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[2016] ZACC 23
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Baliso v Firstrand Bank Limited t/a Wesbank (CCT150/15) [2016] ZACC 23; 2016 (10) BCLR 1253 (CC); 2017 (1) SA 292 (CC) (4 August 2016)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 150/15
In the matter
between:
MLAMLI
BALISO
Applicant
and
FIRSTRAND BANK
LIMITED t/a WESBANK
Respondent
Neutral citation:
Baliso v Firstrand Bank Limited t/a Wesbank
[2016] ZACC
23
Coram:
Mogoeng CJ, Moseneke DCJ, Bosielo AJ,
Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J,
Mhlantla J, Nkabinde J, and Zondo J
Judgments:
Froneman J (first): [1] to [37]
Zondo J (second): [38] to [80]
Heard on:
08 March 2016
Decided on:
04 August 2016
Summary:
credit agreement — instalment
agreement — compliance — jurisdictional requirement —
section 127 of the National
Credit Act — exception —
probable receipt by the reasonable consumer in opposed matters
determined by way of evidence
at the trial — appealability of a
dismissal of an exception —
Zweni
requirements — leave for appeal
refused
ORDER
The following order is
made:
The
application for leave to appeal is dismissed.
JUDGMENT
FRONEMAN J:
(Moseneke DCJ, Cameron J, Khampepe J, Madlanga J,
Mhlantla J and Nkabinde J concurring)
[1]
Section 130(3)(a) of the National Credit
Act
[1]
(Act) permits a court to determine a matter in respect of a credit
agreement to which the Act applies only if it is satisfied that,
in
cases to which sections 127, 129 or 131 apply, the procedures
required by those sections have been complied with. This
case
involves the requirements of section 127(2).
[2]
The respondent (Bank) instituted action
against the applicant in the Western Cape Division of the High Court,
Cape Town (High Court)
for payment of an amount of R224 880.27
allegedly outstanding in terms of a credit agreement under the Act.
In its particulars
of claim, the Bank alleged that it caused a notice
in terms of section 127(2) of the Act to be sent to the applicant and
attached
a copy of the notice to the particulars of claim.
After filing a plea that contained an allegation that the notice was
sent
by ordinary mail only, the applicant also filed an exception to
the claim, as lacking averments necessary to sustain an action.
[3]
The High Court granted condonation for the
late filing of the exception, but then dismissed the exception.
Leave to appeal
was refused. The applicant now seeks leave to
appeal to this Court. The Bank has not filed any papers in
opposition.
Leave to appeal
[4]
The applicant seeks to challenge the manner
in which the High Court dealt with his exception. He argues
that the High Court
erred in dismissing his exception and in refusing
to order the stay of the matter.
[5]
The first hurdle facing the applicant is
procedural in nature. The disposal of exceptions on appeal
presents particular problems
in relation to the attributes of an
appealable judicial decision.
[2]
In
Zweni
,
the Supreme Court of Appeal canvassed different rationales
distinguishing between non-appealable rulings and appealable orders.
Harms JA, writing for the Court, noted that, in determining in
which category a judicial determination falls, one must look
“not
merely [at] the form of the [judicial pronouncement] . . . but also,
and predominantly, [at] its effect”.
[3]
He then enumerated three attributes that an appealable judgment
has:
“
[F]irst,
the decision must be final in effect and not susceptible of
alteration by the Court of first instance; second, it must
be
definitive of the rights of the parties; and, third, it must have the
effect of disposing of at least a substantial portion
of the relief
claimed in the main proceedings.”
[4]
[6]
In
Hamilton
,
Cameron JA noted the difference in the Supreme Court of Appeal
[5]
authority between the appealability of decisions upholding exceptions
and the apparent inconsistency in deciding the appealability
of
decisions dismissing exceptions.
[6]
In the particular circumstances of that case the Supreme Court
of Appeal declined to overrule the decisions that held that
the
dismissal of an exception is not appealable.
[7]
[7]
In this Court, the principles applicable to
the appealability of decisions were comprehensively dealt with by
Moseneke DCJ in
ITAC
:
[8]
“
The
question whether an appeal against a decision of the High Court may
lie directly to this Court is governed by section 167(6)(b)
of the
Constitution read with rule 19. The constitutionally prescribed
standard is whether it is in the interests of justice for
this Court
to hear an appeal. In
Khumalo and
Others v Holomisa
this Court held that
it is not a jurisdictional requirement for an appeal to this Court
that the matter must involve a ‘judgment
or order’ within
the meaning of section 20(1) of the Supreme Court Act. However,
the Court pointed out that it will
not often be in the interests of
justice for this Court to entertain appeals against interlocutory
rulings which do not have a
final effect on the dispute between the
parties.
The
same point was made again in
Minister of
Health and Others v Treatment Action Campaign and Others (No 1)
(
TAC(1)
):
‘
The
policy considerations that underlie the non-appealability of interim
execution orders in terms of section 20 of the Supreme
Court Act, are
also relevant to the decision whether it is in the interests of
justice to grant an application for leave to appeal
to this Court
against an interim execution order.’
In
this sense, the jurisprudence of the Supreme Court of Appeal on
whether a ‘judgment or order’ is appealable remains
an
important consideration in assessing where the interests of justice
lie. An authoritative restatement of the jurisprudence
is to be
found in
Zweni
which
has laid down that the decision must be final in effect and not open
to alteration by the court of first instance; it must
be definitive
of the rights of the parties; and lastly, it must have the effect of
disposing of at least a substantial portion
of the relief claimed in
the main proceedings. On these general principles the Supreme
Court of Appeal has often held that
the grant of an interim interdict
is not susceptible to an appeal.
The
‘policy considerations’ that underlie these principles
are self-evident. Courts are loath to encourage wasteful
use of
judicial resources and of legal costs by allowing appeals against
interim orders that have no final effect and that are
susceptible to
reconsideration by a court
a quo
when final relief is determined.”
[9]
(Footnotes omitted.)
[8]
In the present matter, the applicant sought
to circumvent the potential problem of appealing against the
dismissal of an exception
by couching his application for leave as
one against that part of the judgment in the High Court where he
alleges it wrongly made
a distinction between the requirements of
section 127(2) and section 129(1) of the Act. But this does not
help him. Appeals
are against the decisions of courts, not the
reasons for the decisions.
