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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2024/035843
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
In the matter between:
BERNICE DE BEER
Applicant
And
BMW FINANCIAL SERVICES SOUTH AFRICA (PTY)
LIMITED
Respondent
In Re:
BMW FINANCIAL SERVICES SOUTH AFRICA (PTY)
LIMITED
Plaintiff
And
BERNICE DE BEER
Defendant
JUDGMENT
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INTRODUCTION
1. This is an application for the rescission of a default judgment granted
on the 1st of July 2024.
2. The applicant, who is an admitted attorney, seeks the rescission of
that judgment principally, if not solely, on the basis that the judgment
had been erroneously granted. It was erroneously granted because,
so the argument went, the respondent had failed to satisfy the
requirements of Section 129 of the National Credit Act (“the NCA”) by
ensuring that its notice of default in terms of that section had been
sent to the applicant’s correct postal address.
3. Although the applicant does not identify whether her application for
rescission is one brought in terms of Rule 31 or one brought in terms
of Rule 42, Mr Marais, who appeared on behalf of the applicant,
submitted that the application was one brought in terms of Rule 42 by
virtue of the following allegation contained in the applicant’s founding
affidavit:
“It need [sic] to be pointed out that from the respondent’s court
papers it appear [sic] that their attorneys sent the undated
Section 129(1) by registered post to me. The Vereeniging
Postal Services had been non-functional for an extended period
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and I never had any postal facility at Vanderbijlpark. I therefore
never received same. I therefore question the validity of the
Section 129(1) notice which was a pre-requisite to the institution
of the action against me.”
4. I shall, for present purposes, adopt a benevolent view of the
applicant’s founding affidavit and will accordingly deal with the
application as though it were brought in terms of Rule 42.
5. That Rule, provides as follows:
“42(1) The court may, in addition to any other powers it may
have, meri moto 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;
(b) an order or judgment in which there is an
ambiguity or a patent error or omission but only
to the extent of such ambiguity, error or
omission;
(c) an order or judgment granted as the result of a
mistake common to the parties.”
6. The applicant submitted that in terms of this Rule, all that is required
is for the applicant to demonstrate that the judgment had been
erroneously sought and granted. It wa s consequently not necessary
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for the applicant to also show good cause for the subrule to apply.1
BACKGROUND
7. The applicant had concluded an instalment sale agreement with the
respondent in respect of a 2018 BMW 118i Edition, Sport Line
Shadow 5 DR motor vehicle on 10 December 2018.
8. The applicant had breached the instalment sale agreement on
31 January 2024 by failing to make payment of the instalments due
in terms thereof.
9. On 1 February 2024 and 13 February 2024, the respondent delivered
a default notice in terms of Section 129 of the NCA read with
Section 130 to the applicant by registered email and registered mail
to her chosen domicilium citandi et executandi addresses.
10. The applicant did not respond to these notices with the result that the
respondent then instituted action claiming the arrear amounts
together with the cancellation of the instalment sale agreement.
11. The respondent received notice of the Summons and the action
institution by the respondent and consequently made payment of the
arrear amount reflected in the respondent’s Section 129 default
notice. She did not however make payment of the full arrears amount
that was due as at the date on which she made such payment.
1 See: Topol v LS Group Management Services (Pty) Limited 1988 (1) SA 639(W) at 650D-J.
See however: Zuma v Secretary of the Judicial Commission of Inquiry Into Allegations of
State Capture, Corruption and Fraud in the Public Sector [2021] ZACC 28.
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12. Despite knowledge of the action, she failed to enter an appearance
to defend with the result that the respondent proceeded to obtain
default judgment on 1 July 2024.
13. It was only after judgment was obtained and the Sheriff instructed to
remove the motor vehicle, that the applicant reacted by launching an
urgent application to stay the execution of the warrant pending the
outcome of this rescission application.
WAS THE JUDGMENT ERRONEOUSLY SOUGHT OR GRANTED
14. The applicant’s case in summary is the following:
14.1. clause 15.1 of the installment sale agreement
contemplated that the address at which the respondent
would be required to send all notices, correspondence,
statements and documents was the following:
[…] D[…] N[…] Street, U […] P[…], Vereeniging being
the applicant’s physical address, and
P O Box 7[…], Vereeniging being the applicant’s postal
address;
14.2. the respondent delivered its S ection 129 notice to the
Vanderbijlpark Postal Service which was the wrong postal
service in that it should have been the Vereeniging Postal
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Service.
