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[2026] ZAGPPHC 851
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Firstrand Bank Limited t/a Wesbank v Poirier (14522-2014) [2026] ZAGPPHC 851 (29 July 2026)
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FLYNOTES:
CONSUMER – Credit agreement –
Shortfall
after repossession
–
Bank
reclaiming shortfall after vehicle repossession and sale –
Statutory notices sent by ordinary post to known incorrect
address
– No proof of dispatch retained – Section 127
procedures not proved – Demand prerequisite to shortfall
proceedings absent – Certified balance contradicted by
applicant’s own figures and documents – Quantum
genuinely disputed – Earlier adjournments failed to cure
defects – Further referral or postponement serving no
purpose – Application dismissed –
National Credit Act
34 of 2005
,
s 127.
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER:
14522-2014
DATE: 28 JULY 2026
Case No: 14522/2014
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHERS JUDGES: YES/NO
(3)
REVISED
.....
DATE 29 July 2026
SIGNATURE
In
the matter between:
FIRSTRAND
BANK LIMITED t/a
WESBANK
Applicant
and
PERBYL
MARELIZE
POIRIER
Respondent
JUDGMENT
DU
PLESSIS AJ
A. INTRODUCTION
[1]
This is an opposed application in which the applicant, a registered
credit provider,
seeks payment of R77 439.63 together with interest
at 14% per annum from 15 November 2014 to date of final payment, and
costs.
The amount claimed is the shortfall said to remain after the
applicant repossessed and sold a 2009 Hyundai Tucson 2.0 GLS motor
vehicle which had been financed by it under an instalment sale
agreement concluded with the respondent on 24 July 2010.
[2]
Adv D M Pool appeared for the applicant. There was no appearance for
the respondent.
The respondent has throughout acted in person. She is
not a legal practitioner, but she is, on the papers, an experienced
forensic
auditor. Although she did not appear at the hearing, she has
delivered an answering affidavit, a supplementary affidavit, and a
further affidavit in response to the applicant's reply and heads of
argument, and has thereby placed her full opposition before
the
court. The application is opposed on the papers and I determine it on
that footing, notwithstanding her non-appearance. Her
grounds of
opposition are, in essence, that the applicant has not complied with
the National Credit Act 34 of 2005 (“the
NCA”), that the
account on which the claim is founded is the subject of an unresolved
and properly raised dispute, and that
the quantum of the claim has
not been established.
[3]
The application was launched in March 2015. It is heard for the first
time on its
merits in July 2026, more than eleven years later. That
fact, and the reasons for it, feature in what follows.
B. THE PROCEDURAL HISTORY
[4]
The procedural history is unusual and I set it out at the outset,
because much of
the argument turns on it.
[5]
On 4 August 2014 this court granted default judgment against the
respondent. The order
is annexure TM2 to the founding affidavit. It
is important to record precisely what was ordered:
“
1. Defendant is directed to
forthwith return the motor vehicle ... to plaintiff, and failing
immediate compliance with this order,
the sheriff or his deputy is
authorised and directed to take the motor vehicle into his possession
wherever same may be found and
to deliver it to plaintiff;
2. Leave to apply for: 2.1
Damages, if any, in an amount to be calculated in accordance with
Section 127(5) – (9) of
the NCA; 2.2 Interest on the said
damages to be determined at a later date;
3. Costs ...”
[6]
A warrant for delivery issued on 14 August 2014. On 11 September 2014
the sheriff
attached the vehicle at [...] K[...] N[...], W[...]
Street, Little Falls, Roodepoort, and handed it to an agent of the
applicant.
The vehicle was sold on 14 November 2014 for R100 320.00
(inclusive of VAT of R12 320.00).
[7]
The present application was issued on 6 March 2015 and served
personally on the respondent
on 18 March 2015. It came before this
court on 24 April 2015, 22 July 2015 and 9 September 2015. On the
respondent's version —
which is not contradicted anywhere on
the papers — counsel for the applicant informed the court on 24
April 2015 that he
could not proceed with the application in good
conscience; on 22 July 2015 the court declined to proceed and
directed the applicant
to produce proof of compliance with s 127 of
the NCA; and on 9 September 2015 the applicant undertook to attend to
that defect.
