Malinga v Absa Bank Limited (55937/2016) [2018] ZAGPPHC 315 (23 April 2018)

Malinga v Absa Bank Limited (55937/2016) [2018] ZAGPPHC 315 (23 April 2018)

The court held that the default judgment was erroneously granted because the summons was issued before the ten-day period required by section 130(1)(a) of the National Credit Act had lapsed. The ten-day period must be calculated from the date the applicant actually received and became aware of the section 129 notice, not the presumed date of delivery. The court found that 'commence' in section 129(1)(b) refers to the issue of summons, and the statutory purpose is to afford the consumer a genuine opportunity to regularise payments before litigation. The respondent's reliance on the contractual presumption of delivery was rebutted by the actual facts of delivery. Accordingly, the judgment...

Citation
[2018] ZAGPPHC 315
Parties
Applicant: Ndoda David Malinga; Respondent: Absa Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 April 2018
Case Number
55937/2016
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment Under Rule 42(1)(a)
Outcome
Application for rescission granted; default judgment rescinded.
Judges
A A Crutchfield
Legal Topics
Default Judgment Rescission, National Credit Act, Section 129 Notice, Section 130 Procedure, Proof of Delivery, Consumer Protection
Civil Procedure Banking and Finance Default Judgment Rescission National Credit Act Section 129 Notice Section 130 Procedure Proof of Delivery Consumer Protection

Case Brief

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Parties

Ndoda David Malinga

Applicant

Absa Bank Limited

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment Under Rule 42(1)(a)

Legal Issues

  1. 1 Whether the default judgment was erroneously granted due to non-compliance with section 130(1)(a) of the National Credit Act.
  2. 2 Whether 'commence' in section 129(1)(b) refers to the issue or service of summons.
  3. 3 Whether the ten-day period for enforcement proceedings runs from actual delivery or presumed delivery of the section 129 notice.

Ratio Decidendi

The court held that the default judgment was erroneously granted because the summons was issued before the ten-day period required by section 130(1)(a) of the National Credit Act had lapsed. The ten-day period must be calculated from the date the applicant actually received and became aware of the section 129 notice, not the presumed date of delivery. The court found that 'commence' in section 129(1)(b) refers to the issue of summons, and the statutory purpose is to afford the consumer a genuine opportunity to regularise payments before litigation. The respondent's reliance on the contractual presumption of delivery was rebutted by the actual facts of delivery. Accordingly, the judgment...

Court Disposition

Application for rescission granted; default judgment rescinded.

Orders

  • The default judgment granted on 30 August 2016 is rescinded.
  • The applicant is ordered to deliver his plea within twenty (20) court days of this order.