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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case number: 2024/080373
[1] REPORTABLE: NO
[2] OF INTEREST TO OTHER JUDGES: NO
[3] REVISED: NO
SIGNATURE
DATE: 20 NOVEMBER 2025
In the matter between:
NEDBANK LIMITED Plaintiff
and
PATRICK TSHIVHASE Defendant
JUDGMENT
DALRYMPLE AJ:
[1] The plaintiff applies for summary judgment against the defendant. The plaintiff
and the defendant were parties to an instalment sale agreement in terms of
which the plaintiff financed the purchase of the defendant’s motor vehicle,
being a 2016 BMW 420D Gran Coupe Sport A/T (F36), engine number 7[...]
and chassis number W[...] (“the vehicle”).
[2] In its particulars of claim, the plaintiff alleged that the defendant had breached
the instalment sale agreement in that he had failed to make due and punctual
monthly payments to the plaintiff and was in arrears in the amount of
R25 619,22 as at the date of the particulars of claim. The plaintiff further
alleged that despite demand, the defendant had failed to make payment of the
arrears, that it had elected to cancel the agreement and take repossession of
the vehicle. The plaintiff thus sought cancellation of the instalment sale
agreement and return of the vehicle.
[3] The plaintiff pleaded that it had complied with section 129 of the National
Credit Act 34 of 2005 (“ the NCA”) and relied upon a letter dispatched by its
attorneys to the defendant dated 1 July 2024. The defendant raised a special
plea in which he contended that the plaintiff had not complied with sections
129(1)(a), 130(1)(a) and 130(3)(a) of the NCA. Several contentions were
advanced in support of this special plea. It is only necessary to address one of
them for present purposes. The defendant pleaded tha t the plaintiff’s section
129 notice recorded that the defendant’s account was in arrears by
R288 660,99. This was an incorrect figure si nce the defendant’s account was
in fact in arrears in the amount of R25 619,22. The correct amount of the
arrears was pleaded in the particulars of claim but differed to the amount
recorded in the section 129 notice. The defendant’s contention was that since
the section 129 notice was defective, section 129 had not been complied with
and this precluded the granting of summary judgment.
[4] In its affidavit in support of its application for summary judgment, the plaintiff
contended that the issue of non-compliance with the provisions of section 129
of the NCA was without merit. It conceded that the notice dated 1 July 2024
recorded the arrears in an incorrect amount of R288 660,99. The plaintiff
recorded the arrears in an incorrect amount of R288 660,99. The plaintiff
contended however that another notice in terms of section 129 was delivered
to the defendant and to his attorneys on 25 September 2024. This s econd
section 129 letter correctly recorded the amount of t he arrears so the defect
was cured.
[5] At this juncture, it is apposite to set out the chronology of the relevant events.
The plaintiff’s first section 129 notice was delivered to the defendant on 1 July
2024 and its summons was issued on 19 July 2024. The defendant delivered
notice of intention to defend on 13 August 2024, and pursuant to a notice of
bar being filed on 16 August 2024, the defendant filed his plea (and special
plea) on 20 August 2024. On 23 September 2024 the plaintiff delivered a
second section 29 notice, this time reflecting the correct arrear amount. The
defendant challenged the appropriateness of delivery of this notice on the
basis that it was sent to his attorneys and not to him. Besides that, the
defendant contended that it was procedurally and substantively improper for
the plaintiff to attempt to cure a defective notice ex post facto by emailing a
corrected one to his attorneys after commencement of the proceedings.
[6] Counsel for the defendant referred to Amardien v Registrar of Deeds .1 In that
matter, the Constitutional Court held as follows:
“[60] Section 129(1) of the NCA refers to a situation where the consumer is
‘in default’. Section 129(1)(a) and (b) explain the obligations that the
creditors must fulfil before moving to enforce their debt. The text
explicitly refers to ‘the default’ that must be drawn to the notice of the
consumer by the creditor – and not just the fact that the consumer is
‘in default’. Read in conjunction with s130(4) which provides an
opportunity to the debtor to remedy the default, s129(1) should be
interpreted to include the amount so that the debtor knows how much
to pay to avoid cancellation. The same applies to the notice under s19
of the ALA. In addition, in order to ‘ [provide] consumers with adequate
disclosure of standardised information in order to make informed
choices’ they must be informed of the extent of their arrears in the
s129 of the NCA notice so as to decide how to move forward
regarding the management of their debt.
regarding the management of their debt.
[61] It is thus a necessary requirement to specify the amount and nature of
the default in the s129 NCA notice. As s129(1) specifically requires
the credit provider to ‘draw the default to the attention of the
consumer’ it is clear that this will only be met if the amount of arrears
is specified in the notice, since the consumer’s attention will not have
1 2019 (3) SA 341 (CC)
been drawn to the amount of the default otherwise. If the basis of the
default is that the debtor has fallen into arrears, it must follow
axiomatically that ‘drawing the default to the attention of the consumer’
entails that the consumer should be advised of the amount in arrears.
It is only when this has been done that it can be said that notice of the
‘default’ has been drawn to the attention of the consumer.
[62] If the consumer is not advised of the arrear amount she will be left
none the wiser. The referral by the consumer of the credit agreement
to a debt counsellor, alternative dispute resolution agent, consumer
court or ombud with jurisdiction presupposes that the consumer has
been apprised of the facts to enable her to, amongst others, develop
and agree on a plan to bring the payments under the agreement up to
date. One may rhetorically ask: how is the consumer to agree on a
plan to bring payments under the agreement up to date if she is not
notified of the amount in arrears?”
