Standard Bank of South Africa Ltd v Rockhill and Another

• Jurisdiction: South Africa

Standard Bank of South Africa Ltd v Rockhill and Another
2010 (5) SA 252 (GSJ)

2010 (5) SA p252

Citation	2010 (5) SA 252 (GSJ)
Case No	09/56251
Court	South Gauteng High Court, Johannesburg
Judge	Epstein AJ
Heard	March 11, 2010
Judgment	March 11, 2010
Counsel	S Ress for the applicant.; D Williams for the defendants.

Flynote : Sleutelwoorde G

Credit agreement — Consumer credit agreement — Debt enforcement — Proceedings in anticipation of judicial proceedings — Notice of default — Delivery — Requirements — Default to be 'drawn to the notice of' H consumer — Credit provider discharging obligation by sending notice to postal address selected by consumer — Deemed received on day on which sent — National Credit Act 34 of 2005, ss 129 and 130.

Credit agreement — Consumer credit agreement — Debt enforcement — Proceedings in anticipation of judicial proceedings — Notice of default — I Delivery — Requirements — Default to be 'drawn to the notice of' consumer — Non-compliance not constituting bona fide defence in summary judgment proceedings — National Credit Act 34 of 2005, ss 129 and 130(4)(b)).

Headnote : Kopnota

Before a credit provider proceeds to enforce a debt against a consumer who is in J default under a credit agreement, s 129 of the National Credit Act 34 of 2005 (NCA)

2010 (5) SA p253

requires that the credit provider draw the default to the notice A of the consumer in writing. The section does not require the consumer to receive the notice. The credit provider discharges its obligation of delivering the notice by sending it to the postal address selected by the consumer. (Paragraph [5] at 255D and 255F.)

The NCA has as its primary purpose the protection of consumers, and it sets a B minimum standard for protection. However, this does not preclude parties from incorporating into their agreements additional protection for the consumer. An agreement providing for an extended period by which notices are deemed to have been received, is not repulsive to the general purpose of the Act. (Paragraph [13] at 257B - C.)

Section 130 is concerned with specifying the least number of days which must have elapsed before a credit provider may approach the court. The C interpretation which has been given to these sections is that the notice is deemed to have been received on the day on which it was sent. Nevertheless, ss 129 and 130 do not forbid the parties from agreeing that a notice despatched in terms of the NCA will only be deemed to have been received a certain amount of days after its posting. (Paragraph [14] at 257D - F.)

Non-compliance with the s 129 requirement does not constitute a bona fide D defence in summary judgment proceedings. Once it is established at trial stage that the credit provider has not complied with s 129, the trial will be adjourned and an order made setting out the steps the credit provider must complete before the trial is resumed (s 130(4)(b)). (Paragraph [17] at 258E - G.)

[See also FirstRand Bank Ltd v Dhlamini 2010 (4) SA 531 (GNP); and E Absa Bank Ltd v Prochaska t/a Bianca Cara Interiors 2009 (2) SA 512 (D) - Eds.]

Cases Considered

Annotations:

Reported cases

Jaga v Dönges NO and Another; Bhana v Dönges NO and Another 1950 (4) SA 653 (A): referred to F

Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A): referred to

Marques v Unibank Ltd 2001 (1) SA 145 (W) ([2000] 4 All SA 1): referred to

Munien v BMW Financial Services (SA) (Pty) Ltd and Another 2010 (1) SA 549 (KZD): applied

Principal Immigration Officer v Hawabu And Another 1936 AD 26: referred to G

Standard Bank of South Africa Ltd v Van Vuuren 2009 (5) SA 557 (T): not followed.

Statutes Considered

Statutes

The National Credit Act 34 of 2005, ss 129, 130 and 130(4)(b): see Juta's Statutes of South Africa 2009/10 vol 2 at 1-597. H

Case Information

An application by a credit provider for summary judgment.

S Ress for the applicant.

D Williams for the defendants.

Cur adv vult. I

Postea (March 11).

Judgment

Epstein AJ:

[1] The plaintiff, a credit provider registered in terms of s 40 of the National Credit Act 34 of 2005 (the NCA), applies for summary J

2010 (5) SA p254

Epstein AJ

A judgment against the first and second defendants for payment of the sum of R1 646 815,09, which amount is alleged to be the balance of the principal debt, together with finance charges due and owing in respect of moneys lent and advanced by the plaintiff to the defendants. The amount is secured by a mortgage bond, a copy of which is attached to the B plaintiff's summons. The aforesaid amount is alleged to be due and payable by reason of the failure of the defendants, notwithstanding demand, to pay punctually the instalments as provided for in the mortgage bond. The plaintiff also seeks interest, an order declaring the immovable property executable, and attorney-and-client costs.

C [2] Sections 129 and 130 of the NCA, which must be read together, are central to the application for summary judgment. The following subsections are relevant:

'129 Required procedures before debt enforcement

(1) If the consumer is in default under a credit agreement, the credit D 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 E 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)

F meeting any further requirements set out in section 130.

(2)

130 Debt procedures in a Court

(1) Subject to subsection (2), a credit provider may approach the court for an order to enforce a credit agreement only if, at that time, the G consumer is in default and has been in default under that credit agreement for at least 20 business days and -

(a)

at least 10 business days have elapsed since the credit provider delivered a notice to the consumer as contemplated in section 86(9), or section 129(1), as the case may be;

(b)

in the case of a notice contemplated in section 129(1), the H consumer has -

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