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[2016] ZASCA 9
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Naidoo v Standard Bank of South Africa (20595/14) [2016] ZASCA 9 (9 March 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20595/14
Not
Reportable
In
the matter between
NAVIN
NAIDOO
APPELLANT
and
THE
STANDARD BANK OF SOUTH AFRICA
LIMITED
RESPONDENT
Neutral
citation:
Navin
Naidoo v The Standard Bank of South Africa
(20595/14)
[2016] ZASCA 9
(9 March 2016)
Coram
:
Majiedt, Mbha and Mathopo JJA and Fourie and Victor AJJA
Heard:
26 FEBRUARY
2016
Delivered:
9 MARCH 2016
Summary:
National Credit Act
34 of 2005
– notice in terms of
s 129(1)
– purpose is to
bring default to the attention of a consumer – on appellant’s
own pleadings he had been aware
of the notice and had responded
thereto – defence amounts to an abuse of process – appeal
dismissed.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Masipa and Bam JJ and Strauss
AJ sitting as court of appeal):
1
The appeal is dismissed
with costs.
JUDGMENT
MAJIEDT
JA (Mbha and Mathopo JJA and Fourie and Victor AJJA concurring):
[1]
The appellant, Dr Navin Naidoo, appeals with special leave of this
court against the dismissal of his appeal by the full court
of the
Gauteng Division, Pretoria (Masipa and Bam JJ and Strauss AJ). The
full court confirmed the default judgment granted by
J W Louw J
against the appellant on the application of the respondent, The
Standard Bank of South Africa.
[2]
The respondent sued in the trial court on a loan advanced to the
appellant, secured by a mortgage bond. The appellant had fallen
into
arrears with his payments and after demand, a summons was issued for
payment in the sum of R3 412 946.69, interest,
related
insurance premium payments and for costs. The respondent averred in
its declaration that it had complied with the provisions
of
s 129(1)
and s 130 of the National Credit Act 34 of 2005 (the Act). In respect
of s 129 it averred that ‘(o)n or about 9 March 2010
it
delivered a notice as contemplated by Section 129(1)(a) of the Act to
the Defendant [Respondent]’. To this the appellant
pleaded as
follows in his first special plea:
‘
The
Defendant has responded to the Plaintiff’s section 129 Notice.
The Defendant’s reply to the Plaintiff was within
20 days of
having been made aware of the Plaintiff’s section 129 Notice.
The Plaintiff has failed to acknowledge the Defendant’s
response to its section 129 Notice.
’
The
appellant did not dispute that he was in arrears with his payments.
[3]
At the trial the appellant moved a substantive application for
postponement and, when it was refused, his counsel withdrew from
the
proceedings. The trial court then proceeded to grant default judgment
in the amount claimed. The appellant then appealed to
the court
below, which refused leave to appeal, resulting in this court
granting the appellant leave to appeal to the full court.
The latter
dismissed the appeal, holding that on his own pleadings the appellant
had admitted that the s 129(1) notice had come
to his attention.
[4]
The crisp issue is whether the full court had erred in its finding
above. In relevant part s 129 of the act reads as follows:
‘
129
Required
procedures before debt enforcement
(1)
If
the consumer is in default under a credit agreement, the credit
provider–
(a)
may
draw the default to the notice of the consumer in writing and propose
that the consumer refer the credit agreement to a debt
counsellor,
alternative dispute resolution agent, consumer court or ombud with
jurisdiction, with the intent that the parties resolve
any dispute
under the agreement or develop and agree on a plan to bring the
payments under the agreement up to date; and
(b)
Subject
to section 130(2), may not commence any legal proceedings to enforce
the agreement before-
(i)
First
providing notice to the consumer, as contemplated in paragraph (a),
or in section 86(10), as the case may be; and
(ii)
Meeting
any further requirements set out in section 130.
’
[5]
The ultimate purpose of s 129 is to ensure that a consumer is
notified of his or her default and of the various options available
to him or her. Relying on the Constitutional Court’s judgments
in
Sebola & another v Standard Bank of South Africa Limited &
another
(CCT 98/11)
[2012] ZACC 11
;
2012 (5)
SA 142
(CC) and
Kubyana v Standard Bank of South Africa Limited
(CCT 65/13)
[2014] ZACC 1
;
2014 (3) SA 56
(CC), it was contended in the
appellant’s heads of argument that there has not been
compliance with the provisions of s 129(1).
In particular, emphasis
was placed on the fact that a credit provider must:
(a) show that it has
effected the notice by registered mail;
(b) prove that the
notice was delivered to the correct post office; and
(c)
in order to prove delivery,
furnish a post-despatch (track and trace) printout from the
post
office website.
See:
Sebola
paras 68, 75 and 76. But this line of argument was wisely not pursued
during oral argument by counsel (who did not draft the heads).
All
that is required of a credit provider is to ‘satisfy the court
from which enforcement is sought that the notice, on a
balance of
probabilities, reached the consumer’ (
Sebola
para 74).
Ultimately, the question is whether delivery as envisaged in the Act
has been effected (
Kubyana
paras 31, 36, 39,
52 and 53).
[6]
Before us the appellant’s counsel, after abandoning this
argument, instead sought to rely on an argument that the respondent
had failed to consider the appellant’s response to the notice.
When pressed on this, counsel very fairly conceded that this
new
point does not fall within the ambit of the special leave, nor had it
been considered at all by the full court since that was
not a ground
of appeal before it.
[7]
The manner in which the appellant conducted his litigation must be
strongly deprecated. Not only is he a qualified medical doctor
(practising in Australia), but he practised as an advocate at the
Pretoria Bar until December 2011. He is therefore not only a
well-educated man, but also schooled in the law. His fanciful
reliance on a technical argument regarding a strict mechanical
compliance
with s 129(1) in the face of an admitted receipt of and
response to the notice, strikes me as rather cynical. His ‘defence’
amounts to an abuse of s 129(1) and the application for postponement
followed by the withdrawal of his counsel immediately thereafter,
appears to be an ill-conceived stratagem. After a protracted
exercise in futility through three courts, it is time that he
meets
his obligations to the bank.
[8]
The respondent sought the costs of two counsel on the basis that it
was reasonable for the bank to protect its interests by
briefing two
counsel. I disagree. This is a straightforward matter and, while the
bank is entitled to protect its interests, this
case does not justify
the employment of two counsel.
[9]
The appeal is dismissed with costs.
________________________
S A MAJIEDT
JUDGE OF APPEAL
APPEARANCES
For Appellant:
N Snellenburg SC
Instructed
by:
Spies Bester Potgieter Attorneys, Pretoria
Honey Attorneys, Bloemfontein
For Respondent:
B H Swart SC
with M T Shepherd
Instructed
by:
Hack Stupel & Ross Attorneys, Pretoria
Lovius Block, Bloemfontein