NOT REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG

Case No.:08125/2012
DATE:01/02/2013

In the matter between:
CLITUS MOCWIRI										 Applicant
and
S A TAXI DEVELOPMENT (PTY) LTD							Respondent

JUDGMENT

MPHAHLELE AJ:
[1] This is an application for rescission of the judgment of this court which was granted by default on 31 May 2012 for the return of the motor-vehicle and the sheriff repossessed the vehicle pursuant to a warrant of execution. The application is based on the provisions of rule 42 of the uniform rules of the High Court in that the judgment was sought and/or granted erroneously; or alternatively on the provisions of rule 31 in that there is good cause to rescind the judgment since the applicant was not in wilful default of defending the action and has a defence to the respondent’s claim.

[2] The applicant denies the summons was served on his father at his chosen domicilium citandi at executandi as stated on the sheriff’s return of service. To this end, the applicant submitted an affidavit by his father confirming that he was never served with the summons by the sheriff. It was submitted for the respondent that the denial by the father does not help the applicant as the summons was served at this domicilium. The Counsel for the applicant therefore submitted that the failure to serve the summons on the applicant would render the proceedings a nullity and warrant the judgment being rescinded in terms of rule 42. The respondent contends that the summons has come to the applicant’s notice but failed to respond thereto. The applicant accordingly remained in wilful default. The judgment was granted upon the correct information and the Registrar of this Court relied on the return of service which proved correct and proper service of the summons. The judgment was not sought or granted in error and this rescission application does not fall within the ambit of rule 42.

[3] The applicant denies that he received the notice in terms of section 129 of the National Credit Act 34 of 2005 (“the NCA”). To this end the respondent’s Counsel submitted that the letter in terms of section 129 was sent to the applicant by registered post and a track and trace report wassubmitted as the proof thereof. In terms of the said report, the letter has  been returned back to the sender on 23 March 2012.

[4] Section 129 of the NCA is a prerequisite for the institution of legal proceedings. The main aim of section 129 (1) (a) is to place a duty on a credit provider to notify the consumer of the possible assistance. Therefore a creditor provider may not commence legal proceedings to enforce the agreement before first providing the default notice to the consumer as contemplated in section 129 (l)(a). In this matter, the section 129 default notice was sent to the applicant by registered post on 13 February 2012. The respondent then proceeded to issue the summons against the applicant on 02 March 2012 and upon not being served with a Notice to Defend, the respondent proceeded to apply for a default judgment on 22 May 2012 which was granted on 31 May 2012. The default notice was subsequently returned to sender on 23 March 2012.

[5] A credit provider may not commence any legal proceedings to enforce an agreement before at least 10 business days have elapsed since the credit provider delivered a notice to the consumer as contemplated in section 129(l)(a) and the consumer has not responded to the notice or responded to the notice by rejecting the credit provider’s proposals. A credit provider is therefore required to establish to the satisfaction of the court that it has delivered a notice to the consumer as contemplated in section 129. In Sebola v Standard Bank 2012(5) SA 142 Cameron J at [87] E-F stated that “...The Statute, though giving no clear meaning to ‘deliver’, requires that the credit provider seeking to enforce a credit agreement aver and prove that the notice was delivered to the consumer. Where the credit provider posts the notice, proof of registered despatch to the address of the consumer, together with proof that the notice reached the appropriate post office for delivery to the consumer, will in the absence of contrary indication constitute sufficient proof of delivery. If, in contested proceedings the consumer avers that the notice did not reach him or her, the court must establish the truth of the claim.

[6] In this matter I am satisfied that the section 129 default notice never reached the applicant, and therefore there was no compliance with the procedure as set out in section 129.

[7] Counsel for the applicant invited me to consider the issue relating to reckless lending as another ground to sustain the application for rescission of judgment. The case advanced for the applicant, inter alia, is that no proper credit or risk assessment was undertaken by the respondent before credit was granted to the applicant and further that the signature appearing on the credit application forms is forged.

[8] Counsel for the applicant further stated that the motor-vehicle which forms the subject matter of the respondent’s claim was not in a proper working condition. As a result thereof, it was submitted the applicant did not enjoy the use of the motor-vehicle in terms of the agreement.

[9] In view of the attitude I take of this matter, it is not necessary for me to traverse or discuss the other issues raised by the applicant, that is reckless lending and the defective subject matter of the respondent’s claim. In my view the issue relating to the compliance or otherwise with the provisions of section 129 of the NCA is dispositive of the matter.

[10] I accept the applicant’s version that he did not receive the requisite letter. I therefore find that there was no proper compliance with the provision of
section 129(1) of the NCA. It then follows that, in terms of section 130(4)(b), the court must adjourn the proceedings and set out the steps that the respondent must take before the matter may be resumed. Given that the section 129 written notice, which was sent to the applicant by registered post, was returned back to the respondent, it would under the circumstances only be prudent that the respondent be ordered to serve the said notice on the applicant through his attorneys of record before the matter may be resumed.

[11] I, therefore, make the following order:
1. The application for rescission of judgment is granted with costs.
2. The warrant of execution issued herein is set aside.
3. The respondent is ordered to serve a written notice as contemplated in section 129(1) of the NCA on the attorneys of record for the applicant before the matter may be resumed.

MPHAHLELE AJ
Acting Judge of the South Gauteng
High Court, Johannesburg
instructed by : Larry Marks Attorneys
For the Respondent : Adv RS Stevenson
instructed by : ODBB Incorporated
Date of hearing : 22 November 2012
Date of Judgment : 01 February 2013