14.3. the Vereeniging Postal Service was, according to the
applicant, non-functional;
14.4. she consequently did not receive the Section 129 notice;
14.5. in the result, the respondent’s failure to have ensured that
its Section 129 notice had been sent to the Vereeniging
Postal Service and not the Vanderbijlpark Postal Service,
meant that the respondent had not complied with
Section 129 of the NCA;
14.6. compliance with S ection 129 of the N CA was peremptory
and in the absence of such compliance, the respondent
could not have instituted action against the applicant;
14.7. The respondent’s claim was accordingly defective and
judgment could not have been granted thereon.
Consequently, the judgment had been erroneously sought
and obtained.
15. The applicant’s entire case rests on the fact that the respondent had
forwarded its Section 129 notice to the Vanderbijlpark Postal Service.
16. The difficulty with this, is several fold:
16.1. the Section 129(1) notice reflected the applicant’s address
as follows:
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“Bernice De Beer
[…] D[…] N[…] Street
U[…] P[…]
AH Vereeniging
1943”
16.2. it is common cause that that was the applicant’s
domicilium address and which she had provided in terms
of the installment sale agreement;
16.3. the tracing results of the Vanderbijlpark Post Office, which
was attached to the respondent’s summons, reveals that
on the 13 th of February 2024, the respondent’s
Section 129 notice was received at the Vanderbijlpark Hub
Sorting Centre and that it was dispatched at 10h19 a.m on
the same day and that a first notification to the applicant
had been given at 13h33 p.m, on the same day;
16.4. the fact that the respondent’s Section 129 notice had been
sent to the Vanderbijlpark’s Post Office to be forwarded on
to the applicant, does not appear to have resulted in the
section 129 notice being rejected by that Postal Service.
On the contrary, that Post Office acted thereupon and sent
a notification to the applicant of the letter.
16.5. the registered slip from the Vanderbijlpark Post Office
reveals that the S ection 129(1) notice had been
dispatched for delivery to the applicant at her chosen
physical domicilium address.
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17. It follows that there had in fact been compliance by the respondent of
the requirements of Section 129 of the NCA.
18. It follows further that the applicant’s reliance on the dicta in Blue
Chip 2 (Pty) Limited t/a Blue Chip 49 v Ryneveldt and Others 2 and
Kgomo and Another v Std Bank 3 and Kubyana v Std Bank of South
Africa Limited4 is misplaced.
19. In Kubyana, the Constitutional Court held as follows:
“(a) The Act does not require proof that the S ection 129 notice
came to the subjective intention of the consumer. Instead,
the Act requires the credit provider to “make averments
that will satisfy a court that the notice probably reached
the consumer”. Indeed, the Act must not be interpreted so
as to impose obligations that are impossible to fulfil.
(b) When a consumer has elected to receive notifications
through the postal service, the credit provider must show
that –
(i) the Section 129 notice was sent by registered mail
and delivered to the correct branch of the post
office, generally to be deduced from a track and
trace report;
(ii) the post office informed the consumer that a
registered item was available for collection;
2 2016 (6) SA 102 (SCA).
3 2016 (2) SA 184 (GP).
4 2014 (3) SA 56 (CC).
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(iii) the notification from the post office reached the
consumer which may generally be inferred if the
notification was sent to the correct postal address
unless there is an indication to the contrary; and
(iv) a reasonable consumer would have ensured
retrieval of the registered item from the post
office.”
5
20. Importantly, the Constitutional Court in Kubyana further held that if a
consumer had elected to receive notices by way of registered mail,
the consumer must respond to notifications from the post office
requesting her to collect registered items unless in the circumstances
a reasonable person would not have responded.
21. In the present instance, the applicant herself contends that the postal
office that she had elected to receive notifications from, was
dysfunctional. She made no attempt to advise the respondent of this.
In addition, the applicant did not engage with whether or not she had
received the notifications from the Vanderbijlpark Post Office and if
so, why she elected to ignore them. It was incumbent upon her in the
circumstances to have engaged with the track and trace report that
had been attached to the respondent’s summons in her founding
affidavit and to have said that she did not receive the first notification
that was referred to in the track and trace report. She did not do so.
