Kubyana v Standard Bank of South Africa Ltd (CCT 65/13) [2014] ZACC 1; 2014 (3) SA 56 (CC); 2014 (4) BCLR 400 (CC) (20 February 2014)

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Kubyana v Standard Bank of South Africa Ltd (CCT 65/13) [2014] ZACC 1; 2014 (3) SA 56 (CC); 2014 (4) BCLR 400 (CC) (20 February 2014)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 65/13
DATE:
20 FEBRUARY 2014
In
the matter between:
MOSHOMO
LEVIN
KUBYANA
........................................................................
.
Applicant
And
STANDARD
BANK OF SOUTH AFRICA LTD
..........................................
..
Respondent
And
SOCIO-ECONOMIC
RIGHTS INSTITUTE
OF
SOUTH
AFRICA
..............................................................................
...
Amicus
.
Curiae
Neutral
citation:
Kubyana
v Standard Bank of South Africa Ltd
[2014]
ZACC 1
Coram:
Moseneke
ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Jafta J, Froneman J,
Madlanga J, Mhlantla AJ, Nkabinde J, Van der
Westhuizen J and
Zondo J
Heard
on:
7
November 2013
Decided
on:
20
February 2014
Summary:
National
Credit Act 34 of 2005
–
section 129
– notice of default –
obligation to deliver.
Consumer’s
election on manner of delivery of notices – credit provider
must respect that election – delivery amounts
to the taking of
steps that would bring the notice to the attention of a reasonable
consumer – consumer may not claim non-delivery
of notice if she
has been unreasonably remiss in failing to engage with the notice.
ORDER
On
appeal from the North Gauteng High Court, Pretoria (Ledwaba J):
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
There is no order as to costs.
JUDGMENT
MHLANTLA
AJ (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J,
Madlanga J and Van der Westhuizen J concurring):
Introduction
[1]
What are the steps that a credit provider must
take in order to ensure that a notice of default reaches a consumer
before it may
commence litigation?  What must a credit provider
prove in order to satisfy a court that it has discharged its
obligation
to effect proper delivery of a statutory notice? These are
the issues we are required to determine in this matter, which comes
before us as an application for leave to appeal wherein the applicant
challenges a decision of the North Gauteng High Court, Pretoria
(High
Court).
Background
[2]
In November 2007 the applicant (Mr Kubyana) and the respondent
(Standard Bank) entered into an agreement regulated by the
National
Credit Act,
[1
]
in
terms of which Mr Kubyana purchased a motor vehicle and was obliged
to pay off the purchase price in 60 monthly instalments of
R2 501,25
each.  He chose an address as his
domicilium
citandi et
executandi
[2]
for
purposes of all notices and correspondence sent by Standard Bank in
relation to the instalment sale agreement.
[3]
On a number of occasions between October 2008 and July 2010 Mr
Kubyana fell into arrears with his payments. Standard Bank attempted

to bring this to his attention in various ways. It contacted him by
telephone on numerous occasions, and during these conversations
he
made promises to settle his outstanding debt.
[3]
Standard
Bank also attempted to discuss Mr Kubyana’s indebtedness with
him at his workplace. Its employees twice attempted
to visit him
there, to no avail.
[4]
Thereafter Mr Kubyana’s account consistently remained in
arrears for a number of months. On 15 July 2010 Standard Bank
sent
him a notice in terms of section129(1) of the Act,
[4]
setting
out his statutory rights and requesting him to pay his outstanding
debts. The notice was sent by registered mail to the
address
nominated by Mr Kubyana in the instalment sale agreement.
[5]
According to the track and trace report
[5]
from
the Post Office, the notice reached the Pretoria North Post Office on
20 July 2010. On the same day the Post Office sent a
notification to
the address nominated by Mr Kubyana, informing him that an item had
been sent by registered mail and was awaiting
his collection. He
failed to collect the registered item (the
section 129
notice). Seven
days later a second notification was sent to him. Again he did not
respond and the notice remained at the Pretoria
North Post Office. On
1 September 2010 the Post Office returned the unclaimed
section 129
notice to Standard Bank.
Litigation
history
[6]
On 28 September 2010 Standard Bank issued summons
against Mr Kubyana for the cancellation of the instalment sale
agreement, the
return of the motor vehicle and the payment of
damages.  Mr Kubyana filed a special plea that the High Court
had no jurisdiction
to hear the matter because Standard Bank had
failed to comply with its obligations in terms of
section 129
of the
Act, as well as the terms of the instalment sale agreement, as his
account had not been in arrears when the notice was sent.
He
subsequently averred that he did not receive the notice until he was
served with the summons.
[7]
The matter proceeded to trial in the High Court before Ledwaba J.
Mr Kubyana was legally represented and the dispute was
fully
ventilated.  Standard Bank adduced evidence to establish that:
Mr Kubyana’s account was and had been in arrears;
it had taken
steps to bring this to his attention; the
section 129
notice had been
sent via registered post to the address nominated by Mr Kubyana in
the instalment sale agreement; the notice had
reached the correct
branch of the Post Office; and the notification from the Post Office
had been sent to Mr Kubyana’s address.
Though present, Mr
Kubyana did not testify or provide an explanation for his failure to
collect the
section 129
notice.
[8]
The
High Court upheld Standard Bank’s claim, finding that it had no
obligation to use additional means to ensure that Mr Kubyana
received
the
section 129
notice.
[6]
It
concluded that Mr Kubyana had a duty to explain why the notice did
not reach him notwithstanding Standard Bank’s efforts,
and that
his failure to do so had to count against him.
[7]
[9]
The Supreme Court of Appeal dismissed Mr Kubyana’s
application for leave to appeal against the decision of Ledwaba J. He
now
seeks leave to appeal to this Court.
Submissions
in this Court
[10]
In
his papers Mr Kubyana set out various grounds of appeal, including a
claim that Standard Bank had breached
section 106
of the Act
[8]
by
impermissibly debiting his account with insurance premiums and an
allegation that the proceedings before the High Court were
unfair and
in breach of section 34 of the Constitution.
[9]
After
Mr Kubyana filed his papers but before the hearing, the
Socio-Economic Rights Institute of South Africa (SERI) was admitted

as a friend of the court (amicus curiae).
[10]
The
Registrar of this Court was subsequently informed that counsel for
SERI would present oral argument on Mr Kubyana’s behalf,
which
he duly did.  During the hearing the contentions regarding
section 34 of the Constitution and section 106 of the Act
were
abandoned.  Mr Kubyana’s case narrowed considerably and he
now asserts only two grounds of appeal.
[11]
First, relying on this Court’s judgment in
Sebola
,
[11]
Mr
Kubyana contends that, if there is evidence that a section 129 notice
was sent by registered post but was returned to the credit
provider
unclaimed, this shows that there has not been proper delivery as
required by the Act as it indicates that the notice has
not come to
the attention of the consumer for whom it was intended.
[12]
In
that event, a court hearing the dispute must adjourn the proceedings
as contemplated in section 130(4)(b) of the Act
[13]
and
cannot grant judgment. In the circumstances of this case, Mr Kubyana
contends that the fact that the section 129 notice was
returned to
Standard Bank uncollected constituted an indication contradicting the
inference of proper delivery. Judgment therefore
ought not to have
been granted in Standard Bank’s favour. Second, Mr Kubyana
relies on sections 8(3), 32(1)(b) and 39(2)
of the Constitution
[14]
(read
with sections 129 and 130 of the Act) and argues that he is entitled
to information held by another person if that information
is required
for the exercise or protection of his rights. He submits that his
constitutional right to receive information was infringed
when he did
not receive delivery of the section 129 notice, as that notice
contained information necessary for the exercise of
his rights under
the Act.
[12]
In response to Mr Kubyana’s first argument,
Standard Bank argues that, once it is proven that the section 129
notice was sent
by registered mail to the correct branch of the Post
Office, the credit provider may credibly aver receipt of the notice
by the
consumer. This satisfies the requirements of the Act. The
burden of rebuttal then shifts to the consumer to assert that the
notice
did not reach her and to invite the court to make a finding in
relation thereto. To place additional requirements on the credit

provider would impose too onerous a burden and would afford consumers
the undue advantage of being able to ignore validly sent
notices with
impunity.
[13]
Regarding
Mr Kubyana’s access to information argument, Standard Bank
contends that his reliance on section 32(1)(b) of the
Constitution is
misplaced because section 32(1)(b) is realised through the Promotion
of Access to Information Act.
[15]
In
the circumstances of this case he has no cause of action under that
statute, so the argument goes, because he made no formal
request for
information in terms of PAIA and therefore never engaged its
protections. Moreover, Standard Bank contends that it
regularly kept
Mr Kubyana informed of the state of his account and cannot be said to
have deprived him of relevant information.
[14]
SERI submits that, in the light of
Sebola
,
the crucial question for determination in a dispute such as the
present one is whether, as a matter of fact, the section 129 notice

