Mulaisi and Another v Changing Tides 17 (Pty) Ltd (17859/2013) [2018] ZAGPPHC 901 (19 September 2018)

Mulaisi and Another v Changing Tides 17 (Pty) Ltd (17859/2013) [2018] ZAGPPHC 901 (19 September 2018)

The court found that the section 129 notice, although sent to the correct Post Office, was returned to sender on the same day and no notification was sent to the applicants. The track and trace report did not indicate that a notification was issued, and the respondent did not dispute this fact. The supplementary evidence provided by the respondent was not before the Judge who granted summary judgment. Therefore, the applicants successfully demonstrated that the notice did not reach their attention, and the requirements of the National Credit Act were not met. The summary judgment was granted erroneously and must be rescinded. The matter is adjourned for proper service of the section 129...

Citation
[2018] ZAGPPHC 901
Parties
Applicant: Favourite Mulaisi; Applicant: Joseph Patrick Tshauke; Respondent: Changing Tides 17 (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 September 2018
Case Number
17859/2013
Procedural Posture
Rescission Application / Application for Rescission of Summary Judgment
Outcome
Application for rescission granted; summary judgment set aside; matter adjourned for proper service of section 129 notice.
Judges
E.M. Kubushi
Legal Topics
National Credit Act, Section 129 Notice, Summary Judgment, Rescission of Judgment
Civil Procedure Banking and Finance National Credit Act Section 129 Notice Summary Judgment Rescission of Judgment

Case Brief

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Parties

Favourite Mulaisi

Applicant

Joseph Patrick Tshauke

Applicant

Changing Tides 17 (Pty) Ltd

Respondent

Procedural Posture

Rescission Application / Application for Rescission of Summary Judgment

Legal Issues

  1. 1 Whether a section 129 notice dispatched to the correct Post Office but returned to sender on the same day can be deemed to have come to the attention of the applicants.
  2. 2 Whether the summary judgment was erroneously granted in the absence of proper notification to the applicants.
  3. 3 Whether the requirements of section 129 and section 130(4) of the National Credit Act were complied with.

Ratio Decidendi

The court found that the section 129 notice, although sent to the correct Post Office, was returned to sender on the same day and no notification was sent to the applicants. The track and trace report did not indicate that a notification was issued, and the respondent did not dispute this fact. The supplementary evidence provided by the respondent was not before the Judge who granted summary judgment. Therefore, the applicants successfully demonstrated that the notice did not reach their attention, and the requirements of the National Credit Act were not met. The summary judgment was granted erroneously and must be rescinded. The matter is adjourned for proper service of the section 129...

Court Disposition

Application for rescission granted; summary judgment set aside; matter adjourned for proper service of section 129 notice.

Orders

  • The application for rescission is granted.
  • The summary judgment is set aside, including the order for payment of R1,295,640.33 with interest and costs, and the order declaring Erf 136 Suideroodt Township specially executable.