The respondent delivered her answering affidavit on 25
August 2015 and a supplementary affidavit in September 2015.
[8]
The applicant delivered a replying affidavit on 18 March 2016 and
heads of argument
on 25 April 2016. The respondent delivered a
further affidavit in October 2016 responding to both. On 26 October
2016 the matter
was postponed
sine die
, with costs reserved.
[9]
Nothing then happened for approximately eight years. The chronology
of events prepared
by the applicant's counsel and uploaded to
CaseLines records the year 2016 and then jumps to October 2024, when
a hearing date
application form was submitted by the applicant's
newly appointed attorneys. Updated heads of argument were settled on
3 December
2025. A notice of substitution of attorneys, a notice of
set-down and a proposed joint practice note were served by email on
15
June 2026, and by the sheriff on 22 and 23 June 2026. The matter
was set down for hearing on 28 July 2026.
[10] No
explanation for the period between October 2016 and October 2024
appears anywhere in the papers.
When I raised the delay from the
bench, Adv Pool was unable to offer any explanation for it. I return
to this below.
[11]
After the matter was argued and judgment reserved, Adv Pool submitted
supplementary heads of
argument. These address six matters: the
existence of a prayer for a money judgment; the effect of s 131 and
the post-attachment
operation of s 127; proof of the shortfall; the
unsigned confirmatory affidavit; the delay; and the formulation of
interest and
the
in duplum
limit. I have had regard to them,
and I deal with the additional matters they raise where those matters
arise below. I am indebted
to counsel for the candour with which
several of them were dealt with.
C. SERVICE AND THE PROPRIETY OF
PROCEEDING IN THE RESPONDENT'S ABSENCE
[12]
Because the respondent did not appear, I satisfied myself before
proceeding that she had proper
and timeous notice of the hearing.
[13] The
applicant effected service of the notice of set-down, the notice of
substitution of attorney
and the joint practice note at [...]
K[...]-N[...], V[…] D[…] Street, Little Falls Extension
1, Roodepoort. That
is the respondent's residential address; it is
the address at which the vehicle was attached in 2014, and the
address from which
she has conducted this litigation. The sheriff's
return of 23 June 2026 records that, the complex gate having been
found locked
on an attempted service the previous day, service was
effected by affixing a copy of the process to the principal gate at
the premises,
after a diligent search and enquiry established that no
other manner of service was possible, in accordance with Rule
4(1)(a)(iv).
A photograph of the premises, bearing the door number
[…] and marked in manuscript “[...] K[...] N[...]”,
is
annexed to the return.
[14] In
addition, the applicant's attorney transmitted the notice of set-down
and the updated heads
of argument to the respondent's email address
on 15 June 2026, and a report confirming successful delivery to that
address is before
me. Service by email is competent under Rule 4A,
and the parties have by agreement conducted this litigation by email
for a number
of years.
[15]
Having regard to the proof of service now placed before me, I am
satisfied that the respondent
had proper and timeous notice of the
hearing. She has, moreover, placed her full opposition before the
court in successive affidavits.
I was accordingly entitled to
determine the matter on the papers in her absence.
[16] I
record one matter concerning the joint practice note. It is signed by
counsel for the applicant
alone; the space for the respondent's
signature is blank. It is, in truth, a unilateral practice note. The
applicant's attorney's
covering email of 15 June 2026 stipulated that
if the respondent did not revert by 13h00 on 19 June 2026 the
applicant would treat
her as agreeing and would upload the document
as a unilateral note. I have treated the note as the applicant's
document only.
D. THE APPROACH TO THE FACTS
[17] The
applicant seeks final relief on motion. The rule in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634E–635C therefore applies: final relief may be granted only
if the facts averred by the applicant that are admitted
by the
respondent, together with the facts alleged by the respondent,
justify that order. The respondent's version falls to be
rejected on
the papers only if it is so far-fetched or clearly untenable that the
court is justified in rejecting it merely on
the papers. The fact
that the respondent did not appear does not alter this test: her
opposition is contained in affidavits that
are before me, and it is
against those affidavits that the applicant's entitlement to final
relief must be measured.