came to the attention of the consumer. Why it may not have done so is
irrelevant, for the Act does not require an enquiry into
subjective
factors such as a consumer’s culpability for not receiving
notices. On the undisputed facts, SERI contends it
is clear that the
section 129 notice did not reach Mr Kubyana: it was never collected
by him from the Pretoria North Post Office
and was returned to
Standard Bank unclaimed.Accordingly, there was no compliance with
section 129 of the Act. SERI contends that
the
High Court therefore ought to have adjourned the trial and directed
Standard Bank to take
further steps to
ensure that the section 129 notice reached Mr Kubyana.
Issues
[15]
In this matter we are required to—
(a)
determine whether leave to appeal should be granted;
(b)
interpret section 129 of the Act and identify its requirements;
(c)
clarify the meaning and implications of
Sebola
and its application to this case; and
(d)
determine an appropriate costs order.
Leave
to appeal
[16]
It
is by now trite that this Court will hear a matter that raises a
constitutional issue if the interests of justice so require.
[16]
As
previously explained, the interpretation of the Act’s notice
provisions implicates fundamental notions of equity in, and
the
transformation of, the credit market. Such an interpretation is
therefore inherently linked to the constitutional objective
of
achieving substantive equality.
[17]
This
matter thus gives rise to a constitutional issue.
[17]
This
case concerns the proper interpretation of a statute that regulates
commercial activity undertaken by many people and institutions
on a
daily basis. The issues at stake are therefore of fundamental
importance to many South Africans.
[18]
Furthermore, this matter requires us to clarify the scope and
application of
Sebola
.
As is apparent from the law reports, there are a number of
conflicting superior court decisions dealing with the meaning of
section
129 of the Act and the interpretation of that provision by
this Court in
Sebola.
[19]
It
is imperative for purposes of certainty and the proper functioning of
the marketplace that we identify the rights and obligations
of both
credit providers and consumers under the Act and specifically under
section 129. In sum, this matter implicates constitutional
issues
that the interests of justice require us to determine. Leave to
appeal is therefore granted.
The
interpretation of section 129 of the Act
[18]
It
is well established that statutes must be interpreted with due regard
to their purpose and within their context.
[20]
This
general principle is buttressed by section 2(1) of the Act, which
expressly requires a purposive approach to the statute’s

construction.
[21]
Furthermore,
legislation must be understood holistically and, it goes without
saying, interpreted within the relevant framework
of constitutional
rights and norms.
[22]
However,
that does not mean that ordinary meaning and clear language may be
discarded, for interpretation is not divination and
courts must
respect the separation of powers when construing Acts of
Parliament.
[23]
[19]
The
historical context and purpose of the Act were set out in detail in
Sebola
.
[24]
It
suffices to emphasise the following points. The Act is a legislative
effort to regulate and improve relations between consumers
and
providers of credit. The main purposes of the Act are “to
promote and advance the social and economic welfare of South

Africans, promote a fair, transparent, competitive, sustainable,
responsible, efficient, effective and accessible credit market
and
industry, and to protect consumers”.
[25]
[20]
There
can be no doubt that the Act is directed at consumer protection.
[26]
However,
this should not be taken to mean that the Act is relentlessly
one-sided and concerned with nothing more than devolving
rights and
benefits on consumers without any regard for the interests of credit
providers.No. For just as the Act seeks to protect
consumers, so too
does it seek to promote a competitive, sustainable, efficient and
effective credit industry. This objective is
to be attained by
promoting responsibility in the credit market;
[27]
“
encouraging
responsible borrowing [and the] fulfilment of financial obligations
by consumers”;
[28]
discouraging
contractual default;
[29]
and
adhering to a debt-enforcement system that prioritises “the
eventual satisfaction of all responsible consumer obligations
under
credit agreements.”
[30]
[21]
Thus,
the promotion of equity in the credit market is to be achieved by
balancing the respective rights and responsibilities of
credit
providers and consumers.
[31]
It follows that the correct interpretation of section 129 is one that
strikes an appropriate balance between the competing interests
of
both parties to a credit agreement.
[22]
It
is also fitting to have regard to section 129 in particular.
[32]
This section sets out the procedures a credit provider must follow
before enforcing a debt. Its purpose is two-fold. First, it
serves to
ensure that the attention of the consumer is sufficiently drawn to
her default. Second, it enables the consumer to be
empowered with
knowledge of the variety of options she may utilise in order to
remedy that default.
[33]
As
explained in
Sebola
,
the aim of the provision is to facilitate the consensual resolution
of credit agreement disputes.
[34]
It
is important to emphasise this consensuality – both the credit
provider
and
the
consumer have responsibilities to bear if the dispute is to be
resolved without recourse to litigation.
[23]
This exposition of the aims and objects of the Act
will inform our understanding of its particular provisions. However,
interpretation
is about giving meaning to words, and it is therefore
appropriate to commence the interpretive exercise by considering the
language
of the statute. In this matter we are primarily concerned
with section 129 of the Act, which is entitled “Required
procedures
before debt enforcement”. Subsection (1) reads:
“
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.
”
[24]
Although
subsection (1)(a) is framed in permissive language (“the credit
provider
may
”
),
subsection (1)(b) is expressed in peremptory terms: legal proceedings
for the enforcement of a credit agreement “
may
not
commence”
until the section129 notice has been provided to the consumer.
[35]
Proper
dispatch of the section 129 notice is therefore essential for a
credit provider that wishes to enforce its rights against
a
defaulting consumer in the courts.
[36]
[25]
In
Sebola
this
Court held
[37]
that
section 129(1) must be read in conjunction with the relevant
provisions of section 130, which is entitled “Debt procedures

in a Court”. The relevant provisions of section 130 read:
“
(1)
Subject to subsection (2), a credit provider may approach the court
for an order to enforce a credit agreement only if, at that
time, the
consumer is in default and has been in default under that credit
agreement for at least 20 business days and—
(a)
at least 10 business days have elapsed since the credit provider
delivered a notice to the consumer as contemplated in section
86(9),
or section 129(1), as the case may be;
(b)
in the case of a notice contemplated in section 129(1), the consumer
has—
(i)
not responded to that notice; or
(ii)
responded to the notice by rejecting the credit provider’s
proposals; and
(c)
in the case of an instalment agreement, secured loan, or lease, the
consumer has not surrendered the relevant property to the
credit
provider as contemplated in section 127.
.
. .
(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
the court 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;
....
(4)
In any proceedings 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) . . . 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
”
.
[26]
As
explained in
Sebola
,
section 129 prescribes
what
the
credit provider must do: indicate in writing to the relevant consumer
that she is in default and that she has certain statutory
remedies
available to her in order to satisfy her outstanding debts without
recourse to litigation.  Section 130, on the other
hand, sets
out
how
the
credit provider must discharge this obligation: deliver a written
notice to the consumer as required by the statute.
[38]
The
crucial question is: what must a credit provider do in order to meet
the standard prescribed by the Act for the delivery of
a section 129
notice?
[27]
Unfortunately, the definition section and sections
129 and 130 are of little assistance in giving content to this
obligation, as
they make no prescriptions regarding the acceptable
modes of delivery under the statute. We must have regard to
sections 65,
96 and 168, for it is only these three provisions
that deal with the delivery of documentation under the Act. Section
65 is entitled
“Right to receive documents”. Subsections
(1) and (2) state:
“
(1)
Every document that is required to be delivered to a consumer in
terms of this Act must be delivered in the prescribed manner,
if any.
(2)
If no method has been prescribed for the delivery of a particular
document to a consumer, the person required to deliver that
document
must—
(a)
make the document available to the consumer through one or more of
the following mechanisms—
(i)
in person at the business premises of the credit provider, or at any
other location designated by the consumer but at the consumer’s