[10]
So the appeal is inevitably in the end against the dismissal of
the exception, no matter the sophistry.
[9]
The essential ground for the exception was
that the respondent’s particulars of claim did not comply with
the requirements
set out in
Sebola
[11]
for notice under section 129(1) of the Act. The argument was
that the notice required under section 127(2) of the Act
was as
important, if not more so, than notice under section 129(1). The
High Court disagreed and dismissed the exception.
Before us the
applicant contended that the High Court erred.
[10]
The legal issues of whether the
requirements for pleading in respect of notices under sections
127(2)(a) and 129(1) of the Act should
be the same and what effect
the determination of that will have on the appealability of the
dismissal of the exception are intertwined.
It will be
necessary to determine the former in order to see whether the
Zweni
requirements of a judgment, namely that
it is final in effect and not open to change by a court of first
instance; definitive of
the rights of the parties; and dispositive of
a substantial portion of the relief sought in the main proceedings,
are met. If
they are, the dismissal of the exception will be
appealable. If they are not, one will need some further
justification, based
on the interests of justice, in order to grant
leave to appeal.
[11]
It is important to recognise, at the
outset, what the purpose of compliance with the relevant notices in
terms of section 130(3)(a)
is. Compliance is a prerequisite for
“determin[ing] the matter”.
[12]
When is a matter “determined” in proceedings under
the Act? That depends on whether the matter is unopposed
and
default judgment is sought, or whether it is opposed and judgment is
to follow only upon hearing evidence at a trial.
[12]
In terms of our civil procedure, default
judgment for a debt or liquidated demand is granted on an acceptance
of the allegations
as set out in the summons, without any evidence.
Where the claim is not for a debt or liquidated demand, the
court may, after
hearing evidence, grant judgment. This is
usually only evidence on the amount of unliquidated damages.
[13]
The reason for not hearing evidence on the other factual
allegations made in the summons or particulars of claim is that,
because the claim is not opposed, it may be accepted that those
allegations are admitted or not disputed.
[13]
Sebola
,
[14]
in its own terms and as clarified in
Kubyana
,
[15]
dealt with legal proceedings at the default judgment stage. Apart
from its interpretation of the notice requirements contained
in
section 129 of the Act,
Sebola
accepted that the general underlying principle was that probable
proof of compliance with the notice requirements was needed before
the matter could be determined.
[16]
[14]
In that context it was stated:
“
The
credit provider’s summons or particulars of claim should allege
that the 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.
The
evidence required will ordinarily constitute adequate proof of
delivery of the section 129 notice in terms of section 130. Where
the credit provider seeks default judgment, the consumer’s lack
of opposition will entitle the court from which enforcement
is sought
to conclude that the credit provider’s averment that the notice
reached the consumer is not contested.”
[17]
[15]
In
Kubyana
,
the applicant sought to make much of the phrase “in the absence
of contrary indication” in support of his argument
that section
129(1)(a)(i) should be interpreted to require that notice must be
brought to the subjective attention of the consumer.
This
argument was rejected.
[18]
In his judgment, Jafta J stated:
“
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.”
[19]
[16]
Kubyana
was
not a default judgment matter. It was an opposed matter where
the applicant had the opportunity to give evidence to contradict
the
evidence of proper notice led by the Bank. He elected not to do
so. In her judgment, Mhlantla AJ (as she then was)
explained
the effect of a properly-pleaded notice in a contested matter:
“
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.”
[20]
[17]
On the facts, Mr Kubyana failed to provide
evidence to displace the burden of proper notice. As Mhlantla
AJ
noted:
“
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.
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.”
[21]
[18]
The judgment of Jafta J is to similar
effect:
“
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.
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.
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.”
[22]
[19]
Like
Kubyana
,
this case is not a default judgment matter. The applicant was
allowed to raise the exception at a very late stage, after
delivery
of his plea. Whatever the outcome of the exception, he is in a
position to provide evidence at the trial that he
was not given
proper notice in terms of section 127(2) of the Act. After
hearing evidence from both parties, the presiding
judicial officer
would then have to assess this evidence in order to decide whether
proper notice was given.
[20]
It follows that none of the
Zweni
requirements have been met. The
dismissal of the exception in the High Court (i) is not final in its
effect; (ii) is not definitive
of the rights of the parties; (iii)
nor is it dispositive of any substantial portion of the relief sought
in the main proceedings.
The applicant may raise and
substantiate any of his defences in relation to the requirements of
section 127(2) and 130(3)
by way of pleading and leading evidence at
the trial. If the
Zweni
test told the whole story, leave to appeal would have to be refused
for lack of an appealable decision.
[21]
Are there, nevertheless, interests of
justice considerations that would necessitate granting leave and
hearing the appeal?
[22]
The applicant argued that it was illogical
to make a distinction between the manner of giving notice under
section 127(2) of the
Act, and that required under section 129(1), as
the High Court did. He acknowledged that section 129(1)(a)
served a different
purpose to that of section 127(2), but submitted
that the failure to comply with the latter had even more serious
consequences
for the consumer than the former. There is much force in
this.
[23]
Failure to comply with section 129(1) has
only dilatory consequences. The purpose of a notice under
section 129(1) is to ensure
that proper efforts are made to allow a
defaulting consumer to pay off the outstanding debt by way of
non-judicial processes. Improper
notice only results in the
court process being postponed until these extra-judicial court
processes are followed and still prove
futile or inconclusive.
[23]
[24]
Failure to comply with the section 127(2)
notice requirement also has the same dilatory consequences, but it
has a more serious
effect as well.
[25]
The section 127(2) notice follows upon the
termination, by notice, of the relevant credit agreement by the
consumer and the surrender
of the goods to the credit provider.
[24]
Within 10 business days of receiving the notice or the tendered
goods, the credit provider must give the consumer the requisite
notice under section 127(2)(b) “setting out the estimated value
of the goods and any other prescribed information”.
[25]
This gives the consumer a choice, a second bite at the cherry as it
were. She may, again within 10 business days, unconditionally
withdraw the notice to terminate the agreement and resume possession
of the surrendered goods, as long as she is not in default
under the
credit agreement.
[26]
[26]
If she chooses not to respond, the credit
provider must sell the surrendered goods as soon as practicably
possible, at the best
reasonable price obtainable.
