ABSA Bank Ltd v Brown and Another, ABSA Bank Ltd v Van Deventer and Another (2672/2011) [2012] ZAECPEHC 8 (7 February 2012)

ABSA Bank Ltd v Brown and Another, ABSA Bank Ltd v Van Deventer and Another (2672/2011) [2012] ZAECPEHC 8 (7 February 2012)

The court held that, in order to be satisfied as required by section 130(3)(a) of the National Credit Act, the summons must allege the manner of delivery chosen by the consumer from the options provided in section 65(2) and that the notice was delivered in that manner. The bond documents annexed to the particulars of claim only provide for domicilium at the bonded property and do not specify the manner of delivery. The summonses are silent on the manner of delivery chosen by the defendants, and the mortgage loan agreements are not annexed. As a result, the court cannot be satisfied that the requirements of section 129(1)(b)(i) have been met regarding proper delivery of the notices. The...

Citation
[2012] ZAECPEHC 8
Parties
Plaintiff: ABSA Bank Limited; Defendant: Kenneth Charles Brown; Defendant: Lilian Hester Brown; Defendant: Lucinda Van Deventer; Defendant: Ralph Human
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
7 February 2012
Case Number
2672/2011
Procedural Posture
Default Judgment Application / Application for Default Judgment
Outcome
Default judgment refused due to non-compliance with statutory delivery requirements under the National Credit Act.
Judges
Eksteen
Legal Topics
National Credit Act, Default Judgment, Mortgage Bond Enforcement, Delivery of Statutory Notices, Domicilium Citandi Et Executandi
Banking and Finance Civil Procedure National Credit Act Default Judgment Mortgage Bond Enforcement Delivery of Statutory Notices Domicilium Citandi Et Executandi

Case Brief

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Parties

ABSA Bank Limited

Plaintiff

Kenneth Charles Brown

Defendant

Lilian Hester Brown

Defendant

Lucinda Van Deventer

Defendant

Ralph Human

Defendant

Procedural Posture

Default Judgment Application / Application for Default Judgment

Legal Issues

  1. 1 Whether the plaintiff complied with the delivery requirements for statutory notices under the National Credit Act prior to seeking default judgment.
  2. 2 Whether the summons contains sufficient averments regarding the manner of delivery chosen by the defendants as required by section 65(2) of the NCA.
  3. 3 Whether the address used for delivery of notices satisfies section 96 of the NCA.

Ratio Decidendi

The court held that, in order to be satisfied as required by section 130(3)(a) of the National Credit Act, the summons must allege the manner of delivery chosen by the consumer from the options provided in section 65(2) and that the notice was delivered in that manner. The bond documents annexed to the particulars of claim only provide for domicilium at the bonded property and do not specify the manner of delivery. The summonses are silent on the manner of delivery chosen by the defendants, and the mortgage loan agreements are not annexed. As a result, the court cannot be satisfied that the requirements of section 129(1)(b)(i) have been met regarding proper delivery of the notices. The...

Court Disposition

Default judgment refused due to non-compliance with statutory delivery requirements under the National Credit Act.

Orders

  • The applications for default judgment are refused.
  • Plaintiff is granted leave to amend the summons to comply with the requirements of the National Credit Act.