expense, or by ordinary mail;
(ii)
by fax;
(iii)
by email; or
(iv)
by printable web-page; and
(b)
deliver it to the consumer in the manner chosen by the consumer from
the options made available in terms of paragraph (a).
”
[39]
[28]
Section 96, entitled “Address for notice”,
reads:
“
(1)
Whenever a party to a credit agreement is required or wishes to give
legal notice to the other party for any purpose contemplated
in the
agreement, this Act or any other law, the party giving notice must
deliver that notice to the other party at—
(a)
the address of that other party as set out in the agreement, unless
paragraph (b) applies; or
(b)
the address most recently provided by the recipient in accordance
with subsection (2).
(2)
A party to a credit agreement may change their address by delivering
to the other party a written notice of the new address
by hand,
registered mail, or electronic mail, if that other party has provided
an email address.
”
[29]
Finally, section 168, entitled “Serving
documents”, states the following:
“
Unless
otherwise provided in this Act, a notice, order or other document
that, in terms of this Act, must be served on a person
will have been
properly served when it has been either—
(a)
delivered to that person; or
(b)
sent by registered mail to that person’s last known address.
”
[30]
Section 65 specifies that documents delivered
under the Act must be made available to the recipient through one or
more of a number
of enumerated mechanisms.  If the consumer has
chosen a particular mode of delivery from the enumerated options, the
document
must be delivered in accordance with that election.
Section 96 provides that legal notices must
be delivered to the address of the other party set out in the
agreement or to the address
most recently provided by the recipient
where she has given written notice of a change in the address set out
in the agreement.
Finally, section 168 specifies how notices,
orders and other documents under the Act are to be served where the
method of delivery
is not otherwise specified.
[31]
These
statutory provisions were comprehensively treated in
Sebola
[40]
and
I agree with what was stated there. For present purposes three
features merit emphasis. First, there is no general requirement
that
the notice be brought to the consumer’s subjective attention by
the credit provider, or that personal service on the
consumer is
necessary for valid delivery under the Act.
[41]
I
am minded to agree with the High Court that, had the legislation
meant either of these aspects to be a necessary condition for

delivery, express provision would have been made for them.
[42]
Thus,
while the section 129 obligation on the credit provider is to “draw
the default to the notice of the consumer in writing”,
this
obligation is discharged, in the words of section 65(2), by “[making]
the document available to the consumer”.
This accords
with section130(1)(b)(i), which provides that a credit provider may
seek to enforce its rights if a consumer has not
responded to a
section 129 notice. While a credit provider must take certain steps
to ensure that a consumer is adequately informed
of her rights, such
a credit provider cannot be non-suited or hamstrung if the consumer
unreasonably fails to engage with or make
use of the information
provided.  In other words, it is the use of an acceptable mode
of delivery – the taking of certain
steps to apprise the
consumer of the notice – which the statute requires of the
credit provider, not the bringing of the
contents of the section 129
notice to the consumer’s subjective attention.
[32]
Second, one of the acceptable modes of delivery is
by means of the postal service:
“
[W]here
the notice is posted, mere despatch is not enough. This is because
the risk of non-delivery by ordinary mail is too great.
Registered
mail is in my view essential. . . . But the mishap that afflicted the
Sebolas’ notice shows that proof of registered
despatch by
itself is not enough.  The statute requires the credit provider
to take reasonable measures to bring the notice
to the attention of
the consumer . . . . This will ordinarily mean that the credit
provider must provide proof that the notice
was delivered to the
correct post office.”
[43]
When
a consumer has elected to receive notices by way of post, the credit
provider’s obligation to deliver thus ordinarily
consists of
(a) respecting the consumer’s election; (b) undertaking the
additional expense of sending notices by way of registered
rather
than ordinary mail; and (c) ensuring that any notice is sent to the
correct branch of the Post Office for the consumer’s

collection.
[33]
Third, the steps that a credit provider must take in order to effect
delivery are those that would bring the section 129 notice
to the
attention of a reasonable consumer.
[44]
This
requirement is premised on the “especial importance” and
the “pivotal significance” of the notice
[45]
as
understood in the light of the Act’s objectives regarding
consumer protection. In order to give effect to that importance
and
achieve those objectives, the Legislature has elected to impose on
credit providers obligations that would not otherwise arise.
[46]
Indeed,
if “delivery” is interpreted to mean that a reasonable
consumer would still not receive the section 129 notice,
that
interpretation would undermine the Act’s “innovative
entrenchment of court-avoidant and settlement-friendly processes”
[47]
and
would only provide protection for exceptional consumers. As the Court
explained in
Sebola
,
for there to have been delivery under the Act it must be the case
that―
“
it
may reasonably be assumed . . . that notification of [the] arrival
[of the section 129 notice at the Post Office] reached the
consumer
and that a reasonable consumer would have ensured retrieval of the
item”.
[48]
[34]
I now consider the purpose of the section 129
notice and the obligations of a reasonable consumer. Section 129 aims
to establish
a framework within which the parties to the credit
agreement, in circumstances where the consumer has defaulted on her
obligations,
can come together and resolve their dispute without
expensive, acrimonious and time-consuming recourse to the courts.
However,
this form of dispute resolution is possible only if both
parties come to the table: the credit provider must avoid hasty
recourse
to litigation and the consumer must seek to rectify her
default in a reasonable and responsible manner.
[35]
If
the credit provider complies with the requirements set out in [31] to
[33] above and receives no response from the consumer within
the
period designated by the Act, I fail to see what more can be expected
of it. Certainly, the Act imposes no further hurdles
and the credit
provider is entitled to enforce its rights under the credit
agreement. It deserves re-emphasis that the purpose
of the Act is not
only to protect consumers, but also to create a “harmonised
system of debt restructuring, enforcement and
judgment,
which
places priority on the eventual satisfaction of all responsible
consumer obligations under credit agreements
.”
[49]
Indeed,
if the consumer has unreasonably failed to respond to the section 129
notice, she will have eschewed reliance on the consensual
dispute
resolution mechanisms provided for by the Act. She will not
subsequently be entitled to disrupt enforcement proceedings
by
claiming that the credit provider has failed to discharge its
statutory notice obligations.
[36]
As
set out earlier, even if the section 129 notice has been dispatched
by registered mail and the Post Office has delivered the
notification
to the consumer’s designated address, valid delivery will not
take place if the notice would nevertheless not
have come to the
attention of a reasonable consumer.
[50]
But
if the credit provider has complied with the requirements set out
above, it will be up to the consumer to show that the notice
did not
come to her attention and the reasons why it did not.
[37]
During the hearing counsel for Mr Kubyana asserted
that the notion of “the obligations of a reasonable consumer”
has
no basis in the Act. This simply is not so. Its roots lie in
section 3, which emphasises the importance of “responsible
borrowing”,
the “fulfilment of financial obligations by
consumers”, “discouraging . . . contractual default by
consumers”
and the “satisfaction of all responsible
consumer obligations”. It also draws from, among other things,
the notice
provisions of the Act.  In empowering a consumer to
decide on the manner in which she receives notices, sections 65(2)
and
96 impose a corollary obligation on her to do what is necessary
in order to take receipt of those notices in accordance with the

manner of delivery she has chosen.  Put simply, if the consumer
has elected to receive notices by way of registered mail,
she 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.
[38]
One of the main aims of the Act is to enable
previously marginalised people to enter the credit market and access
much needed credit.
Credit is an invaluable tool in our economy.
It must, however, be used wisely, ethically and responsibly. Just as
these obligations
of ethical and responsible behaviour apply to
providers of credit, so too to consumers.
It
is so that a credit provider will only have discharged its obligation
to effect delivery if the delivery would have resulted
in the section
129 notice being drawn to the attention of a reasonable consumer.
However, it is also the case that a consumer will
not be entitled to
rely on a credit provider’s alleged non compliance with section
129 if she has been unreasonably remiss
in failing to engage with the
notice. The notion of a “reasonable consumer” implies
obligations for both credit providers
and consumers.
Conclusion:
the obligation to deliver
[39]
In
sum, the Act does not require a credit provider to bring the contents
of a section 129 notice to the subjective attention of
a consumer.
Rather, delivery consists of taking certain steps, prescribed by the
Act, to apprise a reasonable consumer of the notice.
Thus, a credit
provider’s obligation may be to make the section 129 notice
available to the consumer by having it delivered
to a designated
address.
[51]
When
the consumer has elected to receive notices by way of the postal
service, the credit provider’s obligation to deliver
generally
consists of dispatching the notice by registered mail,
[52]
ensuring
that the notice reaches the correct branch of the Post Office for
collection
[53]
and
ensuring that the Post Office notifies the consumer (at her
designated address) that a registered item is awaiting her
collection.
[54]
This
is subject to the narrow qualification that, if these steps would not
have drawn a reasonable consumer’s attention to
the section 129
notice, delivery will not have been effected. The ultimate question
is whether delivery as envisaged in the Act
has been effected. In
each case, this must be determined by evidence.
[40]
The interpretation of “delivery” set
out in the preceding paragraph is consonant with the statutory
objectives of consumer
protection and consensual dispute resolution
in that it imposes obligations on the credit provider to ensure that
the consumer
is adequately informed of her statutory rights to seek
extra-curial assistance. It also reflects an appropriate balancing of
interests:
while the obligation to deliver the section 129 notice
rests on the credit provider, if the consumer acts unreasonably the
credit
provider may go ahead and seek enforcement of the credit
agreement notwithstanding the consumer’s failure to engage with
the contents of the notice.
Sebola
revisited: proof of delivery
[41]
I now move on to consider what a credit provider
must prove in order to satisfy a court that it has discharged its
obligation to
effect delivery of a section 129 notice to a consumer.
It is appropriate to begin with a discussion of this Court’s
judgment
in
Sebola
.
[42]
Sebola
concerned
an application for the rescission of a default judgment. Mr and Mrs
Sebola concluded a home loan agreement with Standard
Bank.
Approximately two years later they defaulted on their bond
repayments. Although Standard Bank dispatched a section 129 notice,