[27]
Making due and reasonable allowance for its expenses relating
to this sale of the goods, a credit provider must either credit
or
debit the consumer with a payment or charge equivalent to the
proceeds of the sale of the goods.
[28]
Depending on whether the proceeds of the sale exceeds, or is
less than, the settlement value of the goods immediately before
the
sale, a consumer may then either receive the excess or be called upon
to refund the shortfall.
[29]
[27]
The section 127(2) notice setting out the
estimated value of the goods thus provides the consumer with vital
information about whether
she is likely to benefit from the sale of
the goods, or will still be liable for payment of some money to the
credit provider after
the sale. Without proper notice the
consumer is deprived of the opportunity of making the choice of
whether to withdraw the
termination of the agreement. But it
works to the detriment of the credit provider too. If no proper
notice is given,
the provisions allowing for the sale of the goods
become inoperative and the credit provider’s claim for
repayment of outstanding
monies in the case of a shortfall on the
settlement value of the goods will fail. If a sale follows upon
an invalid notice,
a credit provider risks losing its claim for
repayment of outstanding monies. Put differently, an invalid
notice to the consumer
may provide a consumer with substantive, not
only dilatory, grounds to resist repayment under those
circumstances.
[30]
Given these serious consequences of non-compliance with the
notice required under section 127(2), there is merit in the
submission that there exists no good reason to differentiate
materially between the method of complying with the section 127(2)
notice requirement and that under section 129(1)(a)(i).
[28]
Sebola
and
Kubyana
established that, in respect of a notice under section 129(1)(b)(i),
proof that the notice would probably have come to the
attention of a
reasonable consumer is required.
[31]
The applicant, however, contended that, read in context, actual
proof of receipt of the section 127(2) notice by the consumer
is
required under the Act.
[29]
Section 127(3), which gives the consumer
the vitally important choice to unilaterally withdraw her earlier
termination of the credit
agreement, provides that this step may be
taken “after
receiving
a notice under subsection (2)”.
[32]
But the purpose of making her aware of the choice of withdrawal
would also be achieved if the notice and its content come
to her
attention without actual receipt. Adapted to the purpose of
section 127, what is required before a court may determine
the matter
is proof that the section 127(2) notice was probably received by, or
came to the attention of, a reasonable consumer.
The
qualification of “a reasonable consumer” is necessary for
the same reasons as set out in
Kubyana
,
namely, to prevent consumers from unreasonably frustrating compliance
with the section.
[33]
[30]
Is this clarification of what is required
by way of proof of compliance in relation to the notice requirement
under sections 127(2)
and 129(1)(a)(i) respectively, sufficient
reason to entertain the appeal? I think not.
[31]
Because this is an opposed matter, not an
unopposed application for default judgment, the outcome either way of
the exception will
have no final effect on the issues between the
parties. Even if the exception is upheld, the respondent will
have the opportunity
to amend its particulars of claim.
[34]
[32]
The applicant excepted to the particulars
of claim on the basis that it should have contained allegations of
notice by registered
mail in a manner similar to those referred to in
Sebola
,
after he had already filed a plea alleging that the notice was sent
by ordinary mail. This procedure was misconceived.
Sebola
sought to prevent possible injustice to consumers who did not oppose
claims. It did this by providing guidance on how courts
should
ensure that sufficient allegations are contained in unopposed claims
under the Act where default judgment is sought, to
prevent possible
injustice to consumers who did not oppose the claims. As
explained in
Kubyana
,
the guidance provided in
Sebola
is restricted to unopposed matters where default judgment is sought
and is not exhaustive of the manner in which notice can probably
be
brought to the attention of a reasonable consumer.
[35]
A summons may well be
excipiable
if it
does not meet the
Sebola
/
Kubyana
standard, but it is not necessary to make a definitive holding in
this regard. The issue here is the appealability of a dismissal
of an exception.
[33]
In addition, there are few or no prospects
of success that the exception in its present form can possibly
succeed. The factual
basis upon which the applicant relies for
his exception is that the notice was sent by ordinary mail. The
respondent’s
particulars of claim make no allegation that the
notice was sent by ordinary mail.
[36]
Where an exception is taken a court looks only to the pleading
excepted to as it stands, not to facts outside those stated in
it.
[37]
The only allegation about notice by ordinary mail is in the
applicant’s own plea and as an averment in his notice of
exception and an affidavit filed simultaneously with it. Those
allegations may not be used as the basis for deciding the
exception.
[34]
Here, the question of probable receipt of
the section 127(2) notice, or of it probably coming to the attention
of the reasonable
consumer, in this case the applicant, is one of the
issues that must be determined by way of evidence at the trial. The
exception
procedure was inappropriate in the circumstances. Leave
to appeal must be refused.
[35]
After completion of this judgment I had the
privilege of reading the judgment of Zondo J. I nevertheless
remain unpersuaded
that the appeal can succeed.
[36]
The matter was treated by the parties and
the Judge in the High Court as an exception, not as an application to
be decided on affidavit.
I fail to see how a court on appeal is
entitled to treat it otherwise; make a declaratory order and then
summarily dismiss
the respondent’s action with costs. Even
if it was an exception to jurisdiction that should have been upheld,
the proper
order would still have been to allow the respondent the
opportunity to amend its particulars of claim, not to make a final
order
dismissing the respondent’s action.
[38]
This merely illustrates the importance of keeping the
distinction between the form of proceedings, unopposed or opposed,
in
mind, as shown above. This is an opposed matter, similar to
Kubyana
,
where the applicant is in the position to give evidence whether he
received the notice or not. And if he did receive it in time,
even if
it was only sent by ordinary mail, could he still ask for dismissal
of the respondent’s claim? Surely not.
Order
[37]
The following order is made:
The
application for leave to appeal is dismissed.
ZONDO J (Mogoeng CJ,
Bosielo AJ and Jafta J concurring)
Introduction
[38]
This is an application for leave to appeal
against a decision of the Western Cape Division of the High Court
(High Court).
That decision was to the effect that, by sending
a notice in terms of section 127(2) the Act
[39]
to the applicant by ordinary mail, the respondent had complied with
the requirements of that provision. It also dismissed
the
applicant’s exception to the respondent’s action.
Background
[39]
The respondent instituted an action in the
High Court against the applicant for payment of R224 880.27.
Previously, the respondent
and the applicant had concluded an
instalment agreement in terms of which the respondent provided credit
to the applicant for the
purchase of a Mercedes Benz motor vehicle.
