Nedbank Limited v Nontyana (174/2017, 184/2017) [2017] ZAECGHC 90 (15 August 2017)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO. 174/2017 and 184/2017

In the matter between:

NEDBANK LIMITED

Plaintiff

and

MZWANDILE TONNY CEDRIC BOBTYANA

Defendant

JUDGMENT

Bloem J.

[1] The plaintiff caused two separate summonses to be issued against the defendant for the cancellation of instalment sale agreements,

delivery of two vehicles and costs. After delivery of the defendant’s notice of intention to defend, the plaintiff

delivered notice of application for summary judgment. I am called upon to decide whether or not to grant summary judgment in favour of the plaintiff against the defendant.

[2] According to the particulars of claim the parties entered into written instalment sale agreements in terms whereof the plaintiff

sold the vehicle to the defendant. In terms of both agreements the defendant was required to make monthly instalments. The parties agreed that, until the defendant had fulfilled all his obligations under the agreements, the plaintiff remained the owner of the vehicles. In both cases the defendant made the initial payment and some instalments thereafter. However, he fell into arrears which caused the plaintiff to issue the summonses against him claiming the above relief. In case number 174/2017 the defendant was in arrears by R26 667.67 as at 17 January 2017 and, as a result of the acceleration clause in the agreement, the full outstanding balance was R173 210.67 as at 25 November 2016. In case number 184/2017 the defendant was in arrears by R32 861.82 as at 17 January 2017 and, as a result of the acceleration clause, the full outstanding balance was R294 870.06 as at 25 November 2016.

[3] The defendant initially raised the non-joinder of a curator bonis as a point in limine in opposition to the application for summary judgment. On 25 October 2016 and at the instance of the National Director of Public Prosecutions this court issued a restraint order in terms of section 26 of the Prevention of Organised Crime Act[1] against the defendant in respect of amongst others the vehicles. At the time when the restraint order was issued this court appointed Michael Timkoe as curator bonis in terms of section 28 (1) of the Prevention of Organised Crime Act over the realisable property in the defendant’s possession. Mr Timkoe, acting within the powers vested in him in terms of the Prevention of Organised Crime Act, attached the vehicles. The defendant’s point in limine was that Mr Timkoe should have been joined in these proceedings. That point was disposed of when Mr Timkoe filed an affidavit, by agreement, wherein he stated that he had no objection to the vehicles being released from attachment if judgment is granted in the plaintiff’s favour in these proceedings. The reason therefor, explained Mr Timkoe, is because the plaintiff is still the owner of the vehicles.

[4] The defendant then delivered a supplementary opposing affidavit, by agreement. His defence is stated therein as follows:

“4. I have already filed an affidavit in this matter but did not deal with my defence as I merely raised an exception (sic) to the summons as a point in limine in that affidavit and stated I do so before I respond to the affidavit of the applicant.

5. My defence in this matter is that I have never received a notice in terms of Section 129 of the National Credit Act 34 of 2005. The applicant alleges in their (sic) summons that they send the notice to my address and the post office. They allege further it was delivered to the correct post office, but they do not allege that I in fact received it.

6. I have never received the registered mail notification from the post office. According to the tracking report, annexed to the summons, it is clear that I in fact did not retrieve the notice from the post office and that is why the plaintiff does not allege that I in fact received the notice. The post office has, according to the tracking report, seemingly only sent one notice to my address and there is no indication in the tracking report that I received that notice.”

[5] The defendant seems to contend that there is a duty on the plaintiff to prove that the defendant “in fact received” the notice and that there is a duty on the post office to send more than one notification slip to a consumer to inform the consumer that an item was available for collection at the post office. During his address Mr Botha, counsel for the defendant, accepted that there was no obligation on the post office to send more than one notification slip to a consumer to whom a registered item had been addressed. I will accordingly deal with the defendant’s first contention only. The Constitutional Court has decided that a credit provider is not required by the National Credit Act[2] to prove that a consumer in fact received a notice in terms of section 129. He is required to make averments that will satisfy the Court that the notice, on balance of probabilities, reached the consumer.[3] In Kubyana v Standard Bank of South Africa[4] Mhlantla AJ (as she then was) emphasised that “there is no general requirement that the notice be brought to the consumer's subjective attention by the credit provider, or that

personal service on the consumer is necessary for valid delivery under the Act.”

[6] In each of these cases the plaintiff alleged in its particulars of claim that it complied with the provisions of sections 129 and 130 of the National Credit Act in that the notice in terms of section 129 (1) was sent to the defendant by email on 1 December 2016 and by registered mail on 8 December 2016 to his domicilium citandi et executandi. Regarding delivery by registered mail, the plaintiff alleged that the notice was delivered to the relevant post office which would, in the normal course have secured delivery of the registered item notification slip, informing the defendant that a registered item was available for collection. As proof of these allegations the plaintiff attached to its particulars of claim a track and trace print-out from the website of the South African Post Office and a copy of the registered slip bearing the physical address which the defendant chose to which notices must be sent to him. The printout shows that the notice, written by the plaintiff’s attorneys, was sent from the Greenacres Post Office in Port Elizabeth on 5 December 2016, arrived in East London on 7 December 2016 and on 8 December 2016 a first notification was sent from the Greenfields Post Office in East London to the defendant’s domicilium citandi et executandi.