it was sent to the wrong branch of the Post Office. Standard Bank
thereafter issued summons against the couple for payment of the
full
outstanding amount due under the mortgage bond. Subsequently, the
Registrar of the High Court granted default judgment against
Mr and
Mrs Sebola. The Sebolas successfully appealed to this Court.
[55]
[43]
The majority judgment held:
(a)
The
Act does not require proof that the section 129 notice came to the
subjective attention of the consumer.
[56]
Instead, the Act requires the credit provider to “make
averments that will satisfy a court that the notice probably reached

the consumer”.
[57]
Indeed,
the Act must not be interpreted so as to impose obligations that are
“impossible to fulfil.”
[58]
(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;
(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 (as designated by the consumer), 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.
[59]
These principles are
consistent with what has been set out above regarding the nature of a
credit provider’s obligation to
deliver.
[44]
However, the majority judgment in
Sebola
contains broad language which could be
misconstrued.  Paragraph 79 of that judgment reads:
“
If,
in contested proceedings, the consumer asserts that the notice went
astray after reaching the post office, or was not collected,
or not
attended to once collected, the court must make a finding whether,
despite the credit provider’s proven efforts, the
consumer’s
allegations are true, and, if so, adjourn the proceedings in terms of
section 130(4)(b).”
And
at paragraph 87
:
“
If,
in contested proceedings the consumer avers that the notice did not
reach him or her, the court must establish the truth of
the claim. If
it finds that the credit provider has not complied with section
129(1), it must in terms of section 130(4)(b) adjourn
the matter and
set out the steps the credit provider must take before the matter may
be resumed.
”
[45]
Sebola
was
not concerned with contested enforcement proceedings during which
judgment was granted against consumers – it related
to the
Sebolas’ attempt to procure rescission of a default judgment.
Neither was there any suggestion of a failure by, or
culpability on
the part of, Mr and Mrs Sebola. The judgment was therefore not
concerned with a situation where the notice had been
validly
delivered by the credit provider, but then remained uncollected, or
unattended to, by the consumers. The statements quoted
above were
unnecessarily broad. To the extent that the judgment implies that a
credit provider will not have discharged its obligation
to effect
delivery because a consumer unreasonably fails to collect or attend
to a properly dispatched section 129 notice, it misstated
the law.
This is apparent from the excursus of the Act set out above, that (a)
a credit provider is under no obligation to bring
a section 129
notice to the subjective attention of a consumer and (b) a consumer
must respond reasonably when a credit provider
has properly sought to
bring such a notice to her attention. In a similar vein, and in
addition to acknowledging the importance
of a consumer’s
obligation to act reasonably,
[60]
the
majority judgment stated the following:
“
[T]he
statute does not demand that the credit provider prove that the
notice has actually come to the
attention
of the consumer, since that would ordinarily be impossible.
”
[61]
[46]
The Act does not imply, and cannot be interpreted
to mean, that a consumer may unreasonably ignore the consequences of
her election
to receive notices by registered mail, when the
notifications in question have been sent to the address which she
duly nominated.
While it is so that consumers should receive the full
benefit of the protections afforded by the Act, the noble pursuits of
that
statute should not be open to abuse by individuals who seek to
exercise those protections unreasonably or in bad faith.
[47]
Similarly to paragraphs 79 and 87 of
Sebola
,
paragraph 74 indicates that there is an obligation on the credit
provider to prove that the section 129 notice “in fact
reached
the consumer”.  This statement must be understood in the
light of
Sebola
’
s
attempt to prescribe a method of fact determination for courts faced
with applications for default judgment and to indicate which
factual
inferences may be drawn in a situation where factual sources are
few.  However, as shown, any notion that the Act
requires a
credit provider to ensure that, as a matter of fact, the section 129
notice definitely reached the consumer is misconceived.
[48]
It
is so that section 96(1) requires that notices be delivered “at
the address” provided by the recipient. However,
this
requirement must be understood with due regard to the practical
aspects of dispatching a notice by way of registered mail.
When
a credit provider dispatches a notice in that manner, the notice is
sent to a particular branch of the Post Office.  That
branch
then sends a notification to the consumer, indicating that a
registered item is available for collection.  It is never
the
case that an item dispatched by registered mail will physically be
delivered to an individual – such delivery only occurs
if the
item is sent by ordinary mail, which does not suffice for purposes of
sections 129 and 130 of the Act.
[62]
If
a consumer elects not to respond to the notification from the Post
Office, despite the fact that she is able to do so, it does
not lie
in her mouth to claim that the credit provider has failed to
discharge its statutory obligation to effect delivery.
Clarification
of the phrase “contrary indication”
[49]
A final aspect of
Sebola
requires clarification.  Much was made by
counsel of the notion of a “contrary indication”:
“
The
credit provider’s summons or particulars of claim should allege
that the [section 129] 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 reached the consumer and that a reasonable consumer
would
have ensured retrieval of the item from the post office.”
[63]
(Emphasis
added).
[50]
Mr Kubyana avers that as soon as there is a
“contrary indication” showing, as a matter of fact, that
the section 129
notice did not come to the subjective attention of
the consumer, that suffices to show that the requirements of section
129 have
not been met. Moreover, he contends that when a section 129
notice is returned to the credit provider uncollected,
notwithstanding
the fact that it was sent to the correct branch of
the Post Office and the fact that the Post Office sent a notification
to the
consumer’s address that a registered item was awaiting
collection, such a return constitutes a “contrary indication”.
[51]
This argument cannot be sustained. It is premised
on the notion that a credit provider is under an obligation to bring
a section
129 notice to the subjective attention of the consumer,
which is not the case. It fails to appreciate that, if the purpose of
consensual
dispute resolution is to be achieved, a consumer must act
responsibly when notified of her default – the credit provider
does not bear sole responsibility for ensuring that the objective
underlying section 129 is achieved. And it does not account for
the
responsibilities of a reasonable consumer: the Act does not allow a
consumer to ignore, or unreasonably fail to respond to,
notifications
from the Post Office and thereby stave off enforcement proceedings by
a credit provider.
[52]
Mr Kubyana’s argument is also based on a
misreading of
Sebola
.
The “contrary indication” requirement applies to two
inferences that a court may make: the inference that the notification

from the Post Office (indicating that a registered item is available
for collection) reached the consumer and the inference that
a
reasonable consumer would have responded to that notification and
retrieved the notice. The first inference is based on the reasonable

assumption that when a credit provider has dispatched a notice by
means of registered post, has specified the correct address for
the
consumer and has ensured that the notice is delivered to the correct
branch of the Post Office, the notification calling on
the consumer
to collect a registered item will be delivered to her address.
A contrary indication would be a factor showing
that, in the
circumstances and despite the credit provider’s efforts, the
notification did not reach the consumer’s
designated address.
The second inference is based on the assumption that a consumer
acting reasonably would, having received
the notification from the
Post Office to retrieve a registered item, proceed to collect the
notice. In these circumstances a contrary
indication would be a
factor showing that the consumer acted reasonably in failing to
collect or attend to the notice, despite
the delivery of the
notification to her address.
[53]
Once a credit provider has produced the track and
trace report indicating that the section 129 notice was sent to the
correct branch
of the Post Office and has shown that a notification
was sent to the consumer by the Post Office, that credit provider
will generally
have shown that it has discharged its obligations
under the Act to effect delivery. The credit provider is at that
stage entitled
to aver that it has done what is necessary to ensure
that the notice reached the consumer.  It then falls to the
consumer
to explain why it is not reasonable to expect the notice to
have reached her attention if she wishes to escape the consequences