[18] A
respondent who wishes to raise a real dispute must engage with the
facts rather than deny them
baldly. The converse is equally true. An
applicant who elects motion proceedings takes the risk that a genuine
dispute of fact
will emerge, and cannot complain if the application
is refused on that account.
[19] It
is necessary to say something about the replying affidavit. It deals,
ad seriatum, with paragraphs
1 to 35 of the answering affidavit. In
respect of paragraphs 36 to 199 — that is, the entire
paragraph-by-paragraph answer
to the founding affidavit, comprising
the bulk of the respondent's case — the deponent says only that
the paragraphs “appear
to contain a rehash of the allegations
already made”, that she does “not wish to burden the
court further”, and
that “[i]n so far as the allegations
contained in the paragraphs are not in accordance with the
submissions made by the Applicant
... same are denied.”
[20]
That is not an answer. It is a formula. The specific, documented
allegations in those paragraphs
— the date on the valuation,
the address to which the s 127 notices were directed, the arithmetic
in paragraph 11 of the
founding affidavit, the terms of annexure PMP8
— are met with nothing. Where a deponent to a replying
affidavit elects to
answer serious, particularised allegations with a
blanket denial, the court is entitled to treat those allegations as
not seriously
disputed.
E. THE STATUTORY FRAMEWORK
[21]
Section 131 of the NCA provides that if a court makes an attachment
order in respect of property
that is the subject of a credit
agreement, ss 127(2) to (9) and 128, read with the changes required
by the context, apply to the
goods attached under that order. It is
common cause, and the order of 4 August 2014 expressly recognised,
that this is such a case.
[22]
Section 127, so applied, requires the following. Within ten business
days after taking possession,
the credit provider must give the
consumer written notice setting out the estimated value of the goods
(s 127(2)). If the consumer
responds, the goods must be returned
unless the consumer is in default; if the consumer does not respond,
the credit provider must
sell the goods as soon as practicable for
the best price reasonably obtainable (s 127(4)). Within a further
period the credit provider
must give the consumer written notice of
the settlement value immediately before the sale, the gross and net
proceeds, and the
remaining settlement value or balance (s
127(5)(b)). If an amount remains, the credit provider “may
demand payment”
(s 127(7)), and only if the consumer fails to
pay within ten business days of that demand may the credit provider
commence proceedings
for judgment (s 127(8)). Section 127(10) makes
non-compliance an offence.
[23]
Section 168 governs how such notices are to be delivered: by hand,
fax, email, or registered
mail to the person's last known address,
unless another manner is prescribed.
[24]
Section 130(3)(a) is central. It 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 ...”
[25]
Section 130(4)(b) provides that if the court determines that the
credit provider has not complied
with the relevant provisions, 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.
[26] The
applicant relies on
Sebola v Standard Bank of South Africa Ltd
2012 (5) SA 142
(CC) and
Kubyana v Standard Bank of South Africa
Ltd
2014 (3) SA 56
(CC). Although those authorities were decided
in the context of s 129, the principle for which they stand is
directly applicable
to the delivery of a s 127 notice. The credit
provider bears the onus of placing before the court sufficient
evidence of the delivery
of the statutory notice. Proof of actual
receipt by the consumer is not required. Proof of
dispatch in the
manner the Act requires
is. A bare assertion that a notice was
sent, unsupported by any record of dispatch, does not discharge that
onus.
F. THE APPLICANT'S PRINCIPAL
ARGUMENT: THE UNRESCINDED DEFAULT JUDGMENT
[27] In
its supplementary heads the applicant first addresses whether the
notice of motion seeks a
money judgment. It plainly does: the notice
of motion prays for payment of R77 439.63 with interest, and these
are the second-stage
monetary proceedings contemplated by the order
of 4 August 2014. That much was never in issue. My concern has never
been the existence
of the prayer, but whether the applicant has
established its entitlement to the relief prayed.
