Mashele v BMW Financial Services (Pty) Ltd and Another (29899/2018) [2020] ZAGPPHC 665; 2021 (2) SA 519 (GP) (18 November 2020)

Mashele v BMW Financial Services (Pty) Ltd and Another (29899/2018) [2020] ZAGPPHC 665; 2021 (2) SA 519 (GP) (18 November 2020)

The court held that payment of the amount specified in a section 129 notice does not, by itself, prevent enforcement of a credit agreement if further arrears have accrued by the time of payment. The National Credit Act requires the consumer to bring all payments under the agreement up to date, not merely pay the amount demanded in the notice. Ms. Mashele did not bring her payments up to date nor engage with the section 129 notice. There was no statutory bar to BMW approaching the court or to the granting of the default judgment. The rescission application failed because there was no legal or factual impediment to the order being sought or granted.

Citation
[2020] ZAGPPHC 665
Parties
Applicant: Sonto Elizabeth Mashele; Respondent: BMW Financial Services (Pty) Ltd; Respondent: The Sheriff of the High Court, Johannesburg East
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 November 2020
Case Number
29899/2018
Procedural Posture
Rescission Application / Application for Rescission of Default Judgment
Outcome
Application for rescission of judgment dismissed.
Judges
S D J Wilson
Legal Topics
National Credit Act, Section 129 Notice, Section 130 Compliance, Rescission of Judgment, Default Judgment, Consumer Protection
Civil Procedure Banking and Finance National Credit Act Section 129 Notice Section 130 Compliance Rescission of Judgment Default Judgment Consumer Protection

Case Brief

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Parties

Sonto Elizabeth Mashele

Applicant

BMW Financial Services (Pty) Ltd

Respondent

The Sheriff of the High Court, Johannesburg East

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Default Judgment

Legal Issues

  1. 1 Does payment of the arrear amount specified in a section 129 notice under the National Credit Act prevent enforcement of a credit agreement if further arrears have accrued by the time of payment?
  2. 2 Was the default judgment granted against Ms. Mashele erroneous within the meaning of Rule 42(1)(a) due to alleged non-compliance with sections 129 and 130 of the NCA?
  3. 3 Was BMW required to issue a fresh section 129 notice after payment of the amount specified in the original notice but before enforcement proceedings?

Ratio Decidendi

The court held that payment of the amount specified in a section 129 notice does not, by itself, prevent enforcement of a credit agreement if further arrears have accrued by the time of payment. The National Credit Act requires the consumer to bring all payments under the agreement up to date, not merely pay the amount demanded in the notice. Ms. Mashele did not bring her payments up to date nor engage with the section 129 notice. There was no statutory bar to BMW approaching the court or to the granting of the default judgment. The rescission application failed because there was no legal or factual impediment to the order being sought or granted.

Court Disposition

Application for rescission of judgment dismissed.

Orders

  • The rescission application is dismissed.
  • No order as to costs.