of that notice. And it makes sense for the consumer to bear this
burden of rebutting the inference of delivery, for the information

regarding the reasonableness of her conduct generally lies solely
within her knowledge. In the absence of such an explanation the

credit provider’s averment will stand.  Put differently,
even if there is evidence indicating that the section 129 notice
did
not reach the consumer’s attention, that will not amount to an
indication disproving delivery if the reason for non-receipt
is the
consumer’s unreasonable behaviour.
Conclusion:
proof of delivery of a section 129 notice
[54]
The Act prescribes obligations that credit
providers must discharge in order to bring section 129 notices to the
attention of consumers.
When delivery occurs through the postal
service, proof that these obligations have been discharged entails
proof that—
(a)
the section 129 notice was sent via registered
mail and was sent to the correct branch of the Post Office, in
accordance with the
postal address nominated by the consumer. This
may be deduced from a track and trace report and the terms of the
relevant credit
agreement;
(b)
the Post Office issued a notification to the
consumer that a registered item was available for her collection;
(c)
the Post Office’s notification reached the
consumer. This may be inferred from the fact that the Post Office
sent the notification
to the consumer’s correct postal address,
which inference may be rebutted by an indication to the contrary as
set out in
[52] above; and
(d)
a reasonable consumer would have collected the
section 129 notice and engaged with its contents. This may be
inferred if the credit
provider has proven (a)-(c), which inference
may, again, be rebutted by a contrary indication: an explanation of
why, in the circumstances,
the notice would not have come to the
attention of a reasonable consumer.
Did
Standard Bank comply with section 129 of the Act?
[55]
We are presently concerned with contested
proceedings where the dispute was fully ventilated at trial. All the
relevant information
on which the parties elected to rely was placed
before the High Court. From that information it is apparent that
Standard Bank
sent the section 129 notice via registered mail to the
branch of the Post Office nominated by Mr Kubyana, and the Post
Office sent
two notifications to Mr Kubyana’s designated
address indicating that a registered item was awaiting his
collection. There
was and remains no denial that he received the
notifications. In the absence of any explanation from him, we may
therefore reasonably
assume that the notifications from the Post
Office reached his attention. Mr Kubyana’s case is only that he
did not collect
the section 129 notice. He did not give evidence at
trial to substantiate this assertion.
[56]
It is sufficient to bring the section 129 notice
to a consumer’s attention for that consumer to have agreed to
receive the
notice by way of registered mail and then to receive a
notification that a registered item is awaiting her attention. This
is the
case unless a reasonable consumer would not, in the
circumstances, have taken receipt of the notice.
[57]
But this defence cannot avail Mr Kubyana, for he
elected neither to testify nor to provide an explanation for why he
did not respond
to the notifications from the Post Office.  That
being the case, there is no basis upon which we can determine that,
notwithstanding
Standard Bank’s efforts, it was reasonable for
Mr Kubyana not to have taken receipt of the section 129 notice.
And
it must be remembered that the defence is a narrow one: it would
apply only if Mr Kubyana were able to prove that, despite the credit

provider’s attempts at delivery, a reasonable consumer in his
position would not have collected the notice or responded to
it. In
the result, Standard Bank did all that was required of it by the Act.
To hold it to a higher standard would be to impose
an excessively
onerous standard of performance.
[58]
Standard Bank has thus complied with the
requirements contained in section 129 of the Act.  It was
entitled to commence
legal proceedings and to enforce its claims
under the instalment sale agreement when it did. There is therefore
no basis to interfere
with the order of the High Court.
The
access to information argument
[59]
This argument, too, must fail. Even if we accept
that section 32 of the Constitution is of application in this case,
for the reasons
set out above there is nothing before us to indicate
that Standard Bank did not do what was required by law in order to
provide
Mr Kubyana with information regarding his default and his
statutory rights. The appeal therefore fails.
Costs
[60]
At
the hearing counsel for Standard Bank, when pressed by the Bench,
agreed to leave the question of costs in the hands of the Court.
Mr
Kubyana has not been successful in this Court. I am also mindful of
the fact that at least some of the grounds on which he sought
to
appeal the High Court’s decision were spurious.
[64]
That being said, this judgment represents a clarification of the law
which is important not only to consumers but also to providers
of
credit, including Standard Bank. I therefore consider it just and
equitable to make no order as to costs.
Order
[61]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
3.
There is no order as to costs.
JAFTA
J (Moseneke ACJ, Cameron J, Dambuza AJ, Madlanga J, Nkabinde J, Van
der Westhuizen J and Zondo J concurring):
[62]
I
have read the judgment prepared by my Colleague Mhlantla AJ (main
judgment).  While I agree with much of what it says and
the
order proposed, I have decided to write separately on the
interpretation of section 129(1) of the Act and provide further
clarification on the judgment of this Court in
Sebola
.
[65]
[63]
It
has become necessary for this Court to clarify its judgment in
Sebola
due
to the confusion that has ensued as a result of conflicting
interpretations of the
Sebola
judgment
by various courts.
[66]
In
Binneman
,
the Western Cape High Court held that
Sebola
has
not changed the legal position proclaimed by the Supreme Court of
Appeal in
Rossouw
.
[67]
In
that case the Supreme Court of Appeal had held that the delivery
requirement envisaged in section 129(1) would be satisfied if
the
credit provider dispatched the notice by registered mail to the
consumer.
[68]
[64]
But
the KwaZulu-Natal High Court in
Mkhize
came
to the opposite conclusion.
[69]
The
Court held that
Sebola
had
overruled
Rossouw
in
that it considered the dispatch of the notice by registered mail to
be insufficient proof of delivery. Instead,
Sebola
required
that a further step, namely, that the registered mail reached the
correct local Post Office of the consumer, be established.
[65]
In
Balkind
,
the Eastern Cape High Court agreed that
Sebola
altered the position stated in
Rossouw
.
In
Balkind
the
High Court said:
“
Effectively,
Sebola
held
that dispatch of the notice by registered post is not enough; more is
required. It concluded that proof by means of the post
office ‘track
and trace’ report that the registered post reached the correct
post office, would constitute proper delivery
of the notice to the
consumer as contemplated by section 129.”
[70]
[66]
Before determining which of the interpretations
given to
Sebola
is
correct, I must consider the relevant provisions. Section 129(1)
provides:
“
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.”
[67]
The text of this section reveals that in the event
of the consumer being in default of her repayments of the loan, the
credit provider
is obliged to draw the default to the attention of
the consumer. The section prescribes that the notice given to the
consumer must
be in writing. It further stipulates what the notice
must contain. The notice must propose the options available to the
consumer
who is in financial distress and unable to purge the
default.  It must point out that, at the election of the
consumer, the
credit agreement may be referred to a debt counsellor,
dispute resolution agent, consumer court or ombud. The purpose of the
referral
must also be stated in the notice.
[68]
The purpose of the referral is to resolve whatever
disputes may have arisen from the credit agreement and also to agree
on a plan
to cure the default and bring the payments up to date.
Furthermore, the section makes reference to section 130 which
governs
the institution of litigation for enforcing credit
agreements. Section 129(1) lays down two conditions which must be met
before
the credit provider may institute litigation. In peremptory
terms, the section declares that legal proceedings to enforce the
agreement
may not commence before—
(a)
first providing notice to the consumer; and
(b)
meeting further requirements set out in section
130.
[69]
The reference to section 130 divulges a strong
link between the two sections, hence they are required to be read
together for a
proper understanding of their scheme. As I see it, the
application of these sections is triggered by the consumer’s
failure
to repay the loan. These sections suspend the credit
provider’s rights under the credit agreement until certain
steps have
been taken.
[70]
The credit provider is not entitled immediately to
exercise its rights under the agreement. It is first required to
notify the consumer
of the default and demand that the arrears be
paid. If the consumer pays up the arrears, then the dispute is
settled. But it may
so happen that the default is occasioned by the
consumer’s financial difficulties. In that event, instead of
enforcing the
agreement, the credit provider must afford the consumer
an opportunity to refer the agreement to one of the bodies listed in
section
129(1)(a).
[71]
The opportunity for referral is a prelude to
litigation. If the consumer makes use of this opportunity, the
dispute relating to
the default and the credit agreement are
submitted to a debt counsellor, if the consumer so chooses. The debt
counsellor helps
the parties to reach agreement on how the loan would
be repaid and the arrears cleared. This may be achieved by
re-arranging the
terms of the credit agreement. If this happens, the
credit provider loses the right to enforce the original credit
agreement arising
from the consumer’s default.
[72]
However, in many cases, as is the position here,
consumers do not take up the opportunity to refer the dispute. Once
that happens,
the credit provider becomes free to enforce the credit
agreement in the ordinary courts. But the credit provider’s
enforcement
of the agreement is subject to conditions stipulated in
sections 129 and 130. Section 130(1) provides:
“
Subject
to subsection (2), a credit provider may approach the court for an
order to enforce a credit agreement only if, at that
time, the
consumer is in default and has been in default under that credit
agreement for at least 20 business days and—
(a)
at least 10 business days have elapsed since the
credit provider delivered a notice to the consumer as contemplated in
section 86(9),
or section 129(1), as the case may be;
(b)
in the case of a notice contemplated in section
129(1), the consumer has—
(i)
not responded to that notice; or
(ii)
responded to the notice by rejecting the credit
provider’s proposals; and
(c)
in the case of an instalment agreement, secured
loan, or lease, the consumer has not surrendered the relevant
property to the credit
provider as contemplated in section 127.”
[73]
It
is apparent from the language of section 130(1) that a credit
agreement to which the Act applies may be enforced only if the