The applicant was obliged to repay the loan by way of monthly
instalments.
[40]
In its particulars of claim the respondent
alleged that it repossessed the motor vehicle from the applicant and
sold it on auction
after the applicant had fallen into arrears.
The respondent alleged that the amount of R224 880.27 represented the
difference
between the value of the motor vehicle at the time it was
returned and the price for which it was sold. The action was
for
the recovery of the shortfall. The applicant delivered his
plea to the respondent’s action. Thereafter, he delivered
an exception that was accompanied by an affidavit deposed to by him.
The High Court condoned the applicant’s delivery
of an
exception after he had already delivered his plea.
[41]
The respondent did not deliver any
affidavit to dispute the contents of that affidavit. It also
did not bring an application
to strike the affidavit out or an
application for an order declaring the delivery of that affidavit an
irregular step. There
is no indication anywhere in the record
or in the judgment of the High Court that the respondent had any
objection to the delivery
of the applicant’s affidavit.
The fact that that affidavit was not struck out or that its delivery
was not declared
an irregular step meant that the Court was obliged
to take its contents into account in deciding the matter. It
could not
simply ignore an affidavit placed before it containing
evidence relevant to the issue it was called upon to decide.
The defence
advanced by the applicant in his plea was that the
respondent had not complied with section 127(2).
Jurisdiction
[42]
As this matter raises the interpretation,
application and the effect of provisions of the Act, this Court has
jurisdiction.
[40]
Leave
[43]
In this Court leave to appeal is granted if
it is in the interests of justice to grant leave. I have had
the benefit of reading
the judgment by my Colleague, Froneman J (the
first judgment). The first judgment first examines the question
whether the
decision sought to be appealed against is
appealable.
[41]
It concludes that the decision is not appealable.
[42]
Then it considers whether it is, nevertheless, in the interests of
justice to grant leave to appeal.
[43]
It concludes that it is not. It then decides that the
application should be dismissed.
[44]
[44]
The main reason advanced in the first
judgment in support of the dismissal of the application for leave to
appeal is that the decision
sought to be appealed against is an
interlocutory order that is not final in effect nor dispositive of a
substantial part of the
main action. For this the first
judgment relies upon the decision in
Zweni.
[45]
The first judgment takes the view that the High Court may still alter
its decision at trial. Accordingly, the first
judgment’s
dismissal of the application is on the basis that the matter should
proceed to trial and the trial court will
decide whether or not it
alters the decision.
[45]
I am unable to agree with the first
judgment on the conclusions and order referred to above. The
question raised by this matter
is whether or not the sending of a
section 127(2) notice by a credit provider to a consumer by
ordinary mail constitutes compliance
with section 127(2). That
is an important question of law that has not been considered by this
Court. A decision on
this issue will affect the entire credit
market industry. Both credit providers and consumers would be
interested to know
whether a credit provider who sends a section
127(2) notice to a consumer by ordinary mail complies with section
127(2).
They would also want to have certainty on what the
effect is of a conclusion by a court that there has been no
compliance with
section 127(2) where the credit provider has
already sold the goods which were the subject of the credit
agreement.
One of the questions that arises is whether, in such
a case, the credit provider may still pursue its action against the
consumer
to recover the shortfall contemplated in section 127(8) of
the Act.
[46]
Furthermore, in my view the decision sought
to be appealed against relates to the jurisdiction or competence of
the High Court to
determine the matter before it and, as such, is
appealable. The fact that the decision is appealable would
support the conclusion
that it is in the interests of justice that
leave should be granted. If this Court entertains this matter
and concludes that
there was no compliance with the procedure in
section 127(2), that may be fatal to the respondent’s main
action in the light
of the fact that the motor vehicle has already
been sold. As will be shown below, the applicant has reasonable
prospects
of success. In my view, it is in the interests of
justice that leave to appeal be granted.
The appeal
[47]
In his exception as well as affidavit the
applicant objected to the respondent’s action. His
objection was two-fold.
The first part was that the
respondent’s particulars of claim did not contain certain
allegations that they were required
to contain in order to sustain
the action. The second part was that the respondent had not
complied with section 127(2) and,
therefore, the Court could not
determine the matter. As will be shown shortly, if valid, the
second part of the objection
meant that the Court did not have the
competence or jurisdiction to determine the matter. In this
judgment I focus on the
second part of the objection.
[48]
A reading of the High Court’s
judgment reveals that the High Court appreciated that part of the
applicant’s objection
was that there had been no compliance
with section 127(2). That is why it defined the issue for
determination thus:
“
In
this instance the exception is limited to the question whether it was
sufficient for the plaintiff to deliver the section 127(2)(b)
notice
by ordinary mail.”
[46]
Later, the Court
said:
“
Section
130(3)(a) of the NCA specifically provides that the court may only
determine a matter in respect of proceedings to which
section 127 of
the NCA applies, if the procedures required by section 127 have been
complied with. In section 130(4)(b) it
is furthermore
stipulated that, in the event of credit provider not having complied
with the provisions of the NCA as contemplated
in section 130(3)(a),
the court must adjourn the matter and make an appropriate order
setting out the steps that the credit provider
must take before the
matter may be resumed.”
[47]
The High Court
concluded:
“
I
conclude that the section 127(2)(b) notice forwarded by the plaintiff
to the defendant by ordinary mail was sufficient.
The
plaintiff therefore complied with the provisions of the NCA and there
is no basis for the matter to be postponed
.”
[48]
Thereafter, the Court
dismissed the applicant’s exception and refused to postpone the
matter in terms of section 130(4)(b).
[49]
From the above it is clear that the
decision made by the High Court was that the sending of a section
127(2) notice by ordinary
mail is sufficient for purposes of
compliance with section 127(2) and that, therefore, there was
compliance with the procedure
prescribed by section 127 before the
respondent instituted its action.
The effect of the
decision of the High Court
[50]
The next question to consider is what the
effect of the High Court’s decision was. In particular,
what is the effect
of the decision of a court that a credit provider
has complied with section 127(2)? That question requires an
examination
of both sections 127 and 130(3) and (4). Section
127(1) – (4) reads:
“
(1)
A consumer under an instalment agreement, secured loan or lease—
(a)
may give written notice to the credit provider to
terminate the agreement; and
(b)
if—
(i)
the goods are in the credit provider’s possession, require the
credit
provider to sell the goods; or
(ii)
otherwise, return the goods that are the subject of that agreement to
the credit
provider’s place of business during ordinary
business hours within five business days after the date of the notice
or within
such other period or at such other time or place as may be
agreed with the credit provider.