[28] The
applicant's argument, developed in the 2016 heads and repeated in the
updated heads, is essentially
this: the respondent's real complaint
is about the default judgment of 4 August 2014; she has never applied
to rescind it; the
judgment stands until set aside; compliance with
the NCA was necessarily determined when that judgment was granted;
and she is
now trying to “close the barn door after the horse
has bolted”.
[29] The
first two propositions are correct. The default judgment stands until
set aside, and the
respondent cannot collaterally attack it in these
proceedings (
Colyn v Tiger Food Industries Ltd t/a Meadow Feed
Mills (Cape)
2003 (6) SA 1
(SCA)). To the extent that the
respondent asks me to order the applicant to rescind that judgment, I
cannot do so. There is no
counter-application and no rescission
application before me.
[30] The
third proposition, however, is wrong, and it is wrong in a way that
is fatal to the applicant's
case.
[31] The
default judgment of 4 August 2014 was a judgment for the return of
the vehicle. It was not,
and could not have been, a judgment for the
shortfall. The order granted the applicant
leave to apply
for
“[d]amages, if any, in an amount to be calculated in accordance
with Section 127(5) – (9) of the NCA”. The
court which
granted that order therefore expressly reserved, rather than
determined, the question of compliance with s 127(5) to
(9). Whatever
was decided in August 2014 about s 129, nothing was decided about s
127 — for the good reason that the vehicle
had not yet been
attached, valued or sold.
[32] The
present application is the application for which leave was reserved.
The compliance which
s 130(3)(a) requires me to be satisfied about is
compliance with s 127 as applied by s 131 — and specifically
with subsections
(2), (5), (7) and (8), all of which post-date the
default judgment. The applicant's contention that this was all
settled in 2014,
and that the respondent's only remedy was
rescission, cannot be sustained. It is an answer to a case the
respondent is not making.
G. COMPLIANCE WITH SECTION 127
(i) The s 127(2) notice —
annexure TM7
[33]
Annexure TM7 is a letter dated 17 September 2014, in the name of “S
George, WesBank”,
recording that the applicant was placed in
possession of the vehicle on or about 15 September 2014, that the
goods were valued
at R62 000.00 excluding VAT, and that the
respondent had ten business days from receipt within which to seek
reinstatement.
[34]
Three difficulties arise.
[35]
First
, the letter is addressed to “1[...] W[...] Street,
Fellside, 2[…]”. By 17 September 2014 the applicant knew
that this was not where the respondent lived. Its own sheriff had
attached the vehicle at [...] K[...] N[...], W[...] Street, Little
Falls, Roodepoort six days earlier, in the respondent's personal
presence. Its own founding affidavit, at paragraph 5, certifies
from
an inspection of its records that the respondent's residential
address is [...] K[...] N[...]. There is documentary evidence
(annexure PMP8) that the respondent's change of address had been
communicated in writing to the applicant's employees in March
and
April 2014. Section 168 requires delivery to the person's
last
known address
. Fellside was not the respondent's last known
address on 17 September 2014, and the applicant knew it.
[36]
Second
, and decisively, there is no evidence whatever that
annexure TM7 was ever dispatched. The document bears no postal
marking, no
franking, no registered mail receipt, no track-and-trace
record, and no proof of posting of any kind. The respondent took this
point in her answering affidavit. The applicant's answer, in
paragraph 35 of its replying affidavit, is this:
“
In amplification of the
denial it needs to be noted that the required notices in terms of
section 127
of the
National Credit Act are
generated automatically
and posted via normal post. There would be no record of same.”
[37]
That is not a denial. It is an admission. The applicant tells this
court, on oath, that it dispatches
statutory notices under
s 127
by
ordinary post and keeps no record of having done so. Ordinary post is
not one of the methods contemplated by
s 168.
And a credit provider
which keeps no record of dispatch places itself in the position of
being unable, ever, to discharge the onus
which
Sebola
and
Kubyana
place upon it. The applicant's own affidavit thus
establishes that it cannot prove compliance with
s 127(2).
