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[2026] ZAGPPHC 336
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Thobejane v Standard Bank of South Africa Limited (036612/2023) [2026] ZAGPPHC 336 (12 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number: 036612/2023
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE:
12/3/26
SIGNATURE
In
the matter between:
THOBEJANE:
TSHEKO
JOEL
Applicant
And
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
1
st
Respondent
(Registration
Number: 1962/000738/06
JUDGMENT
ALLY, AJ
[1]
This is an opposed application for rescission of a judgment delivered
by my brother Millar J on 29 August
2023.
[2] The
applicant was represented by Mr Senoko and the respondent by Adv.M.
Rakgoale.
[3] At
the outset, both parties submitted that each agreed to the
condonation applications and in the interests
of justice, condonation
on the part of both parties was granted.
[4] It
is common cause that the respondent and the applicant entered into an
instalment sale agreement in terms
whereof the applicant purchased a
Mercedez Benz from the applicant.
[5] It
is further common cause that the applicant fell into arrears and the
respondent launched and was granted
default judgment on 29 August
2023.
[6] The
applicant aggrieved by the default judgment granted, launched this
application in terms of:
3.1.
Rule 31(2) (b) of the Uniform Rules of Court;
3.2.
Rule 42(1) of the Uniform Rules of Court;
3.3.
the common law.
[4]
Rule 31(2) (b) provides:
“
A
defendant may within 20 days after he has 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 to it seems meet.”
[5]
With regard to the 20 days within which to launch the rescission
application, this court has already pronounced
that condonation is
granted in the interests of justice. However, the other requirements
for reliance on Rule 31(2) (b) of the
Uniform Rules of Court must
still be shown and proven.
[6]
It is now trite that a party relying on Rule 31(2)(b) of the Uniform
Rules of Court must ‘show good
cause’ for the setting
aside of default judgment against them. ’Good cause’ has
been held
[1]
to mean:
“
the
applicant must give a reasonable explanation for the delay;
the
application must be bona fide and not made merely for delaying the
plaintiff’s claim;
the
applicant must show he/she has a bona fide defence to the plaintiff’s
claim.”
[7] The
question that arises is whether the applicant has met the
requirements set above. For present purposes
this court finds that
the applicant has given a reasonable explanation for the delay in
launching this application. This court
also finds that this
application is
bona fide
and not made merely for delaying the
plaintiffs claim.
[8]
The final requirement for ‘good cause’, however, must be
interrogated further. The applicant submits
that the requirements of
Section 129 of the National Credit Act
[2]
,
hereinafter referred to as ‘the Act’, have not been
complied with in that the respondent did not serve the Section
129
notice on his address in terms of the instalment sale agreement.
[9] The
applicant submits that the respondent served the section 129 notice
by email to an address that was dormant.
Furthermore, the instalment
agreement was clear as to the
domicilium
to be used and same
was not used for purposes of section 129 but in respect of service of
the summons.
[10]
Section 129 of ‘the Act’ 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."
(c)
the termination thereof in accordance with section 123.
(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, 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
(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).”
[11]
It should be noted that Section 129 was amended to include how a
notice must be delivered in terms of the
section. Subsection 5 is
clear that the notice must be delivered by registered mail or at the
location designated by the consumer.
The amendment arose after the
judgment in
Sebola
[3]
.
[12]
Now it is the applicant’s submission that the chosen mode of
notification was made in terms of clause
22 of the instalment sale
agreement
[4]
and this clause was
not complied with in that the respondent emailed the section 129
notice contrary to the provisions of the said
agreement.
[13]
The respondent’s response to the above submissions by the
applicant are to the effect that the email
address used for the
section 129 notice was an email address that was previously used and
that the applicant admits or cannot deny
that the said dormant email
address was provided by the applicant. Furthermore, the respondent
submits that in accordance with
clause 22.4 of the instalment sale
agreement gainsays the applicant’s version.
[14]
Firstly, ‘the Act’ has stipulated how a section 129
notice needs to be delivered and the email
to the applicant was not
such requisite notice. Secondly, clause 22.4 of the instalment
agreement specifically makes mention of
‘actually received’.
This phraseology, in my view, demands more of a credit provider to
the effect that it must be
shown that the consumer, in this case the
applicant, ‘actually received’ the notice.
[15]
Without proof that the section 129 notice was ‘actually
received’ by the applicant and on the
papers, that the address
of the applicant specifically mentioned in the instalment sale
agreement was not used to send ‘registered
mail’ it
cannot be stated that the respondent has complied with section 129
read with section 130 of ‘the Act’
[5]
.
[16]
It must be remembered that a section 129 notice is a precursor for
the institution of legal proceedings against
a consumer. In the
circumstances where it has been shown that there was no valid
notification in terms of section 129, a summons
could not have been
issued and default judgment obtained.
[17]
It is worth noting from the papers that the above state of affairs
was not brought to the attention of Millar
J. It is my view, that had
this state of affairs, the non-compliance with section 129, been
brought to the attention of Millar
J, default judgment would not have
been granted.
[18]
Having regard to the above, I am of the view that the applicant has
satisfied this court that rescission
of the judgment by Millar J
should be granted in terms of Rule 31(2)(b).
[19]
Should I be wrong in coming to the conclusion that the applicant has
satisfied the requirements of Rule 31(2)(b)
of the Uniform Rules of
Court, then the applicant has also relied on Rule 42(1) of the
Uniform Rules of Court.
[20]
Rule 42(1) of the Uniform Rules of Court provides:
“
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;
…
.”
[21]
In my view, the applicant has shown that the judgment was
‘erroneously granted in the absence of the applicant’
in
that Millar J was not apprised of the fact the respondent had not
complied with section 129 as read with section 130 of ‘the
Act’. For these reasons also, the application of the applicant
must succeed. Because of the conclusion I have reached in
this
matter, I do not deem it necessary to deal with the requirements of
the common law in a rescission application.
[22]
There is no reason why costs should not follow the result. The
applicant has, however, requested costs on a punitive
scale. I have
taken into consideration the submissions of the applicant as to why a
punitive costs order should be granted but
I am not satisfied that
the threshold for a punitive costs order has been engaged or proven.
Furthermore, it is trite that the
award of costs vests in the
discretion of the court which discretion must be exercised
judicially.
[23]
Accordingly, the following Order shall issue:
a).
the Order by Millar J dated 29 August 2023 is hereby rescinded;
b).
the respondent is to pay the costs of tis application on a party and
party scale,
subject to paragraph (c);
c).
the costs reserved on 17 March 2025 are to be paid by the applicant.
ALLY. G
ACTING JUDGE OF THE
HIGH COURT
PRETORIA
Electronically
submitted therefore unsigned
Delivered: This
judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 12 March 2026.
Date
of hearing: 2 September 2025
Date
of judgment: 12 March 2026
For the
Applicant:
Mr M F
Senoko
[email protected]
For the
First Respondent:
Adv. M.
Rakgoale instructed by
Vezi De
Beer Attorneys
christiaan
@vezidebeer.co.za
[1]
Grant
v Plumbers (Pty) Ltd 1949 (2) SA 470 (O) 476-477
[2]
Act
34 of 2005, as amended
[3]
Sebola
v Standard of South Africa Limited & Ano
2012 (5) SA 142
CC
[4]
CaseLines:
Section A34
[5]
Kubyana
v Standard Bank of South Africa Limited
2014 (3) SA 56
CC