Wesbank v Ralushe

• Jurisdiction: South Africa
• Citation: 2022 (2) SA 626 (ECG)

Wesbank v Ralushe
2022 (2) SA 626 (ECG)

2022 (2) SA p626

Citation	2022 (2) SA 626 (ECG)
Case No	1149/2018
Court	Eastern Cape Division, Grahamstown
Judge	Lowe J
Heard	August 31, 2021
Judgment	August 31, 2021
Counsel	S Sephton for the plaintiff.; C Pangwa (attorney) for the defendant.

Flynote : Sleutelwoorde

Credit agreement — Consumer credit agreement — Debt enforcement — Preliminary procedures — Notice of default — Delivery — Proof — Section 129(7) of NCA creating presumption of delivery where postal service confirms delivery to relevant post office in writing — Track-and-trace report sufficient — Delivery or reception of notification slip legally irrelevant but could be presumed on overall probabilities — National Credit Act 34 of 2005, s 129(7).

Headnote : Kopnota

Section 129 of the National Credit Act 34 of 2005 requires a credit provider to notify a defaulting consumer of its default in writing before taking further steps. Three new subsections, s 129(5) – (7), were added to s 129 in 2015 to clarify the notification process in the light of the Constitutional Court's judgments in Sebola and Kubyana. Crucially, s 129(7) stipulates that delivery by registered mail is satisfied by 'written confirmation by the postal service . . . of delivery to the relevant post office or postal agency'.

In the present case the delinquent consumer (the defendant) denied that the credit provider (the plaintiff) had sufficiently proved compliance with s 129. He specifically denied having received the post-office slip informing him of the delivery of the s 129 notice to his local post office. It was common cause that the s 129 notice had arrived at the correct post office and that the defendant did not receive (or collect) the s 129 notice. It was similarly common cause that the same s 129 letter together with proof of posting and a track-and-trace report was attached to the summons served on the defendant a few months later.

The issues before court were (i) whether the plaintiff had sufficiently complied with s 129; (ii) the issue of proof of delivery of the notice; (iii) the consequence of the defendant's evidence of non-receipt of the delivery slip; and (iv) whether the attachment of a s 129 notice constituted sufficient compliance with s 129.

Held

The s 129 notice retained its warning function, affording the consumer an opportunity to rectify default to avoid legal action. Section 129's 'gateway' role meant that non-compliance could not be cured by attaching the notice to a summons. (See [18], [24] – [26].)

While s 129 did not specifically deal with the issue of proof of non-receipt, the presumption in s 129(7) — that proof of delivery was satisfied by 'written confirmation by the postal service . . . of delivery to the relevant post office' — was rebuttable only by facts showing failure of the prior fact, ie 'written confirmation', on a balance of probabilities. In the present case the plaintiff's track-and-trace report of delivery to the relevant post office was sufficient. Whether the defendant received a notification slip or whether it was delivered to him was legally irrelevant: once delivery to the correct post office was proved and not rebutted, that was the end of the matter (See [40], [54] – [55], [60].) The defendant's statement that he did not receive the postal slip was, if at all relevant, insufficient to dislodge the overwhelming

2022 (2) SA p627

probabilities in the plaintiff' favour that it was indeed delivered to the defendant's address. (See [66] – [67].)

Since the defendant failed to rebut the presumption of delivery, the plaintiff established compliance with s 129 and would prevail (see [67], [69]).

Cases cited

Amardien and Others v Registrar of Deeds and Others 2019 (3) SA 341 (CC): dicta in paras [57] – [59] applied

Benson and Another v Standard Bank of South Africa (Pty) Ltd and Others 2019 (5) SA 152 (GJ): not followed

FirstRand Bank Ltd t/a First National Bank v Moonsammy t/a Synka Liquors 2021 (1) SA 225 (GJ): approved

Goldfields Confectionery and Bakery (Pty) Ltd v Norman Adam (Pty) Ltd 1950 (2) SA 763 (T): referred to

Kubyana v Standard Bank of South Africa Ltd 2014 (3) SA 56 (CC) (2014 (4) BCLR 400; [2014] ZACC 1): applied

National Employers' General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E): dictum at 440D – G applied

National Employers Mutual General Insurance Association v Gany 1931 AD 187: applied

Scagell and Others v Attorney-General, Western Cape, and Others 1997 (2) SA 368 (CC) (1996 (2) SACR 579; 1996 (11) BCLR 1446): referred to

Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC) (2012 (8) BCLR 785; [2012] ZACC 11): applied

Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA): dictum in para [5] applied

S v Zuma & Others 1995 (1) SACR 568 (CC) referred to.

