129(7) is plain. Proof of delivery of the statutory notice is satisfied by a
written confirmation by the postal service of delivery to the relevant post office.
[22] Although the applicant contends not having received the s129 notice, it is not
denied by the applicant that the post office where the s129 notice was sent was
the correct post office.
[23] From the track and trace report, which was annexed to the summons, it appears
that the section 129 notice was delivered at the post office on 20 December 2021,
and a first notification to collect the registered item was sent to the respondent on
11 January 2022.
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[24] The applicant claims never having received this notification.
[25] In accordance with section 130 of the NCA, the applicant was in default under the
agreement for at least 20 business days and at least 10 business days had
elapsed since the respondent delivered the notice to the applicant on 11 January
2022, which was prior to the issuing of the summons.
[26] When the track and trace report that was annexed to the summons is considered
in isolation, the respondent appears to have complied with the prescripts of the
NCA.
[27] The question that requires further consideration, is the impact of the applicant’s
evidence in reply, that the full track and trace report in fact indicates that the notice
was available for collection at the post office for only a single day before it was
despatched elsewhere, and that the post office in question had in any event not
been delivering parcels to houses since the COVID-19 pandemic.
[28] It is apposite to first deal with the second of these allegations. The applicant relied
on an e-mail by a certain Mr. Mark Surgeon, alleged to be a Tshwane councillor.
The e -mail conveys that the Pyramid post office never continued with house
deliveries after the lifting of the COVID-19 restrictions, and that a google search
indicates that it is permanently closed. The information conveyed in the e-mail by
Mr. Surgeon has not been confirmed under oath . The source of the information
(and whether Mr. Surgeon has personal knowledge of the facts stated) also
remains unknown. There is also no reason stated why Mr. Surgeon could not
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depose to an affidavit. This evidence amounts to inadmissible hearsay. I do not
take this evidence into account in what follows.
[29] The remaining issue, namely that the section 129 notice was only available for
collection for one day, may conveniently be addressed on 2 fronts.
[30] First, the applicant’s case was that it never received the first notification from the
post office, and by extension that it never received the s129 notice. It was simply
never the case put forward by the applicant in the founding papers that the period
that the notice would be available at the post office was unreasonably short. No
case has been advanced that a longer period would somehow have resulted in
the notice, in fact, coming to the attention of the applicant before judgment.
[31] The applicant alleges never having received the first notification at their
domicilium address; accordingly, they would not have known of the notice’s
availability even had it remained at the post office longer. The real difficulty is not
the brevity of the availability period, but the absence of actual knowledge of the
notification itself. The relatively short period that the parcel lay available for
collection is immaterial against this background. This essentially nullifies the point
raised.
[32] On the second front, it seems to me that this aspect may also adequately be
addressed through considering the proper attribution of risk in cases where a
consumer does not in fact receive a notice that has otherwise been duly
dispatched.
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[33] Our courts have long recognised that the National Credit Act does not guarantee
actual receipt of the notice, but rather requires the credit provider to take steps
reasonably designed to bring it to the attention of the consumer. This foundational
principle is manifested clearly in both Sebola and Kubyana.
[34] Once the credit provider shows that the notice was correctly sent to the
consumer’s chosen domicilium address and that the post office issued a
notification, the risk that the consumer does not become aware of the notice
thereafter lies with the consumer.
[35] This principle was explicitly affirmed in Binneman v Standard Bank of South
Africa Ltd 2012 (5) SA 637 (WCC) , where the Court held that if the minimum
requirements for dispatch are met, the consumer bears the risk of non -receipt. I
can do no better than to restate relevant excerpts from the dictum of Griesel, J:
“[3] In Munien v BMW Financial Services, the interpretation of the provisions of ss 129
and 130 of the Act were exhaustively dealt with by Wa llis J (as he then was). He came
to the conclusion that 'provided the credit provider delivered the notice in the manner
chosen by the consumer in the agreement and such manner was one specified in s
65(2)(a), it is irrelevant whether the notice in fact came to the attention of the consumer.