(2)
Within 10 business days after
the
later of—
(a)
receiving a notice in terms of subsection
(l)(b)(i); or
(b)
receiving goods tendered in terms of subsection (l)(b)(ii),
a
credit provider must give the consumer written notice setting out the
estimated value of the goods and any other prescribed information
.
(3)
Within 10 business days after receiving a notice under subsection
(2), the consumer
may unconditionally withdraw the notice to
terminate the agreement in terms of subsection (l)(a),
and
resume possession of any goods that are in the credit provider’s
possession, unless the consumer is in default under the
credit
agreement.
(4)
If the consumer–
(a)
responds to a notice as contemplated in subsection
(3), the credit provider must return the goods to the consumer unless
the consumer
is in default under the credit agreement; or
(b)
does not respond to a notice as contemplated in subsection (3), the
credit provider
must sell the goods as soon as practicable for the
best price reasonably obtainable.”
Section 127(3)
confers upon the consumer, if she is not in default under the
agreement, the right to unconditionally withdraw the
notice to
terminate the agreement and resume possession of the goods within 10
business days after receiving the section 127(2)
notice.
In this case there was a dispute between the parties on whether the
applicant was in default. However, even
if the applicant was in
default, that would not affect the ultimate conclusion.
[51]
Section 127(5) obliges the credit provider
to take certain steps “[a]fter selling any goods
in
terms of this section
. . .”.
The steps that the credit provider must take under paragraphs (a) and
(b) are, respectively, to—
“
(a)
credit or debit the consumer with a payment or
charge equivalent to the proceeds of the sale less any expenses
reasonably incurred
by the credit provider in connection with the
sale of the goods; and
(b)
give the consumer a written notice stating the following:
(i)
The settlement value of the agreement immediately before the sale;
(ii)
the gross amount realised on the sale;
(iii)
the net proceeds of the sale after deducting the credit provider’s
permitted default
charges, if applicable, and reasonable costs
allowed under paragraph (a);
and
(iv)
the amount credited or debited to the consumer’s account.”
These steps can only
be taken if the goods have been sold “in terms of”
section 127. They cannot be competently
taken if the goods were
not sold “in terms of” section 127. The goods
cannot be said to have been sold “in
terms of” section
127 if there was no compliance with section 127(2).
[52]
Section 127(7) and (8) reads:
“
(7)
If an amount is credited to the consumer’s account and it is
less than the settlement value
immediately before the sale, or an
amount is debited to the consumer’s account
,
the credit provider may demand payment from the consumer of the
remaining settlement value, when issuing the notice required by
subsection (5)(b)
.
(8)
If a consumer—
(a)
fails to pay an
amount demanded in terms of
subsection (7) within 10 business days after receiving a demand
notice,
the credit provider may
commence proceedings in terms
of
the Magistrates’ Courts
Act for judgment enforcing the credit agreement
;
or
(b)
pays the amount demanded after receiving a demand notice at any time
before judgment
is obtained under paragraph
(a),
the agreement is terminated
upon remittance of that amount.”
[53]
If the goods were not sold “in terms
of” section 127, the credit provider will not be entitled to
demand payment from
the consumer as provided for in section 127(7).
Nor will it be entitled to institute court proceedings as provided
for in
subsection (8). In this regard special attention must be
drawn to the provision of section 127(10). It provides that
“[a] credit provider who acts in a manner contrary to this
section is guilty of an offence”.
[54]
It seems to me that, where a court
concludes, after the credit provider has sold the goods, that there
was no compliance with section
127(2), this is fatal to the credit
provider’s action against the consumer. It is fatal
because it means that the credit
provider can no longer put right its
failure to comply with section 127(2) since that compliance is
required to precede the sale
of the goods. It cannot be
effected after the goods have been sold.
[55]
At this stage it is appropriate to refer to
a provision of the Act with which the applicant commenced his
objection to the respondent’s
action. That is section
130(3) of the Act. It reads:
“
(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 section
127, 129 or 131 apply, the procedures required by those sections have
been complied
with.”
[56]
It is necessary to also quote section
130(4)(b). It reads:
“
(
4)
In any proceedings contemplated in this section,
if the court determines that—
(a)
. . .
(b)
the credit provider has not complied with the relevant provisions of
this Act, as
contemplated in subsection (3)(a), or has approached the
court in circumstances contemplated in subsection (3)(c) the court
must—
(i)
adjourn the matter before it; and
(ii)
make an appropriate order setting out the steps the credit provider
must complete
before the matter may be resumed.”
[57]
Section 130(4) makes it clear that, if
there has been no compliance with the procedures prescribed by
section 127, the court may
not proceed to determine the matter.
It must postpone the matter and specify the steps that the credit
provider must take
before the matter may resume in court. That
the court is enjoined not to proceed with the matter if there has
been no compliance
with the procedures prescribed by section 127 is
an indication that the time when the court must satisfy itself
whether there has
been compliance with section 127 is as soon as
possible after the institution of the proceedings. If the court
fails to satisfy
itself about that soon after the institution of the
proceedings and seeks to do so much later, it would be risking unduly
delaying
the finalisation of the matter. If the court seeks to
satisfy itself about that only at the trial and it concludes that
there
has been no compliance with section 127, a lot of money will
have been wasted and there would have been a long delay in the
finalisation
of the matter.
[58]
Section 130(3) means that the court may not
determine a matter if it has not first satisfied itself that, in the
case of proceedings
to which sections 127, 129 or 131 apply, the
procedures prescribed by sections 127, 129 or 131 have been complied
with. The
phrase “only if” in section 130(3)
introduces a precondition that must exist before the court may have
the competence
or jurisdiction to determine the matter. Special
note must be taken of the phrases “the court may determine the
matter”
and “only if the court is satisfied that . . .”
in section 130(3). The part that reads “the court may
determine
the matter” is the first part of subsection (3).
The phrase that starts with “only if” up to the end of
that provision is the second part of subsection (3). The second
part of subsection (3) denotes the jurisdictional requirement
that
must exist before the court may acquire the competence or
jurisdiction to determine the matter.
