IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matters between:

and
ININA WELTMAN-SHMARYAHU

a division of WESBANK
and
MRS ANINA WELTMAN-SHMARYAHU

and
MRS ANINA WELTMAN-SHMARYAHU

JUDGMENT HANDED DOWN ON MONDAY, 25 OCTOBER 2010

CLEAVER J
[1] These matters are yet further cases spawned by the National Credit Act No 34 of 2005 ("the NCA"). Although the issues in all three matters are identical, I will for the purposes of this judgment deal with the papers in case no 18229/2010. The parties agreed that a finding in this matter would result in similar findings in the other two matters.
[2] The plaintiff seeks by way of summary judgment an order for the return of a motor vehicle sold to the defendant in terms of an instalment sale agreement. The application is opposed in the main on grounds which may be termed 'technical'.

[3]     On 19 October 2007 the plaintiff and the defendant entered into what is termed a 'costs of credit sale agreement' in terms whereof the defendant purchased from the plaintiff a BMW 330I CI motor vehicle for a purchase consideration of R479 000 plus certain extra charges listed in the particulars of claim. The plaintiff avers that the defendant, to whom the vehicle was duly delivered,
".	has breached the terms of the Agreement in that the

[4]     Defendant's counsel submitted that the description of the rights accorded to the plaintiff in the agreement was not accurate and that the wording thereof was not to be found in the agreement. The averments made by the plaintiff in paragraph 6.5 of its particulars of claim are as follows:
"In the event of the Defendant breaching any terms of the agreement (all of which are agreed to be material) the Plaintiff shall be entitled to immediately cancel the Agreement, obtain possession of the vehicle and recover from the Defendant, as pre-estimated liquidation damages, the total amount payable, but not yet paid, less the value of the vehicle as at the date of delivery thereof to the Plaintiff;"
Defendant's counsel is correct in that the wording supplied by plaintiff does not
appear in the agreement, but in my view nothing turns on this.  The relevant
portion of the breach clause in the agreement reads as follows:

"11.   Breach
11.1. If you do not comply with any of the terms and conditions of this Agreement (all of which you agree are matehal), or you fail to pay any amounts due under this Agreement, or you have made misleading statements to us before signing this Agreement, or you allow any judgement that has been taken against you to remain unpaid for more that seven days, or are sequestrated or liquidated, or perform an act of insolvency in terms of the Insolvency Act no 24 of 1936 or enter into a compromise with any of your creditors, or being a natural person, die, or being a juristic person undergo a material restructure, then we may (without affecting any of our other rights), proceed with the enforcement or termination of the Agreement, as set out in Chapter 6 Part C of the Act.
11.2. Should we elect to enforce the Agreement, the procedure set out hereunder will be followed:

11.2.1. A letter will be despatched to you drawing your default under the Agreement to your attention;
11.2.2. A proposal will be made in that letter that you refer this Agreement to a debt counsellor, alternative dispute resolution agent, consumer court or Ombud with jurisdiction, with the intention that we resolve any disputes or develop and agree on a plan to bhng the payments under this Agreement up to date.
11.2.3.. If the Agreement is under review in terms of section 86 of the Act, and the review is not finalised within 60 business days after you applied for the debt review, we will send you a notice, terminating the debt review.
11.2.4. Legal proceedings will not be commenced against you unless:

(a) You have been in default for at least 20 business days;
(b) At least 10 business days have elapsed since the default letter or notice referred to above has been delivered (which 10 day period may run concurrently with the 20 day default period);
(c) You have failed to respond to the default letter or you have responded by rejecting our proposal;
(d) You have not surrendered the Goods to us in terms of section 127 of the Act.

11.4 At any time before cancellation of the Agreement you are entitled to reinstate the Agreement which is in default by paying all overdue amounts, as well as our permitted default charge and reasonable costs up to the time of reinstatement.

[5]     The applicability of the NCA is set out in the following manner in the particulars of claim:
"9.     The Plaintiff has complied with the provisions of the National Credit Act 34 of 2005 (the 'NCA'), more particularly:

9.3. The Defendant has not surrendered the vehicle to the Plaintiff as contemplated in Section 127 of the NCA;
9.4. There is no matter arising under the agreement and pending before the National Credit Tribunal that could result in an order affecting the issues to be determined by the Court;
9.5. The Plaintiff has not approached the Court during the time that the matter was before a Debt Counsellor, an Alternative Dispute Resolution Agent, Consumer Court or the Ombud with jurisdiction;
9.6. The Defendant has not:

9.6.1. agreed to a proposal made in terms of Section 129(1)(a) of the NCA or acted in good faith in fulfilment of such agreement as no such agreement has been reached;
9.6.2. complied with an agreed plan as contemplated in Section 129(1) (a) of the NCA as no such plan has been agreed; or
9.6.3. brought the payments under the credit agreement up to date, as contemplated in Section 129(1)(a) of the NCA.

9.7. More than 10 business days has passed since the delivery of the above notice;
9.8. The Defendant has been default under the agreement for more than 20 business days;
9.9. The agreement is not subject to pending debt review as contemplated in Section 86 of the NCA."