[38] The
respondent goes further and says that the dates on annexures TM7 and
TM8 fall within the
period of the national postal strike of late
2014, so that the applicant could have had no reasonable expectation
of delivery.
The applicant has not answered this allegation at all —
not in the replying affidavit, not in the 2016 heads, and not in the
updated heads of December 2025. I do not need to make a finding about
the strike. It is enough that a specific and serious allegation,
capable of being met with evidence, has simply been ignored across
three sets of papers spanning a decade.
(ii) The
s 127(5)(b)
notice and
the
s 127(7)
demand — annexure TM8
[39]
Annexure TM8 is a letter dated 15 November 2014, in the name of “K
Topley, WesBank”,
also addressed to 1[...] W[...] Street,
Fellside. It sets out the calculation of the shortfall and calls upon
the respondent to
pay within ten business days of receipt. It is the
document which is said to constitute both the
s 127(5)(b)
notice and
the
s 127(7)
demand.
[40]
Every objection recorded above applies to annexure TM8 with equal
force. It is directed to an
address the applicant knew to be wrong;
there is no evidence of dispatch of any kind; and the applicant has
admitted that no such
evidence exists.
[41] The
consequence is significant.
Section 127(8)
permits a credit provider
to commence proceedings for judgment
only
if the consumer
fails to pay in response to a
s 127(7)
demand. If no demand was
delivered, the condition precedent to these proceedings was never
fulfilled. The respondent makes precisely
this point in her October
2016 affidavit. It has never been answered.
(iii) The applicant’s
“substantial compliance” argument
[42] In
its supplementary heads the applicant meets these difficulties in two
ways. It accepts, correctly,
that this is not a voluntary-surrender
case under
s 127(1)
, but a case in which the post-attachment regime
of
ss 127(2)
to (9) is incorporated by
s 131.
For that structural
proposition it relies on
FirstRand Bank Ltd t/a WesBank v Davel
[2019] ZASCA 168
,
Gcasamba v Mercedes-Benz Financial Services SA
(Pty) Ltd
[2022] ZAFSHC 197
and
BMW Financial Services (SA)
(Pty) Ltd v Moosa
[2020] ZAGPPHC 552. I accept the incorporation
of that regime — indeed I have already so held. But acceptance
of the framework
does not advance the applicant past the difficulty
that arises within it.
[43] The
applicant’s substantive answer is that its evidence of business
process — that
the notices were generated automatically and
posted in the ordinary course, with no proof of posting retained —
constitutes
substantial compliance which, on a holistic application
of
Plascon-Evans
, ought to be accepted. Counsel candidly
acknowledged that the applicant “must stand or fall by”
that evidence and can
provide nothing further. I cannot accept the
submission, for three reasons.
[44]
First
,
s 130(3)(a)
does not pose a
Plascon-Evans
question. It sets an objective threshold: the court “may
determine the matter only if” it is “satisfied”
that the required procedures were complied with.
Plascon-Evans
governs how a court resolves disputed facts on motion; it does not
lower the level of satisfaction the statute demands before the
court
may act at all.
[45]
Second
,
Sebola
and
Kubyana
require proof that
the notice was dispatched in a manner the Act permits. Section 168
permits delivery by hand, fax, email or registered
mail. Ordinary
post is not among them. Taking the applicant’s evidence at its
highest — that the notice was generated
and committed to
ordinary post — that is not compliance, substantial or
otherwise, with the prescribed manner of delivery.
Substantial
compliance is a doctrine that may forgive an imperfection in an
otherwise proper method; it cannot supply an entire
absence of any
permitted method, coupled with an admitted absence of any proof of
dispatch.
[46]
Third
, the notices were directed to an address the applicant’s
own founding affidavit shows it knew to be wrong. A notice sent by
a
non-prescribed method, to a known-incorrect address, with no proof of
dispatch, cannot constitute substantial compliance on any
view. The
applicant’s frank concession that no proof exists and none can
be produced does not cure the defect; it confirms
it.
(iv) Conclusion on s 127
[47] I
am not satisfied that the procedures required by s 127, as applied by
s 131, have been complied
with. Section 130(3)(a) therefore precludes
me from determining this matter in the applicant's favour.