[59]
About jurisdictional facts or requirements,
in
The New Constitutional and
Administrative Law
, the authors say in
part:
“
The
legislative formula ‘if x, then the administrator may do y’
is very familiar in administrative law. The legislation
empowering an administrator to act often prescribes
preconditions
that must exist prior to the exercise of the power and
procedures
to be followed (or formalities to be observed) when exercising the
powers. Such preconditions and procedures are termed
jurisdictional facts: ‘substantive’ jurisdictional facts
in the case of preconditions, and ‘procedural’
jurisdictional facts in the case of procedural requirements.
The point about jurisdictional facts is that the exercise of
the
power depends on their existence or observance, as the case may be.
If the jurisdictional facts are not present or observed
. . ., then
the exercise of the power will as a general rule be unlawful.”
[49]
[60]
In interpreting other statutory provisions
in which “if” was or is used in the same way in which
“only if”
is used in section 130(3) our courts have held
the event that comes after “if” as constituting a
jurisdictional requirement.
Section 46(9)(b)(i) and (ii) of the
now repealed Labour Relations Act, 1956 (1956 Act) reads as follows
in so far as it is relevant:
“
If
a dispute concerning an alleged unfair labour practice has been
referred to—
(i)
an industrial council having
jurisdiction in respect thereof . . . any party to the dispute may .
. . refer the dispute to the industrial
court for determination . . .
(ii)
a conciliation board and that board has
failed to settle that dispute . . ., any party to the dispute
may . . . refer the
dispute to the industrial court for determination
. . .”
In relation to this
provision, it was held that the referral of a dispute concerning an
alleged unfair labour practice to an industrial
council or a
conciliation board was a jurisdictional requirement that needed to
exist before such a dispute could be referred to
the Industrial Court
for determination. It was held that, if such a dispute had not
been referred to an industrial council
or conciliation board, the
Industrial Court would have no jurisdiction.
[61]
In
Intervalve
[50]
this Court acknowledged this. In relation to section 46(9)(b)
it said:
“
Before
the repeal of the 1956 Act by the LRA, it was widely accepted that
the Industrial Court had no jurisdiction to determine
an unfair
labour practice dispute that had not first been referred to a
conciliation process.”
[51]
This shows that the
part of section 46(9)(b)(i) that reads:
“
If
a dispute concerning an alleged unfair labour practice has been
referred to . . .
(i)
an industrial council . . .; or
(ii)
a conciliation board. . .”
was accepted as
constituting a jurisdictional requirement that had to exist before
the second part could happen. The second
part was the one
relating to the referral of the dispute to the Industrial Court for
determination. As I have said, the part
of section 130(3) of
the Act that comes immediately after the words “only if”
constitutes a jurisdictional requirement
that must exist before the
court may determine the matter.
[62]
Section 191(5)(a) and (b) of the Labour
Relations Act
[52]
(LRA) reads as follows insofar as it is relevant—
“
If
a council or a commissioner has certified that the dispute remains
unresolved
, or, if 30 days have expired
since the council or the Commission received the referral and the
dispute remains unresolved—
the
council or the Commission must arbitrate the dispute at the request
of the employee . . .
.
. .
.
. .
.
. .
the
employee may refer the dispute to the Labour Court for adjudication
if the
employee has alleged that . . .
.
. .
.
. .
.
. .”
[63]
In respect of the provisions of section
191(5) of the LRA this Court reached the same conclusion in
Intervalve
as it did in respect of section 46(9)(b) of the 1956 Act. In
Intervalve
this Court held as follows in regard to section 191(5):
“
Section
191(5) creates two conditions one of which must be met before a
dismissal dispute may be arbitrated or may be referred to
the Labour
Court for adjudication. The first condition is that the CCMA or
bargaining council, as the case may be, must have
issued a
certificate of non-resolution of the dispute. The second is
that a period of 30 days from the date on which the
CCMA or
bargaining council received the referral must have lapsed.”
[53]
[64]
A little later in the same judgment this
Court said:
“
It
seems to me that, whatever terminology one may use to describe the
effect of section 191(5)(b), it lays down two preconditions
one of
which must be met before a dispute concerning the dismissal of
employees for striking may be referred to the Labour Court
for
adjudication. If neither of the preconditions has been met, the
Labour Court has no jurisdiction to adjudicate the dispute.
The
event of the expiry of 30 days applies if the dispute had been
referred to the council or CCMA for conciliation under section
191(1).”
[54]
[65]
Section 130(3) does not just use the word
“if” but uses the words “only if” which
emphasise that the event
referred to before the words “only
if”, which is the determination of the matter, is precluded
unless the event referred
to after the words “only if”
has occurred. It will be noticed that section 191(5)(a) has two
parts. The
first part of the provision begins with “if”
and ends with the word “unresolved”. The second
part
starts with “the council”. The first part
denotes the jurisdictional requirement that must exist before the
council
may exercise its jurisdiction and arbitrate the dispute.
The same applies to section 191(5)(b). In the latter provision,
the first part is the same as the first part in section 191(5)(a).
The second part in section 191(5) is the one that starts
with “the
employee”.
[66]
Section 191(5) provides that the CCMA or
bargaining council must arbitrate the dispute at the request of the
employee, if a council
or the commissioner has certified that the
dispute remains unresolved or if 30 days have expired since the
council or CCMA received
the referral and the dispute remains
unresolved. In regard to this provision, this Court, inter
alia
,
said
in
Intervalve
:
“An employee may only competently make that request when one of
the events has occurred.”
[55]
[67]
About the two preconditions in sections
191(5) this Court said:
“
That
these two events are preconditions is made clear by the use of ‘if’
at the beginning of the first event mentioned
in section 191(5) and
the repetition of that “if” just before the second event
in the provision.”
[56]
[68]
This Court made it clear that section
191(5) concerns jurisdiction. Given the use of “if”
and “may”
in section 191(5), and “may” and
“only if” in section 130(3) of the Act, it seems to me
that section 130(3)
relates to the competence or jurisdiction of the
court. Its effect is that, the court will have no jurisdiction
in respect
of a matter where the procedures prescribed by section
127(2) have not been complied with. Therefore, compliance with
the
procedure in section 127(2) goes to the competence or
jurisdiction of the court. A decision that there has been
compliance
with section 127(2) is a decision on the competence or
jurisdiction of the court. Once a court of first instance has
made
a decision on jurisdiction, it cannot alter that decision later.
