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another item t o Truck and Finance.
Certain ancillary prayers were also granted, some of
which I regard as inappropriate, but in view of the position I
take on this matter, it is not necessary for me to deal with
them. Im uva complains, in its founding affidavit , that the
vehicle supplied under the instalment sale agreement was
defective. Mr Kooverjie , who appeared for Imuva , accepted
that would not have been a bona fide defence to a claim for
payment . N or would it have rendered the registrar's order
erroneously sought or granted. There may have been other
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remedies arising from the allegedly defective condition of
the vehicle that could then have been pursued, but the
defective condition of the vehicle does not in itself render
the judgment rescindable.
That leaves only Imuva 's case that it did not receive
the notice under Section 129 of the National Credit Act 34
of 2005, to which Imuva says it was entitled. Ordinarily, a
juristic entity taking out a loan for commercial purposes is
not entitled to such notice, but there is an exception under
the Act for entities with turnovers of less than a million
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rand. In the founding affidavit, Imuva pleads that its
turnover is just under R350 000. On the face of the
founding affida vit, therefore, there is a prima facie case,
which is all Imuva needs to make out, that Imuva was
entitled to the benefit of the notice.
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As counsel for Truck and Finance accepted, there is
no evidence before me that the Section 129 notice was sent
in the manner required by the Act , read with the various
decisions of the Constitutional Court on this issue.
Ordinarily, what is required, where a lender seeks to give
notice under Section 129 of the Act by registered mail, is a
record that the notice has been given to the Post Office for
onward transmission, and in addition, evidence that the
Post Office gave notice to the consumer, in this case Imuva ,
that a registered letter was awaiting its collection at the
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Post Office with responsibility for the area in which the
consumer's address is situated. What Truck and Finance
puts before me in the papers is evidence that the notice
was sent to the Post Office, but not that the Post Office
sent the second notice notifying Imuva that a 129 notice
was waiting for it.
On the face of things, therefore, Section 129 of the
Act was not complied with. Although Section 129 only gives
rise to a dilatory defence, non -compliance with Section 129
is still a statutory defect that would lead to the rescission of
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a judgment granted in breach of it. This is because
Section 130 of the National Credit Act debars a court from
considering a claim for the enforcement of a credit
agreement in circumstances where there has been no
compliance with Section 129.
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On the face of things, theref ore, the registrar that
granted the judgment granted it erroneously and did so in
Imuva 's absence. Coun se l for Truck and Finance parried
that conclusion with the proposition that Imuva 's default
was so reckless as to bring it within the strictures laid down
by the Constitutional Court in Zuma v Secretary of the
Judicial Commission of Inquiry into Allegations of State
Capture 2021 (11) BCLR 1263 (CC) (“Zuma ”). In the Zuma
case, the Constitutional Court decided that even though
Rule 4 2 of the Uniform Rules of Court entitle s an applicant
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to rescind an order granted erroneously in their absence,
not just any absence is sufficient to avail an applicant of the
protection of the rule.
If an applicant is absent in circumstances which
suggest that they were reckless to the possibility that
judgment might be granted against them, then that is not
absence for the purposes of the rule (see Zuma paragraph
60) . The Constitutional Court decided that absence for the
purposes of the rule entailed a minimal innocency of
at titude to the proceedings and excluded those who simply
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did not care that proceedings were being pursued against
them. I was asked to accept that Imuva falls into the
category of reckless defendants carved out by the
Constitutional Court in Zuma .
As evidence for that proposition, I was taken to a
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letter apparently written by Imuva 's directors, which
confirmed that they had received the summons commencing
the action on 22 March 2024. The default judgment was
granted on 8 September 2024. From this, I was asked to
infer that the applicants were clearly reckless to the
possibility of judgment being granted against them.
Tempting as it was to reach that conclusion, I do not
think that on a conspectus of all the facts I can fairly
characterise Imuva as recklessly disinterested in the
consequences of Truck and Finance's claim against it. I
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simply do not know enough about the attitude that Imuva
took once the summons was received. On the other hand, I
have a fairly clear indication on the papers that a
peremptory statutory requirement with which Truck and
Finance had to comply before it was entitled to judgment
was in fact not complied with.
In these circumstances, I am driven to accept that the
judgment was erroneously granted in breach of Section 129
of the National Credit Act in circumstances where it has not
been established that Imuva was reckless to that result.
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In those circumstances, I think rescission has to
follow. I do not think it matters that the applicants have not
made out a particularly co nvincing case on cond onation.
Condo nation would only be relevant in a case based
squarely on Rule 32. This case , and the case I have
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sustained , is based on Rule 42. Fundamentally, if an order
was granted in breach of statute, then condonation for any
delay in making out that case need not be sought or
granted.
On the question of costs, ordinarily, Imuva , in seeking
an indulgence from the court , would have to pay the costs
of the application. On the underlying facts, however, I am
concerned that what appears to have happened in this case
is that a small business and a relatively impecunious one at
that, run by individuals who are not conversant in the law,
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was sold a defective machine on which the directors of the
business relied for their livelihood. They were then not
informed of the non -litigious steps they could take to
resolve their difficulty.
In those circumstances, the question of where the
burden of costs in relation to this application should fall is
so bound up with what will now happen t hat I think costs
ought to be costs in the cause. It seems to me that what
will now happen is that a notice in terms of Section 129 will
have to be brought to Imuva 's attention, or it will have to be
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demonstrated that the National Credit Act does not apply.
On the case before me, the National Credit Act does
apply and the remedies available to Imuva under
Section 129 of the National Credit Act would clearly
encompass any complaint they had about the state of the