H. THE QUANTUM
[48]
Even if I were wrong about the NCA, the applicant faces a second,
independent difficulty. It
has not proved what it claims.
[49]
Clause 21.5 of the agreement entitles the applicant to obtain
judgment on the amount stated in
a manager's certificate “unless
you disagree with such amount and are able to satisfy the court that
the amount in the certificate
is incorrect.” A certificate of
balance signed by Ms M Vorster on 10 February 2015 certifies
indebtedness of R77 439.63.
In my view the respondent has shown,
largely on the applicant's own documents, that the correctness of
that figure is genuinely
in dispute.
[50] The
founding affidavit contradicts itself. Paragraph 11 states that the
balance outstanding,
and consequently the damages sustained, “amounts
to R249 685.29”, and in the same breath annexes a certificate
certifying
R77 439.63. Neither figure is reconcilable with annexure
TM8, which puts the settlement value immediately before the sale at
R180
821.42, or with paragraph 13 of the replying affidavit, which
gives the balance owing at repossession as R180 509.68. The applicant
has never corrected paragraph 11, although the error was raised with
its attorneys and its holding company in May 2015, in open
court in
2015, in the answering affidavit of August 2015, and again in October
2016. Eleven years have passed and the founding
affidavit stands
unamended.
[51] In
its supplementary heads the applicant candidly concedes that
paragraph 11 contains a serious
numerical inconsistency which “cannot
simply be ignored or repaired by submission”. It submits,
however, that the court
should distinguish the erroneous narrative in
paragraph 11 from the “operative” amount reflected in the
prayer, the
certificate of balance and annexure TM8; that the
certificate is at least prima facie proof under clause 21.5; and that
the respondent,
who attacks the reliability of the figure, has
produced no counter-certificate or alternative calculation of her
own.
[52] I
am unable to accept that the difficulty is so confined. A certificate
under clause 21.5 is
only
prima facie
proof, and its
evidential weight is displaced where the applicant’s own
founding affidavit and annexures are mutually irreconcilable
and the
very components of the calculation are unproven. Here the proceeds
said to have been realised on the sale are not independently
established, and the valuation on which the shortfall depends
post-dates the sale. A consumer does not bear an onus to produce
a
reconstructed counter-calculation in order to point out that the
credit provider’s own documents do not add up. The concession
on paragraph 11, taken with the unproven proceeds and the post-dated
valuation, leaves the certified figure not merely criticised
but
unproven.
[53] The
agreement is mischaracterised. Paragraphs 6 and 10 of the founding
affidavit describe the
agreement as a “Rental Agreement”,
while the certificate of balance, annexures TM7 and TM8 and the
agreement itself
describe an instalment sale agreement. The measure
of loss and the applicable statutory regime differ between the two.
The respondent
took this point in terms; it has never been answered.
[54] The
valuation post-dates the sale, and the proceeds are not proved.
Annexure TM5, the valuation
certifying a forced sale market value of
R62 000.00 excluding VAT, is dated 13 January 2015 — two months
after the vehicle
was sold on 14 November 2014 — and describes
the value as one that “will be utilized as a reserved price for
public
auction purposes”, in the future tense, for an auction
that had already occurred. No auction record, sale agreement or proof
of receipt of the R100 320.00 is before me, and the applicant's own
tax invoice of 14 November 2014 (the respondent's annexure
PMP16)
reflects a different figure of R125 251.72, unexplained. The
applicant's assertion that the respondent “has produced
no
evidence challenging the calculation” inverts the onus: it is
for the applicant to prove its damages.
[55] The
disputed entries. Annexure PMP23, the applicant's own certificate of
compliance signed by
Ms Badena Mohamed, certifies that “[n]o
disputes exist in respect of entries made as contemplated in section
111 of the Act”.