[69]
In
Zweni
[57]
the Supreme Court of Appeal held that to be appealable a decision
must be final in effect and not open to alternation by the court
of
first instance, be definitive of the rights of the parties and have
the effect of disposing of at least a substantial part of
the relief
claimed in the main proceedings. The Court said that in determining
the nature and effect of a judicial pronouncement,
not merely the
form of the order must be considered but also, and, predominantly,
its effect.
[70]
However, in
Makhothi
[58]
the Appellate Division held:
“
We
. . . are satisfied that, although interlocutory in form, the order
of the Court a quo dismissing the exception to the special
plea
(which claimed that the plaintiff’s action was barred because
the notice required by s 32(1) of the Police Act 7 of
1958 had not
been timeously given) was final and definitive in effect and
therefore appealable. . . This was not a case in
which further
evidence could have led to a different conclusion at the final stage
of the action; the pleadings contained all the
facts relevant to the
issue. By dismissing the exception to the special plea the
Court a quo therefore ‘spoke the final
word in the suit’
and its order is not ‘repairable at the final stage’.
(see
Blaauwbosch Diamonds Ltd v Union
Government
1915 AD 599
at 601-2.)”
[71]
In
Maize
Board
[59]
the Supreme Court of Appeal also had to decide on the appealability
of an exception. In the course of a review of the authorities
it referred to
Du Toit.
[60]
About that case, the Supreme Court of Appeal said—
“
.
. . this Court held that the dismissal of an exception on the ground
that the Court does not have jurisdiction to hear the matter
constituted a final judgment and as such an exception to the general
principle that the dismissal of an exception is not final.”
[61]
The Supreme Court of
Appeal held that, in the light of that Court’s interpretation
of section 20 of the now repealed Supreme
Court Act and certain
decisions—
“
it
now has to be accepted that a dismissal of an exception (save an
exception to the jurisdiction of the Court) presented and argued
as
nothing other than an exception does not finally dispose of the issue
raised by the exception and is not appealable.”
[62]
From this it is clear
that the dismissal of an exception to the jurisdiction of a court is
regarded as final and appealable.
Was there compliance
with section 127(2)?
[72]
Once it is accepted that the decision
appealed against is appealable, the next question is whether the
respondent complied with
section 127(2) when it sent the section
127(2) notice by ordinary mail. I agree with the first
judgment’s conclusion
that there is merit in the applicant’s
contention that the manner in which section 127(2) must be
complied with need
not be different from the manner in which
section 129 must be complied with. I do so for the reasons
given in the first
judgment and in this judgment.
[73]
In
Sebola
[63]
this Court held that the sending of a section 129 notice by ordinary
mail did not constitute compliance with section 129.
This Court
said—
“
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 .
. . that the notice, on balance of probabilities, reached the
consumer.”
[64]
This Court went on to
say—
“
Hence,
where 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. Even though registered
letters may go astray, at least, there
is a high degree of
probability that most of them are delivered.”
[65]
Later, the Court
said:
“
To
require mere despatch of the section 129 notice, as the Bank and BASA
sought, under-appreciates its importance in the statutory
scheme.”
[66]
[74]
In
Kubyana
[67]
this Court did not say anything that detracted from this holding.
Instead, its aid in part—
“
(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. . .”
[68]
The
Court laid down three other requirements.
[75]
In my view, it would follow that the
sending of a section 127(2) notice by ordinary mail also does not
constitute compliance with
section 127(2). It was accepted that
to inform the Court simply that a section 129 notice had been sent by
ordinary mail
would not be enough to satisfy the court that section
129 had been complied with. In respect of a section 127(2)
notice as
well, it would not be enough for the credit provider to
simply inform the court that the section 127(2) notice was sent or
was
sent by ordinary mail.
[76]
If one has regard only to the respondent’s
particulars of claim, the High Court could not conclude that there
had been compliance
with section 127(2). This is because all
that was alleged in the particulars of claim with regard to
compliance with section
127(2) was that the section 127(2) notice was
sent to the applicant. There was no indication as to how that
notice was sent.
That was not sufficient to enable the Court to
reach such a conclusion.
[77]
If it is accepted that the determination of
whether the procedures in section 127 have been complied with must be
made by the Court
soon after the institution of the action, the
respondent was obliged to place before the High Court sufficient
facts to enable
the Court to satisfy itself that there had been
compliance with section 127. It failed to do so. On the
other hand,
if the High Court was entitled to have regard to the
applicant’s “exception” and affidavit, the only
conclusion
it could reach was that there had been no compliance with
section 127(2). This is so because the applicant attached to
his
affidavit a letter from the respondent’s attorneys in which
they admitted that the section 127(2) notice was sent by ordinary
mail and contended that sending a section 127(2) notice by
ordinary mail constituted compliance with section 127(2).
[78]
Pursuant to section 130(3), the High Court
was not only entitled but was obliged to have regard to the facts
placed before it by
way of the applicant’s affidavit. The
respondent did not object to the delivery of the affidavit. It
had the
opportunity to deliver its own affidavit to dispute the
contents of the applicant’s affidavit but elected not to do so
despite
the fact that section 130(3) required the court to satisfy
itself on whether the section 127 procedure had been complied with.
It, therefore, could not complain if the Court took the affidavit
into account in seeking to satisfy itself whether section 127(2)
had
been complied with.
[79]
The High Court erred in holding that there
had been compliance with section 127(2). It should have held
that there was no
compliance and upheld the applicant’s
objection. A section 127(2) notice must be sent to the consumer
before the goods
can be sold. Since the motor vehicle has been
sold already, the respondent cannot comply with section 127 anymore
even if
it was given an opportunity to do so. Therefore, the
Court cannot competently order the respondent to take any steps to
comply
with section 127. Section 130(4)(b) has no application.
The result is that the only order that the High Court could
competently make if it had concluded that there had been no
compliance with section 127(2) would have been to uphold the
objection
and dismiss the respondent’s action.
[80]
In the circumstances I would make the
following order:
1.
Condonation is granted.
2.
Leave to appeal is granted.
3.
The appeal is upheld and the order of the
High Court is set aside and replaced with the following order:
“
(a)
It is declared that the plaintiff has not complied with section
127(2) of the National Credit Act 34, 2005.