As the consumer has the right to choose the manner in which notice is to be given, it is
for the consumer to ensure that the method chosen will be one that is reasonably certain
to bring any notice to his or her attention'.
…
[6] I do not read the judgment of the majority in Sebola as having overruled these
principles. What it did do, was to clarify that 'despatch' per se is insufficient; there must,
in addition, be proof that the notice reached the appropriate post office: 'Where the credit
provider posts the notice, proof of registered despatch to the address of the consumer,
together with proof that the notice reached the appropriate post office for delivery to the
together with proof that the notice reached the appropriate post office for delivery to the
consumer, will in the absence of contrary indication constitute sufficient proof of delivery.'
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[7] It is not immediately apparent what exactly is meant by the phrase 'in the absence of
contrary indication' in the present context. However, it is not necessary for purposes of
this judgment to speculate as to its meaning. In the present case the defendant, in terms
of clause 11 of the mortgage bond, chose the mortgaged property as the domicilium
citandi et executandi and agreed that '. . . any notice or other document or legal process
to be given, sent or delivered under this bond shall be regarded as sufficiently given, sent
or delivered to the Mortgagor if delivered at that mortgaged property or sent by prepaid
registered post to that mortgaged property, in which latter case it shall be presumed to
have been received on the third day following the date of posting unless the contrary is
proved'.
[8] Here, the available evidence shows that the letter in terms of s 129 was sent by
registered post to the mortgaged property and that it actually reached the appropriate
post office, namely Kraaifontein. In accordance with settled authority, I accordingly hold
that the plaintiff has duly provided notice to the consumer as required by s 129(1) of the
Act. The risk of non-receipt therefore rests squarely with the defendant.”
[36] Applied here, the fact that the notice was only retained at the post office for a day
before being returned does not undermine the credit provider’s compliance.
[37] On this analysis, and provided formal minimum compliance with s129(7), the law
attributes the risk of such non-receipt to the consumer.
[38] The respondent demonstrated the minimum compliance required by the Act, and
it cannot be saddled with the consequences of the post office’s operational
decision to retain the item for only a day.
[39] Consonant with the decision of Binneman, I accordingly agree with the
respondent’s proposition that there was compliance with the obligation imposed
by s129(1)(a) of the NCA.
by s129(1)(a) of the NCA.
[40] Once an applicant makes this evidentiary threshold, the risk of non -receipt rests
squarely with the consumer, and the non -receipt of the s129 notice cannot
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constitute a ground for rescission of the default judgment.
PARTICULAR GROUNDS UPON WHICH RESCISSION IS SOUGHT
[41] The authorities are harmonious on the proposition that compliance
[42] compliance with s129 notice provisions under the NCA could constitute grounds
for rescission of judgment under both Rule 31(2)(b) and 42(1)(a).6 This carries
the necessary implication that non -receipt of this notice could constitute a bona
fide defence pursuant to the broader consideration of good cause.7
[43] I have already found that the respondent has complied with the prescripts of s129.
Accordingly, there is no bona fide defence raised, and resultantly there is no basis
to rescind under Rule 31(2)(b) or the common law.
[44] Under rule 42(1)(a), an applicant must show that the judgment was “erroneously
sought or erroneously granted in the absence of any party affected thereby”. An
order will be erroneously granted “if there existed at the time of its issue a fact
which the court was unaware of, 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.”8
[45] Importantly, once an applicant establishes the judgment was erroneously
6 Sebola, Kubyana, Binneman infra.
7 In casu, it would have to, because the applicant has abandoned reliance on any defense other than non -
receipt of this notice. The proposition may also be extended to include cases for rescission under common
law.
8 Rossitter & Others v Nedbank Ltd [2015] ZASCA 196 at para 15.
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granted, it is not necessary to show a bona fide defence. As the Court held in
Kgomo: “the applicant for rescission [in terms of rule 42(1)(a)] is not required to
show, over and above the error, that there is good cause for the rescission as
contemplated in rule 31(2)(b).”9 That is also the holding of the Constitutional Court
in Ferris: “good cause (including a bona fide defence) is not required for
rescission under rule 42(1)(a)”.10
[46] The dictum of Bishop, AJ, in Williams v Shackelton Credit Management 11 is
instructive in this regard:
“My understanding of rule 42(1)(a) is that if there was an error that is evident
from the papers that precluded the grant of default judgment, then the
judgment was erroneously sought and erroneously granted. Rescission
must follow. The absence of a defence is irrelevant, and I have no discretion
to refuse rescission.