Legislation cited

The National Credit Act 34 of 2005, s 129: see Juta's Statutes of South Africa 2020/21 vol 2 at 1-556.

Case Information

S Sephton for the plaintiff.

C Pangwa (attorney) for the defendant.

An action for relief arising from an instalment sale agreement. The issues were restricted to whether the plaintiff sufficiently established compliance with s 129 of the National Credit Act 34 of 2005, as amended by Act 19 of 2014.

Order

1.

The instalment sale agreement concluded between plaintiff and defendant on 22 June 2011 is cancelled.

2.

Defendant is ordered to return the 2011 Hyundai Sonata 2.4 GLS Executive A/T with engine No xxx, chassis No xxx and registration No xxx to plaintiff.

3.

Failing return of the aforesaid vehicle, the sheriff is authorised to attach, seize and hand over the goods, being a 2011 Hyundai Sonata 2.4 GLS Executive A/T with engine No xxx, chassis No xxx and registration No xxx to plaintiff

4.

Defendant is to pay plaintiff's costs of suit on the magistrates' court scale.

2022 (2) SA p628

Judgment

Lowe J:

Introduction

[1] Plaintiff instituted action against defendant on 18 April 2018 seeking relief arising from an instalment sale agreement in terms of which plaintiff sold to defendant a 2011 Hyundai motor vehicle, the agreement dated 22 June 2011.

[2] Plaintiff sought relief claiming return of the vehicle based on defendant's alleged failure to make the final balloon payment instalment of R89 970 on 30 June 2017.

[3] Plaintiff alleged compliance with s 129 of the National Credit Act 34 of 2005 (NCA).

[4] The matter was defended on various grounds, but on the day of the trial the defences fell away save for reliance on the alleged failure to comply with s 129 of the NCA.

[5] This was recorded in a rule 37 minute as follows:

'The defendant makes the following admissions:

1.

The defendant signed the agreement dated 22 June 2011, attached to the particulars of claim B1 – B21;

2.

The defendant is indebted to the plaintiff in respect of the balloon instalment as set out in paragraph 3.8 of the particulars of claim;

3.

The defendant has not paid this amount to date;

4.

The defendant persists in his plea that prior to these proceedings being instituted, the plaintiff did not give the defendant notice in terms of section 129(1)(a).'

[6] The evidence and the parties' argument was then by agreement restricted to the s 129 NCA issue.

The relevant agreed facts

[7] It is common cause that:

[7.1]

On 8 February 2018 a s 129 NCA letter was prepared, relevant to defendant's default, by attorneys Joubert Galpin & Searle, which complied satisfactorily with s 129.

[7.2]

The said letter was dispatched to defendant's home address, 45 [KC], Queenstown 5319, by registered mail on 12 February 2018.

[7.3]

The instalment sale agreement reflects the said address as both defendant's physical and postal address. [1]

[7.4]

The said notification was received at the Port Elizabeth Post Office on 13 February 2018 and went to Queenstown (the correct post office) via East London, the 'first notification to recipient' sent to the said physical address on 15 February 2018.

2022 (2) SA p629

Lowe J

[7.5]

Being uncollected and on 15 March 2018, the said s 129 letter was returned to Joubert Galpin & Searle.

[7.6]

Defendant did not receive (or collect) the said letter accordingly.

[7.7]

The same s 129 letter with proof of posting and the track-and-trace report was attached to the summons served on and received by defendant some months later in April 2018.

[7.8]

Defendant has to date failed to make payment of the outstanding balloon sum aforesaid.

The disputed facts

[8] Defendant, while acknowledging the track-and-trace post office reports showing the first dispatch to recipient at his physical address, does not accept that the notice in terms of s 129 is sufficiently proved and denies receipt of the relevant postal slip despite regularly checking his home postbox. [2]

[9] In this regard plaintiff relies on the track-and-trace reports and the subsequent service of the s 129 letter with the summons.

The essential issues

[10] From the above the issues to be decided in this matter are:

[10.1]

Generally, whether plaintiff has complied sufficiently with s 129.

[10.2]

Specifically, the issue of proof of the delivery of the notification [and the] dispute as to the s 129 notice and 'First Notice to Recipient' referred to in [8] and [9] above.

[10.3]

The consequence, if any, of defendant's evidence of non-receipt of the registered slip at his home address.

[10.4]

The efficacy of the use of defendant's physical domicilium address as per the instalment sale agreement, being 45 [KC], Queenstown.

[10.5]

The issue of the attachment of the s 129 notice to the summons as being s 129 compliance (as envisaged by applicant), in the event of there being otherwise non-compliance with s 129 in the...