(b)
The plaintiff’s action is dismissed with costs.”
4.
There is no order as to costs in this Court.
For the
Applicant: In Person instructed by M Baliso &
Associates
For the Respondent: No
appearance
[1]
34 of 2005.
[2]
See
Zweni v Minister
of Law and Order
1993 (1) SA 523
(A)
and
Minister of Safety and Security and
Another v Hamilton
[2002] ZASCA 22
;
2001 (3) SA 50
(SCA) (
Hamilton
).
[3]
Zweni
, above n
2, quoting
South African Motor Industry
Employers’ Association v South African Bank of Athens
1980 (3) SA 91
(A) at 96H.
[4]
Id at 532J-533A.
[5]
And previous Appellate Division cases.
[6]
Hamilton
above n
2 at paras 5-7.
[7]
Id at para 8.
[8]
International Trade Administration Commission
v Scaw SA (Pty) Ltd
[2010] ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC) (
ITAC
).
See also
Director-General Department of
Home Affairs and Another v
Mukhamadiva
[2013] ZACC 47
;
2014 (3) BCLR 306
(CC)
at para 19.
[9]
ITAC
above n 8
at paras 47-50.
[10]
SA Reserve Bank v Khumalo
[2010] ZASCA 53
;
2010 (5) SA 449
(SCA) at para 4.
[11]
Sebola and Another v Standard Bank of SA Ltd
and Another
[2012] ZACC 11
;
2012 (5)
SA 142
(CC);
2012 (8) BCLR 785
(CC) (
Sebola
).
[12]
Section 130(3) reads in relevant part:
“
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.”
[13]
See rule 31(2)(a) of the Uniform Rules of Court.
See also rule 12(4) of the Magistrates’ Court Rules and Harms
and
Southwood
Judgment by Default
(LexisNexis, Cape Town 2015) at B 12(8).
[14]
Above n 11 at para 7.
[15]
Kubyana v Standard Bank of SA Ltd
[2014]
ZACC 1
;
2014 (3) SA 56
(CC);
2014 (4) BCLR 400
(CC) at para 42.
[16]
See
Sebola
above n 11 at para 74,
where
the Court stated:
“
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.”
At para 75 the Court
stated further:
“
The statute
requires the credit provider to take reasonable measures to bring
the notice to the attention of the consumer, and
make averments that
will satisfy a court that the notice probably reached the consumer,
as required by section 129(1).”
[17]
Id at paras 77-8.
[18]
Kubyana
above n
15 at para 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.”
[19]
Id at para 98.
[20]
Id at para 53.
[21]
Id at paras 56-7.
[22]
Id at paras 86-8.
[23]
Section 130(4) of the Act.
[24]
Section 127(1) of the Act.
[25]
Section 127(2)(b) provides:
“
Within 10
business days after the later of receiving goods in terms of
subsection (l)(b)(ii), a credit provider must give the
consumer
written notice setting out the estimated value of the goods and any
other prescribed information.”
[26]
Id section 127(3) and 127(4)(a).
[27]
Id section 127(4)(b).
[28]
Id section 127(5).
[29]
Id section 127(6)-(9).
[30]
Section 130(3)(a) provides that “the court
may determine the matter” only if the court is satisfied that
the necessary
procedures have been complied with. If not, the
court must adjourn the matter and “make an appropriate order
setting
out the steps the credit provider must complete before the
matter may be resumed”. See section 130(4)(b). A
postponement and accompanying order may, however, not be able to put
the Humpty Dumpty of a claim under the Act together
again.
[31]
Kubyana
above n
15 at paras 55 and 81-3.
[32]
Emphasis added.
[33]
Kubyana
above n
15 at paras 39-40, 46-8, 51, 53 and 83.
[34]
H v Fetal Assessment Centre
[2014]
ZACC 34
;
2015 (3) SA 193
(CC);
2015 (2) BCLR 127
(CC) at para 79.
[35]
See
Kubyana
above
n 15 at paras 49-53.
[36]
In paragraph 14 of
the particulars of claim the respondent pleads that “[t]hereafter
the Plaintiff caused a notice in terms
of
Section 127(2)
of the
National Credit Act to
be sent to the Defendant, a copy of which is
annexed hereto as ANNEXURE ‘E’.” Annexure E is a
copy of the notice
without any indication on it that it was
sent
by ordinary mail.
[37]
See
Hamilton
above n 2 at para 5 and Erasmus
Superior
Court Practice
2
ed (Juta & Co Ltd, Cape Town
2015) at D1-293, 294.
[38]
H v Fetal Assessment Centre
above
n 34.
[39]
See above n 1.
[40]
See
Sebola
above n 11 and
Kubyana
above
n 15.
[41]
See [5] to [10] of the first judgment.
[42]
See [20] of the first judgment.
[43]
See [21] of the first judgment.
[44]
See [33] to [34] of the first judgment.
[45]
Zweni
above n 2
.
[46]
Firstrand Bank Ltd t/a Wesbank v Baliso
[2015]
ZAWCHC 146
(High Court judgment) at para 18.
[47]
Id at para 19.
[48]
Id at para 20.
[49]
Hoexter and Lyster
The
New Constitutional and Administrative Law
(Juta & Co Ltd, Cape Town 2002) vol 2 at 138–9.
[50]
National Union of Metalworkers of South Africa
v Intervalve (Pty) Ltd and Others
[2014]
ZACC 35
;
2015 (2) BCLR 182
(CC);
2015 BLLR 205
(CC) (
Intervalve
).
[51]
Id at para 127.
[52]
66
of 1995.
[53]
See
Intervalve
above
n 50 at para 112.
[54]
Id at para 115.
[55]
Id at para 114.
[56]
Id at para 113.
[57]
Zweni
above n 2 at 532I –533A.
[58]
Makhothi v Minister of Police
1987
(1) SA 69
(A) at 72H.
[59]
Maize Board v Tiger Oats & Others
[2002]
ZASCA 74; 2002 (5) SA 347 (SCA).
[60]
Du Toit v Ackerman
1962
(2) SA 581
(A) at 587D-E.
[61]
Maize Board
above
n 59 at para 9.
[62]
Id
at para 14.
[63]
Sebola
above n
11.
[64]
Id at para 74.
[65]
Id at para 75.
[66]
Id at para 85.
[67]
Kubyana
above n
15.
[68]
Id at para 43.