[6]     Annexure E, being the notice in terms of section 129(1) of the act, is dated 22 July and is addressed to the defendant at 7 Avenue Francaise, Fresnaye, Cape Town, her place of residence. The letter reads:
"RE:   NOTICE IN TERMS OF SECTION 129(1) OF THE NATIONAL CREDIT ACT NO 34 OF 2005
WESBANK a division of FIRSTRAND BANK LIMITED / YOURSELF
ACCOUNT NR: LWC17998E

AGREEMENT CREDIT REGISTRATION NUMBER WESBANK-NCRCP20
1. We act on behalf of Wesbank a division of Firstrand Bank Limited, at whose behest we have been instructed to proceed against you.
2. The abovementioned Agreement is in arrears in the sum of R63 915.37. The total balance outstanding under the agreement including arrears amounts to the sum of R452 211.79.
3. We must request that you effect payment of the aforementioned amount plus interest at the rate set out in your agreement within TEN (10) business days of this letter, alternatively to contact the writer's office to make an arrangement which is both suitable to our client and yourself in respect of the outstanding balance.
4. Kindly note that you may seek assistance from a Debt Counsellor, Alternative Dispute Resolution Agent, Consumer Court or Ombud with jurisdiction with the intent to resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date.
5. In the event that you refer the matter to a Debt Counsellor, you shall be liable to pay an Application fee to the Debt Counsellor, as prescribed by Schedule 2 of the Regulations to the National Credit Act No. 34 of 2005, and not be able to incur any further debt until your debt review has been finalised.
6. Accordingly, we await to hear from you within TEN (10) business days to pay your arrears or to take action in terms of clause 4 above. Should you fail to take either action as set out above, we will have no option but to institute the necessary legal action for the return of the goods."

Annexure F, being the return of the deputy sheriff relating to service of the letter of demand reads:
"On this 27th day of July 2010 at 12:51 I served a copy of the LETTER OF DEMAND in this matter upon ININA WELTMAN SHMARYAHU by affixing a copy thereof to the outer or principal door of the place of RESIDENCE of the DEFENDANT at 7 AVENUE FRANCAISE, FRESNAYE CAPE TOWN. No other service possible after a diligent search. (Rule 9(6))"

	20.   Addresses
20.1. You agree that the postal address / e-mail address that you have provided on the Quotation is the address where we must send all post and other communication to you and that such communication shall be binding on you.
20.3. You agree that the physical address that you have provided on the Quotation is the address that you have selected as the address that we must send all legal notices to you.
20.4. You must let us know in writing of any change to either of your addresses as well as your e-mail address and telephone number. If you fail to give notice of a change of address, we may use the last address we have for you, even if you are no longer there.
20.5. You accept that you will be deemed to have received a notice or letter 5 days after we have posted it to either of the addresses you have given."

On the front page of the agreement the following appears:

ADDRESS:"

"It appears to me that the legislature's grant to the consumer of a right to choose the manner of delivery inexorably points to an intention to place the risk of non-receipt on the consumer's shoulders. With every choice lies a responsibility and it is after all within a consumer's sole knowledge which means of communication will reasonably ensure delivery to him. It is entirely fair in the circumstances to conclude from the legislature's express language in s 65(2) that is considered despatch of a notice in this manner chosen by the appellants in this matter sufficient for purposes of a s 129(1)(a) and that actual receipt is the consumer's responsibility." 

[10]   The defendant denies receipt of the notice and says the following in her opposing affidavit:

I am advised that in the light of the fact that the notice did not come to my attention, I was not able to exercise my rights as provided for in the NCA in particular sections 127, 129 and 130 thereof."
Although the defendant denies receipt of the notice, she fails to answer the averment in the particulars of claim which clearly suggests that she did receive the notice. As indicated in paragraph [5] the averment is:-

Not only does the defendant not deny this averment, she also fails to deal with it in any way.    Interestingly, her denial of receipt of the notice in case no 18243/2010 is in exactly the same terms as is set out in the beginning of this paragraph.  That response is difficult to reconcile with the return of the sheriff which reads
"On this 23rd day of July 2010 at 10:32 I served the LETTER in this matter upon MR BRITE * EMPLOYEE apparently a responsible person and apparently not less than 16 years of age, of and in control of and at the place of residence of I NINA WELTMAN SHMAYAHU at 7 AVENUE FRANCAISE, FRESNAYE, CAPE TOWN, the DEFENDANT being temporarily absent, and by handing to the PARTY SERVED a copy thereof after explaining the nature and exigency of the said process. RULE 4(1)(a)(ii)."

The sheriff's return is not dealt with in any way.
It is perhaps necessary to add that although appearance to defend the action on behalf of the defendant was filed by the firm of attorneys referred to in the particulars of claim and indeed signed by the attorney referred to, that firm subsequently withdrew and the defendant is now represented by a different firm of attorneys.

"As a result of the defendant's breach, the Plaintiff elected to cancel the agreement, alternatively, Plaintiff's election to cancel the agreement is herewith conveyed to the Defendant."
There is no difference in law as to whether the cancellation of an agreement is conveyed to the defendant prior to the service of summons or by the service of summons. In the circumstances I am satisfied that the necessary averments in respect of cancellation are present and that the cancellation of the agreement was conveyed to the defendant, at least when the summons was served on her.

No attempt is made by the defendant to invoke the provisions of the NCA in order to provide debt relief for herself. All that she does is to deny that the relevant provisions of the act have been complied with.

[16]   The following orders are made:

1.1. The return of the BMW 330I CI convert A/T (E46) F/L, engine no 74374102 to the plaintiff forthwith;
1.2. Costs of suit.

2.1. The return of the Land Rover Range Rover Sport 4.21 V8 SC, engine no 260608B23273428PS to the plaintiff forthwith;
2.2. Costs of suit.
3. In case no 18243/2010 summary judgment is granted in favour of the plaintiff for:
3.1. The return of the BMW X5 4.8 A/T (E70), engine no 53134012 to the plaintiff forthwith;
3.2. Costs of suit.
RB CLEAVER