requirements laid down in that section are met. This is irrespective
of any stipulation to the contrary in the agreement itself
or another
law.
[71]
When
a credit provider seeks to enforce the agreement by means of
litigation, it must first show compliance with section 130, which,
by
extension, refers back to section 129.
[74]
The first requirement is that the consumer has
been in default for at least 20 business days. Furthermore, a minimum
of 10 business
days from the date of delivery of the notice to the
consumer must have lapsed. And the consumer must have failed to
respond to
the notice within the period of 10 business days or
responded by rejecting the credit provider’s proposals. In the
case of
a lease, secured loan or an instalment agreement, the
additional requirement is that the consumer must have failed to
surrender
the relevant property to the credit provider.
[75]
Delivery of the notice is one of the requirements
of section 130. The date on which the delivery has occurred is
crucial to the
calculation of the 10 business days within which the
consumer is expected to respond. In this regard, therefore, the
meaning of
the words “delivered a notice to the consumer”
is critical to the application of the section. The Act does not
define
the word “delivered”. Consequently, it must be
given its ordinary meaning.
[76]
The Concise Oxford English Dictionary states that
“deliver” means “bring and hand over (a letter or
goods); provide
something (promised or expected); launch or aim (a
blow or attack); state or present in a formal manner; assist in the
birth of;
and save or set free”. Of the various meanings, it
seems to me that only the first one is relevant to the context in
which
the word is used in section 130.
[77]
It
is a fundamental principle of interpretation that words used in a
statute or written document must be construed in their proper

context.
[72]
In
Bato
Star
this
Court held that “the technique of paying attention to context
in statutory construction is now required by the Constitution.”
[73]
The Court said:
“
It
is no doubt true that it is a primary rule of statutory construction
that words in a statute must be given their ordinary grammatical

meaning. But it is also a well known rule of construction that words
in a statute should be construed in the light of their context.”
[74]
[78]
The
process of interpretation, I emphasise, does not involve a
consideration of facts. Matters of evidence do not come into the

equation. This is so because statutory construction is an objective
process, with no link to any set of facts but in terms of which
words
used in a statute are given a general meaning that applies to all
cases, falling within the ambit of the statute.
[75]
[79]
The
word “deliver” is commonly used in our law, particularly
in the field of contracts and service of court process.
In its common
sense, deliver means bringing or taking something to a recipient. For
example, if a contract of sale requires the
seller to deliver a motor
vehicle to the purchaser, it is construed to mean that the seller has
to take the vehicle to the purchaser.
For delivery to take place, it
does not follow that the vehicle must have been handed over to the
purchaser in person.
[76]
Depending on the circumstances of the case, taking the vehicle to the
purchaser’s address may constitute delivery. But the
actual
taking of the vehicle would constitute factual proof of what was
done. And this is a matter of evidence and not interpretation.
[80]
It seems to me that in the context of section
130(1) read with section 129(1), delivered means taking a notice to
the consumer.
As long as steps taken show on a balance of
probabilities that the notice is likely to have reached the consumer,
the court before
which the proceedings are brought may be satisfied
that the notice was delivered.
[81]
In
delivering the notice, the credit provider may follow any method.
This is so because sections 130(1) and 129(1) do not specify
a
particular method of delivery. All that they require is that the
notice be delivered. If a particular method is chosen, whatever
is
done must constitute adequate proof that the notice has reached the
consumer. If, for example, the credit provider has chosen
to send the
notice by ordinary post, proof of the letter reaching the consumer’s
address would ordinarily constitute delivery
contemplated in the
relevant sections. These facts would give rise to the presumption
that the notice reached the consumer. This
type of presumption is
recognised in our law.
[77]
[82]
But if, in defending the action instituted by the
credit provider, the consumer establishes that at the relevant time
she was lying
unconscious in hospital, the credit provider would have
failed to prove delivery and therefore the court would not be
satisfied
that the notice reached the consumer.  Absent an
explanation of that nature, the court may be satisfied, on a balance
of probabilities,
that the notice reached the consumer. But, as
mentioned earlier, the enquiry here would be directed at establishing
proof of delivery
and not the meaning of the word.
[83]
In
the case of registered mail, the delivery of the notice to the
consumer’s local Post Office, coupled with sending notification

to her address, may in appropriate cases be regarded as constituting
compliance with the delivery requirement. A consumer who receives

notification from the local Post Office but decides not to collect
the notice should not be permitted to frustrate the purpose
of the
provisions while, at the same time, the credit provider is precluded
from enforcing its rights under the contract. In such
a case, a court
may as well hold that there was a fictional fulfilment of the
requirement. Our courts are familiar with this concept
which applies
where, for example, a party to a contract deliberately frustrates the
fulfilment of a condition, so that the other
party cannot enforce its
rights.
[78]
[84]
It is apparent from section 130(3) that it is the
court before which the proceedings are instituted which must be
satisfied that,
among other matters, the notice has reached the
consumer.  Section 130(3) provides:
“
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 the court 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”.
[85]
If
the court is not satisfied that the section 129 notice was delivered
to the consumer, it is obliged to adjourn the proceedings
and specify
steps to be taken by the credit provider before resuming the hearing
of the matter.
[79]
This
illustrates that enforcement of the credit agreement through
litigation is suspended for as long as the credit provider has
not
complied with the requirements of the relevant sections.
Present
facts
[86]
The facts are set out in detail in the main
judgment. On 16 July 2010 Standard Bank sent a section 129 notice by
registered mail
to Mr Kubyana. The notice reached his local Post
Office which, in turn, sent out a notification to the address
nominated by him
as his domicilium. The first notification was sent
to his address on 20 July 2010 but he failed to collect the
registered mail.
Seven days later, a second notification was
dispatched to his address. Again he failed to collect the mail. On 1
September 2010
the notice was returned to the Bank.
[87]
Mr Kubyana did not contest the correctness of
these facts by way of evidence in the High Court. That Court
approached the matter
on the footing that Mr Kubyana received
notification of the registered mail but failed to collect it. The
Court held that there
was compliance with the relevant provisions.
[88]
Mr Kubyana’s failure to testify and explain
why he did not collect the notice drives one to the inescapable
conclusion that
he deliberately failed to collect it. He cannot be
allowed to frustrate the objects of the Act. The relevant provisions
were enacted
to protect honest consumers who, for some reason, find
themselves in dire financial straits. As indicated earlier, the
object of
the relevant provisions is not to exempt consumers from
their contractual obligations but to afford them the opportunity to
renegotiate
the terms of the credit agreement in relation to payment
of the debt.
[89]
A balance must be struck between the rights of the
consumer and those of the credit provider when applying sections 129
and 130.
The offer of credit is crucial to the economy of this
country. Without it the majority of people would not afford to buy
houses
and other assets necessary to human life. Therefore, the
collapse of the system would be detrimental to the country’s
economy
and the majority of its people.
[90]
In these circumstances, I agree that the appeal
must fail.
The
judgment in Sebola
[91]
As mentioned, conflicting interpretations have
been given to the judgment of this Court in
Sebola
.
As a result, uncertainty has been created as to what section 129
means and what it requires credit providers to do to comply,
if they
wish to enforce credit agreements by legal proceedings. As observed
in the main judgment, this case presents an opportunity
for this
Court to clarify its judgment in
Sebola
.
In doing so it is necessary to draw a distinction between
interpretation, on the one hand, and evidential material to prove
compliance
with the section, on the other.
The
meaning of section 129 as construed in Sebola
[92]
This Court in
Sebola
read section 129(1) together with section 130(1).
In section 130 the word “delivered” is used and this
section refers
back to section129 which employs the words “providing
notice to the consumer”. While section 130 requires that a
notice
must be delivered to the consumer, section 129 stipulates that
the consumer be provided with a notice. The common object of these