Section 111(2) obliges a credit provider who
receives a written notice of dispute to respond to it before
enforcing a default arising
from the disputed entry. On the
respondent's version — supported by annexures PMP4, PMP6, PMP7
and PMP8, whose authenticity
is not challenged — she had raised
written disputes about the interest rate and about insurance premiums
debited without
her consent, and those disputes were live when the
certificate was signed. The applicant answers that her queries “had
been
addressed and corrected by February 2013”. That deals with
the insurance premiums. It does not deal with the interest rate,
which the applicant nowhere suggests was ever corrected.
[56]
These features, taken together, satisfy me that the correctness of
the certified balance is genuinely
in dispute and cannot be resolved
on the papers.
I. THE CONFIRMATORY AFFIDAVIT OF MR
LETSOALO
[57] A
discrete point requires mention. The applicant denies that the
respondent's meeting with Mr
Wilson Letsoalo in September 2013 ever
took place, and annexes a confirmatory affidavit of Mr Letsoalo,
marked “WB1”,
to that effect.
[58] The
document before me is unsigned. It is undated (“DONE at
________ on the ___ DAY of
MARCH 2016”). The attestation clause
is blank, the commissioner's name, capacity and address are blank,
and it refers in
the same breath to March 2016 and January 2016. It
is not an affidavit. In its supplementary heads the applicant
properly accepts
that it must be disregarded, and I do so.
[59] The
applicant submits that nothing turns on the meeting. The point is not
central to the disposition.
But once WB1 falls away, the denial of
the meeting is a bare one, deposed to by a deponent who does not
claim personal knowledge,
against a respondent who has produced a
contemporaneous email from the applicant's own employee (annexure
PMP8) referring to the
meeting and the agreed actuarial audit. On
Plascon-Evans
the respondent's version on that limited issue
must prevail.
J. THE DELAY
[60] The
matter was postponed
sine die
on 26 October 2016 with costs
reserved. It was re-enrolled in 2024 and heard in 2026. The papers
are silent as to what happened
in between. When I raised the delay
from the bench, counsel was initially unable to explain it; in the
supplementary heads he tentatively
suggests that it “may have
been” attributable to the transfer of the file from the
applicant’s former attorneys
to its present attorneys of
record. That suggestion is advanced tentatively, is not supported by
any evidence, and does not account
for a dormancy of some eight years
— least of all the period preceding any such transfer.
[61] A
delay of that magnitude in a claim for R77 439.63, prosecuted against
an unrepresented litigant,
calls for explanation. Documents,
deponents and recollections do not improve with eight years of
inactivity. Mr Letsoalo is described
as a former employee. The
deponents to the applicant's affidavits have not been heard from
since 2016.
[62] I
do not decide this application on delay alone, and I make no finding
of abuse of process. But
the delay is relevant to costs, and it bears
on the disposition I should adopt under s 130(4)(b), to which I now
turn.
K. THE APPROPRIATE ORDER
[63]
Section 130(4)(b) enjoins a court which determines that a credit
provider has not complied with
the relevant provisions of the Act to
adjourn the matter and to set out the steps to be completed before it
may be resumed. Ordinarily
I would do exactly that. I am satisfied
that it would serve no purpose here, for three reasons.
[64]
First
, the applicant has already been given that indulgence,
more than once. On the uncontradicted evidence, this court adjourned
the
matter in April, July and September 2015 for the specific purpose
of enabling the applicant to produce proof of compliance with
s 127,
and directed it in terms on 22 July 2015 to do so. The applicant
undertook on 9 September 2015 to attend to it. The matter
then stood
postponed
sine die
from October 2016 to 2024. In the eleven
years since the direction was given, the applicant has produced
nothing. It has told this
court on oath that nothing exists to
produce.
[65]
Second
, the defect in the s 127(2) notice is by its nature
incurable. The purpose of that notice is to give the consumer the
opportunity,
within ten business days, to reinstate the agreement and
resume possession of the vehicle before it is sold. The vehicle was
sold
in November 2014 and has long since passed into the hands of a
third party. No order I make can restore to the respondent the
opportunity
that the section was designed to give her.
[66]
Third
, and independently of the NCA, the applicant elected to
pursue a disputed claim for damages by way of motion proceedings, and
a
genuine dispute of fact has emerged on the quantum which cannot be
resolved on affidavit.