In this case, it was apparent from the summons itself, and the application
for default judgment, that the s 129 notice had not been delivered to the
relevant post office as s 129(7) and Kubyana require. Section 130(4)
prohibited the registrar from granting the default judgment. The default
judgment was, therefore, erroneously sought and erroneously granted.
9 Kgomo and Another v Standard Bank of South Africa and Others 2016 (2) SA 184 (GP) at para 11.7 ;
Williams v Shackleton Credit Management 2024 (3) SA 234 (WCC) at [21].
10 Ferris and Another v FirstRand Bank Ltd 2014 (3) SA 39 (CC).
11 2024 (3) SA 234 (WCC).
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The position will be different where the papers show delivery to the relevant
post office, but it emerges after judgment that the consumer did not receive
the notice. There, delivery was properly made, and judgment was properly
granted. Rescission cannot b e sought under rule 42(1)(a). It will only be
justified under rule 31(2)(b) or the common law if the consumer has a bona
fide defence to the underlying claim, or the court otherwise exercises its
discretion to allow rescission so the consumer can take adva ntage of the
options provided for in s 129.”12
[47] I fully align myself with the dictum of Bishop AJ. The court granting default
judgment was presented with sufficient proof of compliance. The subsequent
discovery that the item was retained for only one day does not retroactively render
the judgment erroneous. As such, there can be no rescission under Rule 42(1)(a).
[48] I also have no reason to exercise any discretion, such as the discretion referred
to by my brother Bishop, AJ, to allow the consumer to take advantage of the
options provided for in s129.
[49] The applicant has conceded that it could have signed the incorrect contract that
carried the higher instalment. It has not made out any case to escape its confines.
Measured against the respondent’s evidence, it appears clear that the applicant
has substantially underpaid in respect of its monthly obligations, and at worst,
12 At [60] through [62].
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has only made three payments towards its credit agreement since inception.
[50] I have already indicated that I do not find any denial by the respondent that it was
not in arrears with its payment obligations when the contract was terminated and
the judgment subsequently granted.
[51] The applicant’s concession that it would proceed only on the issue of non-receipt
of the s129 in any event amounts to a capitulation on the payment defence.
[52] Although the applicant contends throughout that she would have wanted to make
use of the remedial measures at her disposal under s129 had she received the
notice, she nowhere remarks that she was unaware of this entitlement prior to
judgment. There is no reason why a formal dispute could not be raised previously,
especially when regard is had to the multitude of queries that the applicant
allegedly raised with the respondent where it in fact raised disputes, without being
afforded any redress on the version proffered. The applicant was made aware of
the alleged arrears long before the summons was issued. She chose not to invoke
the protection afforded in the NCA . There is no reason why the applicant ought
to be allowed to invoke such measures now.
[53] I do not consider there to be any cogent reason for the favourable exercise of a
discretion, if this court is in fact vested with such a discretion against the findings
above (which I do not pronounce on).
[54] The application must fail.
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[55] It is apposite to record that the credit agreement, at clause 14.2, ma kes provision
for attorney-and-client costs.
[56] In the result the application for rescission of judgment is dismissed w ith costs on
a scale as between attorney and client.
APPEARANCES:
FOR APPLICANT:
SG GOUWS
ACTING JUDGE OF THE HIGH COURT , PRETORIA
R. VAN DER WESTHUIZEN
reonvdw.law @gma il.com
C /0 KMG & ASSOCIA TE S INC.
(012) 460 51 15
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FOR RESPONDENT: SF FISCHER-KLEIN
sfischerklein@gmail.com
Instructed by Velile Tinto & Associates
(012) 807 3366