sections is to prevent the commencement of legal proceedings before
the steps defined in section 129 have been taken.
[93]
It was in this context that this Court construed
section 129 to mean that the credit provider must furnish the
consumer with a notice.
A perusal of a number of paragraphs suggests
that
Sebola
interpreted
section 129 to mean that the notice should reach the consumer and not
that it actually came to her attention. A reference
to two paragraphs
illustrates this point.
[94]
In one paragraph, the majority said:
“
These
considerations drive me to conclude that the meaning of ‘deliver’
in section 130 cannot be extracted by parsing
the words of the
statute. It must be found in a broader approach – by
determining what a credit provider should be required
to establish,
on seeking enforcement of a credit agreement, by way of proof that
the
section
129 notice in fact reached the consumer. As pointed out earlier, the
statute does not demand that the credit provider prove
that the
notice has actually come to the attention of the consumer, since that
would ordinarily be impossible.
Nor
does it demand proof of delivery to an actual address.  But
given the high significance of the section 129 notice, it seems
to me
that the credit provider must make averments that will satisfy the
court from which enforcement is sought that the notice,
on balance of
probabilities, reached the consumer.”
[80]
(Emphasis
added.)
[95]
And later the majority summed up its
interpretation in these terms:
“
To
sum up: The requirement that a credit provider provide notice in
terms of section 129(1)(a) to the consumer must be understood
in
conjunction with section130, which requires delivery of the notice.
The
statute, though giving no clear meaning to ‘deliver’,
requires that the credit provider seeking to enforce a credit

agreement aver and prove that the notice was delivered to the
consumer.
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 consumer,
will in the absence of contrary indication constitute
sufficient
proof of delivery. If, in contested proceedings the consumer avers
that the notice did not reach him or her, the court
must establish
the truth of the claim. If it finds that the credit provider has not
complied with section 129(1), it must in terms
of section 130(4)(b)
adjourn the matter and set out the steps the credit provider must
take before the matter may be resumed.”
[81]
(Emphasis
added.)
[96]
As shown earlier, the dispatching of a notice by
registered mail, and showing that it has reached the correct Post
Office, are facts
which do not form part of the interpretation. As
facts, ordinarily they are peculiar to certain cases and not
universal to all
cases in which the Act finds application. But the
interpretation is universal. The section carries the same meaning in
all cases.
[97]
Therefore, the ratio of
Sebola
,
as I see it, is that the words “providing notice to the
consumer” are synonymous with the phrase “delivered
a
notice to the consumer”, which appears in section 130.
Both of them mean that the notice must be taken to the consumer.
It
must reach the consumer but this does not mean that the notice must
actually be viewed by the consumer.
Proof
of delivery
[98]
The determination of the facts that would
constitute adequate proof of delivery of a notice in a particular
case must be left to
the court before which the proceedings are
launched. It is that court which must be satisfied that section 129
has been followed.
Therefore, it is not prudent to lay down a general
principle save to state that a credit provider must place before the
court facts
which show that the notice, on a balance of
probabilities, has reached a consumer. This is what
Sebola
must be understood to state. It follows that the
interpretation of
Sebola
in
Binneman
was
incorrect.
[99]
While it is true that in the quoted paragraphs the
majority went to the extent of saying that, where delivery is by
registered mail,
proof of the fact that the notice reached the
correct Post Office would constitute compliance, that is not part of
the ratio. The
facts in
Sebola
were different in that the notice was sent to the
wrong Post Office. Consequently, it was not necessary for this Court
to determine
whether in circumstances where the notice has reached
the correct Post Office, nothing more needs be proved to show that,
on a
balance of probabilities, the notice has reached the consumer.
The view expressed there was obiter. What is binding in
Sebola
is the interpretation given to section 129. That
interpretation is endorsed in this judgment.
[100]
It is for these reasons that I concur in the order
proposed by the main judgment.
For
the Applicant:
Advocate
S Wilson instructed by
Tswago
Inc Attorneys.
For
the Respondent:
Advocate
S Budlender and Advocate J Ferreira
instructed
by Norton Rose Fulbright South Africa.
For
the Amicus Curiae:
Advocate
S Wilson
instructed
by SERI-SA Law Clinic.
[1]
34
of 2005 (Act).
[2]
That
is, an address for the purposes of being cited in litigation and for
the execution of legal process.
[3]
During
oral argument counsel for Mr Kubyana contended that Standard Bank’s
calls to Mr Kubyana went unanswered.  It
is apparent from the
record that this is incorrect.
[4]
That
provision is set out in [23] below.  In essence it requires a
credit provider to notify a consumer who is in default
of her rights
under the Act before commencing legal proceedings to enforce the
relevant credit agreement against that consumer.
[5]
This
is a document, available from the Post Office, which indicates when
a registered item arrives at a particular branch of the
Post Office
for collection by the intended recipient.  It also indicates
whether the item was collected or returned to the
sender.
[6]
Standard
Bank of South Africa Ltd v Kubyana
[2012]
ZAGPPHC 259 (High Court judgment) at paras 34-5.
[7]
Id
at paras 31-2 and 34-5.
[8]
Subsections
(4) and (5) thereof read as follows:
“
(4)
If the credit provider proposes to the consumer the purchase of a
particular policy of credit insurance as contemplated in
subsection
(1) or (3)—
(a)
the consumer must be given, and be informed of, the right to waive
that proposed policy and substitute a policy of the consumer’s

own choice, subject to subsection (6);
(b)
such policy must provide for payment of premiums by the consumer—
(i)
on a monthly basis in the case of small and intermediate agreements;
or
(ii)
on a monthly or annual basis in the case of large agreements, for
the duration of the credit agreement; and
(c)
in the case of an annual premium the premium must be recovered from
the consumer within the applicable year.
(5)
With respect to any policy of insurance arranged by a credit
provider as contemplated in subsection (4), the credit provider

must―
(a)
not add any surcharge, fee or additional premium above the actual
cost of insurance arranged by that credit provider;
(b)
disclose to the consumer in the prescribed manner and form―
(i)
the cost to the consumer of any insurance supplied; and
(ii)
the amount of any fee, commission, remuneration or benefit
receivable by the credit provider, in relation to that insurance;
(c)
explain the terms and conditions of the insurance policy to the
consumer and provide the consumer with a copy of that policy;
and
(d)
be a loss payee under the policy up to the settlement value at the
occurrence of an insured contingency only and any remaining
proceeds
of the policy must be paid to the consumer.
”
[9]
The
section, entitled “Access to courts”, reads as follows:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[10]
SERI
is a non-profit company.  It provides socio-economic rights
assistance to individuals, communities and social movements
in South
Africa.  It also has a history of engaging on issues concerning
the Act.  See, for example, its contribution
in
Sebola
below
n 11 at paras 23, 47-8, 51 and 54.
[11]
Sebola
and Another v Standard Bank of South Africa Ltd and Another
[2012]
ZACC 11
;
2012 (5) SA 142
(CC);
2012 (8) BCLR 785
(CC) (
Sebola
).
[12]
In
other words, such a return constitutes a “contrary indication”
as envisaged in
Sebola
above
n 11 at para 77.  I deal with this concept more fully in
[49]-[53] below.
[13]
That
provision is set out in full in [25] below.  In essence it
requires a court hearing an application for the enforcement
of a
credit agreement to adjourn proceedings if a credit provider has
failed to comply with sections 127, 129 or 131 of
the Act.
The adjournment is granted to allow the credit provider time to
rectify its failure before it may enforce the
debt.
[14]
Section
8(3) reads as follows:
“
When
applying a provision of the Bill of Rights to a natural or juristic
person in terms of subsection (2), a court—
(a)
in order to give effect to a right in the Bill, must apply, or if
necessary develop, the common law to the extent that legislation

does not give effect to that right; and
(b)
may develop rules of the common law to limit the right, provided
that the limitation is in accordance with section 36(1).”
Section
32, entitled “Access to information”, reads as follows:
(1)
Everyone has the right of access to—
(a)
any information held by the state; and
(b)
any information that is held by another person and that is required
for the exercise or protection of any rights.
(2)
National legislation must be enacted to give effect to this right,
and may provide for reasonable measures to alleviate the