[67]
Against that background I must address the two courses the applicant
urges in its supplementary
heads as alternatives to dismissal.
[68] The
first is severance. The applicant submits that interest is severable,
and that I may grant
judgment for the capital of R77 439.63 while
limiting or deferring interest so as to respect the
in duplum
ceiling. That submission cannot succeed. Section 130(3)(a) bars me
from determining the matter in the applicant’s favour
at all
where compliance with s 127 is not shown; the bar is not confined to
the interest component. Independently, s 127(8) makes
a delivered s
127(7) demand a precondition to the very institution of proceedings
for judgment; absent proof of that demand, the
capital claim is
itself premature. Severance presupposes a competent capital claim to
which interest attaches as an incident. Here
it is the capital claim
that is barred, and there is nothing to sever.
[69] The
second is a referral of the quantum to oral evidence under Rule
6(5)(g), which the applicant
seeks in the further alternative. I have
considered it and I decline it. A referral cannot cure the s 127
defect, which is a legal
bar and, as to the reinstatement notice, an
incurable one because the vehicle was sold years ago. The applicant’s
own supplementary
heads accept that a referral “cannot be used
to mend a case devoid of essential evidence”, and the essential
proof
of dispatch admittedly does not exist. As to the quantum, a
referral more than eleven years after the events, upon a documentary
record that both sides describe as degraded and with the applicant’s
deponents long since departed, in respect of a claim
of some R77 000,
would be neither proportionate nor in the interests of justice. The
applicant has had ample opportunity, across
three sets of affidavits
and eleven years, to establish its claim. The proper order is that
the application be dismissed.
[70] I
emphasise what I am not deciding. I am not deciding that the
respondent owes the applicant
nothing. I am not setting aside the
default judgment of 4 August 2014, which stands. I am not making any
finding that any person
has committed an offence or has deliberately
misled this court; the respondent's allegations to that effect are
serious, but this
is not the forum in which they can properly be
investigated, and the deponents concerned have not been heard. What I
decide is
that this applicant, on these papers, has not established
an entitlement to the relief it seeks.
L. INTEREST — IN DUPLUM
[71]
Although the point does not arise on the order I make, I record it
because it was addressed in
argument. The applicant claims interest
at 14% per annum from 15 November 2014 to date of payment — a
period which by the
date of hearing exceeds eleven and a half years.
In its supplementary heads the applicant properly concedes that, on
the capital
of R77 439.63, the common-law in duplum ceiling would
have been reached at about the turn of 2021 to 2022, and that any
interest
awarded must be limited accordingly; it proposes, in
mitigation, that interest run only from the resumption of proceedings
in June
2026, alternatively from the date of order. The common-law
in
duplum
rule, and s 103(5) of the NCA in respect of credit
agreements, limit the interest that may accrue so that it does not
exceed the
outstanding capital. Neither the founding papers nor the
draft order acknowledges any such cap. Had I granted the relief
sought,
I would in any event not have granted interest exceeding the
capital of R77 439.63.
M. COSTS
[72]
Costs follow the result. The respondent has been substantially
successful.
[73] The
respondent did not appear at the hearing, but she is nonetheless
entitled to her costs of
opposition. As a litigant in person she is
not entitled to recover fees for professional legal services she did
not incur. She
is entitled to her necessary disbursements —
filing, printing, copying, and the like — on the party and
party scale.
The costs reserved on 26 October 2016 should follow the
same course.
N. ORDER
[74] In
the result, I make the following order:
1. The application is
dismissed.
2. The applicant is
ordered to pay the respondent's costs, such costs to be limited to
the respondent's necessary disbursements,
taxed on the party and
party scale, scale A, and to include the costs reserved on 26 October
2016.
J DU PLESSIS
ACTING JUDGE OF THE
HIGH COURT
GAUTENG
DIVISION, PRETORIA
APPEARANCES
For
the applicant:
Adv
D M Pool
Instructed
by:
Strauss
Daly Inc, Pretoria
For
the respondent:
In
person — no appearance at the hearing
Date
of hearing:
28
July 2026
Date
of judgment:
29
July 2026