On the contrary, her founding affidavit was rather coy. She claimed
5 Para 43.
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not to have received the section 129 notice but did not bother to take
this court into her confidence by dealing with what the track and
tracing slip in fact said.
22. In her replying affidavit, 6 she did no more than assert that her
address fell within the Vereeniging jurisdictional area and that
notifications were supposed to be served by that postal office as the
Section 129 notice was sent to the Vanderbijlpark post office, it was a
jurisdictional area where she does not receive notifications. But that
of course did not explain that the track and trace report in fact
reflected a notification to her.
23. On the applicant’s version, the Section 129 notice should have been
sent to the dysfunctional Vereeniging postal office. If it had, then
despite it being dysfunctional, it would have satisfied the
requirements of the installment sale agreement and consequently the
NCA. This is a form over substance argument that is contrary to the
objectives of the NCA and the purpose behind Section 129 thereof.
24. Given the track and tracing report and the applicant’s lack of
candidness, the respondent was entitled to assume that she had
received notification and that she elected to ignore it.
25. This is consequently not a case where the notification was returned
6 At the end of the hearing of the application, it transpired that the replying affidavit that had
been uploaded onto Caselines, was a replying affidavit in an urgent application that had
been launched by the applicant for the stay of execution. The applicant’s proper replying
affidavit was not on Caselines and neither counsel for the respondent nor the court had
sight thereof. It was subsequently furnished by Mr Marais after the hearing had ended
and judgment reserved. Its contents have however been taken into account.
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to sender or where the evidence on the affidavits demonstrate that
the notification did not come to the attention of the applicant.
26. It is on these peculiar facts that the decision in Sebola v S td Bank of
South Africa Limited and Another 7 is to be distinguished. In that
matter, the Section 129 notice had been diverted from Mr and Mrs
Sebola’s nominated postal address namely Northr iding,
Johannesburg, to the Halfway House Post Office with the result that
they did not receive any notification or the Section 129 notice.
27. In this matter, however, the track and trace report reflects that the
Section 129 notice was dispatched by the Vanderbijlpark Post Office
to the applicant’s nominated physical address and that she had
received notification thereof. Apart from contesting that the incorrect
post office was utilised, there is in fact no denial by the applicant that
that post office nevertheless dispatched the Section 129 notice to her
and that she received notification of it.
28. It may be that the applicant did not receive the Section 129 notice
because she failed to retrieve it when she had been given notification
thereof. But as both Sebola and Kubyana point out, there is no
requirement on the part of a credit provider to ensure that the notice
be brought to the consumer’s subjective attention or that personal
service is necessary.
29. In light of this conclusion, it would be unnecessary to consider
7 2012 (5) SA 142 (CC).
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whether, had the application had been brought in terms of Rule 31,
the applicant would have demonstrated good cause. Suffice it to say,
that the applicant had failed to demonstrate any good cause. Being
an admitted attorney and having become aware of the summons
prior to the application for default judgment, she elected not to enter
an Appearance to Defend. She did so notwithstanding having been
warned by the respondent that her failure to make payment of her
entire outstanding arrear amount, meant that she remained in breach
of the installment sale agreement and that the respondent would
proceed with legal action.
30. Finally, the applicant had also raised the typical dilatory defence that
the respondent’s affidavit had not been properly commissioned and
should therefore have been struck out. At the hearing of the
application, Mr Marais did not forcefully persist with this defence and
rightly so. The failure by the Commissioner to have scratched out the
“he” before the “ she”, did not result in the aff idavit having not been
properly deposed to or the Commissioner having failed to comply
with Regulations 3 and 4 of the Justices of the Peace and
Commissioners of Oath Act, 16 of 1963, regulations governing the
administering of an oath or affirmation, published under GNR1258 in
GG3619 of 21 July 1972.
31. In the result, I make the following order:
31.1. the application is dismissed;
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31.2. the applicant is to pay the costs of the application on an
attorney client scale.8
M A CHOHAN
ACTING JUDGE OF THE GAUTENG LOCAL DIVISION
10 October 2025
DATE OF HEARING: 06 October 2025
DATE OF JUDGMENT: 10 October 2025
APPEARANCES:
FOR THE APPLICANT: A.S Marais
H W Smith & Marais Attorneys
8 The agreement provides for attorney client costs to be paid by the applicant.
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FOR THE RESPONDENT: Adv. T. Mirtle
Instructed by: Mooney Ford Attorneys