[7] The defendant submitted that the plaintiff was required not only to bring the
defendant’s attention to the fact of default, but to do so accurately. This would
enable the defendant to reasonably understand the exact amount required to
remedy the default and avoid cancellation of the agreement.
[8] With reference, inter alia to Amardien, a full bench of this Division, sitting in
Pretoria, in FirstRand Bank Limited v Reineke and Another 2 held that the
court a quo in that matter had correctly found that the s ection 129 notice was
non-compliant w ith the NCA in that it did not contain the correct arrears
amount.
[9] In Gulf Steel v Rack -Rite BOP (Pty) Limited3 the court held that even before
considering whether the defendant has established a bona fide defence, the
court must be satisfied that the plaintiff’s claim has been clearly established
and that his pleading s are technically in order; if either of these two
and that his pleading s are technically in order; if either of these two
requirements is not met, the court is obliged to refuse summary judgment
2 (A103/2024) [2025] ZAGPPHC 57 (21 January 2025)
3 1998 (1) SA 679 (O) at 683H to 684B
even if the defendant has failed to put up any defence or has put up a defence
which did not meet the standard required to resist summary judgment.
[10] Gulf Steel was approved of in this Division, by the full court, in Liquor Network
Agency CC and Another v Skylim Beverages CC .4 The court held that a
plaintiff seeking summary judgment must establish a valid, competent claim
before the court can consider whether the defendant has a bona fide defence.
A defective application cannot be remedied by the defendant’s response: it is
either valid on its own merits or it is not. If it is not, then it is not necessary for
the court to consider whether a bona fide defence has been established.5 The
court held that the view in Buttertum Property Letting (Pty) Limited v
Dihlabeng Local Municipality 6 that this sets the bar too high for plaintiffs, and
that prejudice to the defendant is a material factor to be considered by a court
faced with a defective application for summary judgment is contrary to binding
precedent. 7
[11] It is common cause that the plaintiff’s initial section 129 notice was incorrect in
that it referred to the wrong amount of the arrears. Having regard to the
aforementioned authorities, which are binding on this court, the section 129
notice sent by the plaintiff was defective and not compliant with the NCA. The
plaintiff thus failed to establish a valid and competent claim in its particulars .
This is not a “mechanical” objection to the first section 129 notice. On the
plaintiff’s own version, it failed to send a compliant section 129 notice. The
cause of action verified by the deponent in the affidavit in support of the
application for summary judgment was defective.
[12] The question that then arises is whether the plaintiff’s second notice in terms
of section 129 dated 23 September 2024 assists it. It is not necessary to
decide whether delivery of that sec ond notice accorded with the requirements
decide whether delivery of that sec ond notice accorded with the requirements
of the NCA because even if it did, the second notice cannot cure the defective
claim as pleaded in the particulars of claim nor can it cure the defective
4 2025 (2) SA 507 (GJ)
5 Liquor Network Agency CC and Another paras [16] to [25]
6 [2016] 4 All SA 895 (FB)
7 Liquor Network Agency CC and Another paras [16] to [25]
summary judgment. This is firstly because it was never part of the cause of
action that the plaintiff’s deponent verified when the plaintiff applied for
summary judgment. Secondly, it was held in FirstRand Bank Limited t/a First
National Bank v Moonsammy t/a Synka Liquors 8 that non -compliance with
section 129 is not cured by attaching proof of purported compliance with
section 129 to a summons, an application for default judgment or for summary
judgment.9 The same principle applies. A defective section 129 notice cannot
be cured by substituting it for a new one in summary judgment proceedings.
[13] The plaintiff on its own pleadings as well as in the affidavit in support of
summary judgment does not establish a claim and is not entitled to summary
judgment.
[14] Counsel for the defendant argued that the non -compliant section 129 notice
was fatally defective not only to the plaintiff’s application for summary
judgment but for the plaintiff’s entire action so that if the plaintiff wished to
proceed with its claim against the defendant, it would have to withdraw the
claim, tender its costs and start afresh. I disagree. As the defendant’s counsel
pointed out, the plaintiff may amend its particulars of claim. In that case,
compliance with sections 129 and 130 of the NCA will have to be addressed
again.
[15] The relevant portions of section 130 of the NCA provide as follows:
“…
(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 it 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;
…
8 2021 (1) SA 225 (GJ)
9 Supra, para [47]. This approach was approved of in Wesbank v Ralushe 2022 (2) SA 626 (ECG) at
para [30]
(4) In any proceeding s contemplated in this section, if the court
determines that –
…
(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;
…”
[16] Section 130(4) finds application in the circumstances of this matter and it is
appropriate that I make an order in accordance with it.
[17] The following order is made:
(1) The application for summary judgment is dismissed.
(2) The defendant is granted leave to defend with effect from the date of
this judgment.
(3) The action proceedings are stayed until ten (10) business days after
the plaintiff, in due compliance with sections 129 and 130 of the
National Credit Act 34 of 2005 , has served a notice as contemplated
in section 129(1)(a) of the National Credit Act at the addresses
provided for in the instalment sale agreement and in the manner
contemplated in section 129(5) of the National Credit Act.
(4) Costs are to be costs in the cause.
T DALRYMPLE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
This judgment was handed down electronically by circulation to the parties’ and/or
parties’ representatives by email and by being uploaded to CaseLines. The date for
hand-down is deemed to be 20 November 2025.
DATE OF HEARING: 14 OCTOBER 2025
DATE OF JUDGMENT: 20 NOVEMBER 2025
APPEARANCES:
COUNSEL FOR THE PLAINTIFF: N JONGANI
INSTRUCTED BY: VAN DEVENTER DLAMINI
INC
COUNSEL FOR THE DEFENDANT: K MATLALA
INSTRUCTED BY: DENTONS