administrative and financial burden on the state.”
Section
39(2) reads as follows:
“
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.”
[15]
2
of 2000 (PAIA).
[16]
See
section 167(3)(b)(i) read with section 167(6) of the Constitution.
See also
AllPay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer of the South African Social Security Agency
and
Others
[2013]
ZACC 42
at para 4 and
Minister
of Local Government, Environmental Affairs and Development Planning
of the Western Cape v Lagoonbay Lifestyle Estate
(Pty) Ltd and
Others
[2013]
ZACC 39
at para 22.
[17]
Sebola
above
n 11 at para 36.
[18]
Id
at para 34.
[19]
ABSA
Bank Ltd v Mkhize and Another; ABSA Bank Ltd v Chetty; ABSA Bank Ltd
v Mlipha
[2013]
ZASCA 139
;
Balkind
v ABSA Bank
[2012]
ZAECGHC 102;
2013 (2) SA 486
(ECG);
ABSA
Bank Ltd v Petersen
[2012]
ZAWCHC 168
;
2013 (1) SA 481
(WCC);
ABSA
Bank Ltd v Mkhize and Another and Two Similar Cases
[2012]
ZAKZDHC 38;
2012 (5) SA 574
(KZD); and
Nedbank
Ltd v Binneman and Thirteen Similar Cases
[2012]
ZAWCHC 141; 2012 (5) SA 569 (WCC).
[20]
See
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
[2008]
ZACC 12
;
2009 (1) SA 337
(CC);
2008 (11) BCLR 1123
(CC) at para 61
and
Mistry
v Interim Medical and Dental Council of South Africa and Others
[1998]
ZACC 10
;
1998 (4) SA 1127
(CC);
1998 (7) BCLR 880
(CC) at paras
17-8.
[21]
Section
2(1) states that “[t]his Act must be interpreted in a manner
that gives effect to the purposes set out in section
3.”
I set out those purposes in [19]-[21] below.
[22]
See
generally
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004]
ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC).
[23]
In
S
v Zuma and Others
[1995]
ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) Kentridge AJ,
at
paras 17-8, stated:
“
I
am well aware of the fallacy of supposing that general language must
have a single ‘objective’ meaning.  Nor
is it easy
to avoid the influence of one’s personal intellectual and
moral preconceptions.  But it cannot be too strongly
stressed
that the Constitution does not mean whatever we might wish it to
mean.
We
must heed Lord Wilberforce’s reminder that even a constitution
is a legal instrument, the language of which must be respected.

If the language used by the lawgiver is ignored in favour of a
general resort to ‘values’ the result is not
interpretation
but divination.”
While
these remarks referred to constitutional interpretation, they apply
even more forcefully in relation to statutory interpretation

generally.  See also
Investigating Directorate: Serious
Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd
and Others: In re Hyundai
Motor Distributors (Pty) Ltd and Others v
Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000
(10) BCLR 1079
(CC) at paras 23-4 and 26.
[24]
Above
n 11 at paras 38-42.
[25]
Section
3 of the Act.
[26]
In
express terms section 3 states that the aforementioned purposes are
to be achieved by developing a credit market that is accessible
to
those for whom it has been historically inaccessible (section 3(a)),
discouraging the provision of reckless credit by credit
providers
(section 3(c)(ii)) and correcting prevailing disparities in
negotiating power between consumers and credit providers
(section
3(e)).  See
Sebola
above
n 11 at paras 38 40.
[27]
Section
3(c) of the Act.
[28]
Id
section 3(c)(i).
[29]
Id
section 3(c)(ii).
[30]
Id
section 3(i).  See
Sebola
above
n 11 at para 40.
[31]
Section
3(d) of the Act.  See
Sebola
above
n 11 at para 40.
[32]
The
text of subsection (1) is set out in [23] below.
[33]
For
example, seeking the assistance of a debt counsellor with a view to
debt restructuring, or seeking recourse to a consumer
ombud for the
non-litigious resolution of any dispute with the credit provider.
[34]
Above
n 11 at para 46.  In support of this conclusion Cameron J
relied on section 3(h) of the Act, which states that one
of the
means of achieving the purposes of the Act is the provision of “a
consistent and accessible system of consensual
resolution of
disputes arising from credit agreements
”
.
[35]
See
Sebola
above
n 11 at para 45.
[36]
Although
this is subject to a proviso contained in section 130(2) of the Act,
that proviso is not relevant for purposes of this
case.
[37]
Above
n 11 at para 52.
[38]
Id
at paras 55-6.  At para 53 Cameron J concluded that “[s]ection
129 prescribes
what
a
credit provider must prove (notice as contemplated) before judgment
can be obtained, while section 130 sets out
how
this
can be proved (by delivery).”  (Emphasis in original.)
[39]
Section
65(1) does not assist us, for “prescribed” means
“prescribed by regulation” and the regulations

promulgated under the Act are of no assistance with regard to the
delivery of section 129 notices.  See
Sebola
above
n 11 at para 62.
[40]
Above
n 11 at paras 62-72.
[41]
Id
at para 74.
[42]
See
the High Court judgment above n 6 at para 27.
[43]
Sebola
above
n 11 at para 75.
[44]
Id
at paras 75 and 77.
[45]
Id
at paras 70 and 73.
[46]
For
example, the common law of contract does not prescribe that all
notices sent in relation to an agreement, in order to have
been
validly delivered, must be sent by way of registered mail.  See
Sebola
above
n 11 at paras 82-3.
[47]
Sebola
above
n 11 at para 72.
[48]
Id
at para 77.
[49]
Section
3(i) of the Act.  (Emphasis added.)
[50]
See
Sebola
above
n 11 at para 77.
[51]
Sections
65(2) and 96(1) of the Act.
[52]
Id
section 168(b).
[53]
Sebola
above
n 11 at paras 75 and 77.
[54]
Id.
[55]
Id
at paras 4-10.
[56]
Id
at para 74.
[57]
Id
at para 75.
[58]
Id
at para 57.
[59]
Id
at paras 77 and 87.
[60]
Id
at para 77.
[61]
Id
at para 74.
[62]
Id
at para 68.
[63]
Id
at para 77.  See also para 87.
[64]
I
have in mind the allegation that his trial was unfair, which, from
the record, appears to be wholly unfounded and completely

opportunistic.
[65]
Sebola
and Another v Standard Bank of South Africa Ltd and Another
[2012]
ZACC 11
;
2012 (5) SA 142
(CC);
2012 (8) BCLR 785
(CC) (
Sebola
).
[66]
Nedbank
Ltd v Binneman and Thirteen Similar Cases
[2012]
ZAWCHC 121
;
2012 (5) SA 569
(WCC);
ABSA
Bank Ltd v Mkhize and Another and Two Similar Cases
[2012]
ZAKZDHC 38;
2012 (5) SA 574
(KZD) (
Mkhize
);
and
Balkind
v ABSA Bank, In re ABSA Bank Ltd v Ilifu Trading 172 CC and Others
[2012]
ZAECGHC 102; 2013 (2) SA 486 (ECG).
[67]
Rossouw
and Another v First Rand Bank Ltd t/a FNB Homeloans (Formerly First
Rand Bank of South Africa Ltd)
[2010]
ZASCA 130
;
2010 (6) SA 439
(SCA) (
Rossouw
).
[68]
Id
at para 32.
[69]
Mkhize
above
n 66 at para 50.
[70]
Balkind
above
n 66 at para 12.
[71]
Section
130(3), the text of which is quoted in [84] below.
[72]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004]
ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) (
Bato
Star
).
[73]
Id
at para 91.
[74]
Id
at para 89.
[75]
CA
Focus CC v Village Freezer t/a Ashmel Spar
[2013]
ZASCA 136
;
2013 (6) SA 549
(SCA) at para 18 and
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) at para 18.
[76]
However,
what is said about delivery here is limited to matters where
sections 129 and 130 of the Act apply.  It does not
change or
affect the methods of delivery known in the common law.
[77]
Phillips
v South African Reserve Bank and Others
[2012]
ZASCA 38
;
2013 (6) SA 450
(SCA) at para 48.
[78]
Balkind
above
n 66 at para 48 and
Old
Mutual Life Assurance Co SA Ltd v Gumbi
[2007]
ZASCA 52
;
2007 (5) SA 552
(SCA) at para 16.
[79]
See
section 130(4) quoted in the main judgment at [25].
[80]
Sebola
above
n 65 at para 74.
[81]
Id
at para 87.