[7] Mr Botha conceded that, on the basis of the pleadings, the track and trace print-out and the registered slip, the plaintiff established that it had done what was required to ensure that the notice reached the defendant. He submitted that the above concession did not mean that the plaintiff discharged its obligations in terms of section 130 of the National Credit Act insofar as it relates to the delivery of the notice in terms of section 129 (1) of that Act. In Kubyana[5] the court set out as follows the legal position of a consumer once a credit provider has shown that the relevant post office has sent a notification slip to a consumer:

“Once a credit provider has produced the track and trace report indicating that the s 129 notice was sent to the correct branch of the Post Office and has shown that a notification was sent to the consumer by the Post Office, that credit provider will generally have shown that it has discharged its obligations under the Act to effect delivery. The credit provider is at that stage entitled to aver that it has done what is necessary to ensure that the notice reached the consumer. It then falls to the consumer to explain why it is not reasonable to expect the notice to have reached her attention if she wishes to escape the consequences of that notice. And it makes sense for the consumer to bear this burden of rebutting the inference of delivery, for the information regarding the reasonableness of her conduct generally lies solely within her knowledge. In the absence of such an explanation the credit provider's averment will stand. Put differently, even if there is evidence indicating that the s 129 notice did not reach the consumer's attention, that will not amount to an indication disproving delivery if the reason for non-receipt is the consumer's unreasonable behaviour.”

[8] Mr Botha submitted that, for purpose of defeating summary judgment, it was sufficient for the defendant to allege that he did not receive the notification slip from the post office informing him that a registered item was available for collection. He submitted that it is only at the trial that the defendant would be required to place facts before the court to prove that his defence, that he did not receive the notification slip and accordingly the notice in terms of section 129 (1), was bona fide. He submitted that, for now, the allegation that he did not receive the notification slip was sufficient to rebut the inference of delivery. I do not agree.

[9] In the light of Mr Botha’s concession that the plaintiff took reasonable steps to bring the notice to the defendant’s attention, it was for the defendant “to show that the notice did not come to [his] attention and the reasons why it did not”.[6] The defendant failed to give reasons why the notice did not come to his attention. Had he done so he would have complied with rule 32 (3) (b) which requires a defendant who opposes an application for summary judgment to “disclose fully the nature and grounds of the defence and the material facts relied upon therefor”. What the defendant has done, by stating that he did not receive the notification slip, was to disclose the nature of his defence, albeit not fully. He failed to disclose the material facts relied upon for his defence. One would have expected the defendant to have placed evidence before the court, for example, evidence obtained by him from the post office, that the notification was indeed not delivered by the postman concerned. From the time that the application for summary judgment was served on him until he delivered his second opposing affidavit, the defendant had more than 16 weeks within which to establish the reason why the notice did not come to his attention. He could also have indicated his whereabouts during the time when the post office sent the notification to him. He might have been out of town, province or the country and unaware of the notification slip. His failure to show the reason why he did not receive the notice means that he did not disclose the material facts relied upon for his defence. After all, because the plaintiff showed that the relevant post office sent the notification slip to the defendant at his domicilium citandi et executandi, he bore the onus to show “the reason why” the notice did not come to his attention. He failed to discharge that onus. That being the case, the defendant’s opposition to the application for summary judgment has no merit. The plaintiff is accordingly entitled to summary judgment and costs. Regard being had to the amounts outstanding and because the plaintiff could have obtained the same relief in the magistrate’s court,[7] such costs should be on the relevant magistrate’s court scale.

[10] Ms Watt, counsel for the plaintiff, drew attention to the fact that in case number 174/2017 the defendant informed the plaintiff in writing at the conclusion of the instalment sale agreement that his preferred method of communication was by email, the defendant having given his email address to the plaintiff. The plaintiff also sent the notice in terms of section 129 (1), which was sent to the defendant by registered mail, to the defendant by email to the address given to the plaintiff. The submission was that the section 129 (1) notice was also served on the defendant by email, as preferred by him. The defendant denied receipt of that email.

[11] I do not agree that there was proper service of the notice on the defendant by email. The defendant agreed that he preferred to be informed by email by the plaintiff only of its new products and special offers and exclusive offers from other organisations.

He also agreed that the plaintiff may request reputable research organisations to contact him by email. He did not agree that a notice, as contemplated in section 129 (1), could be sent to him by email. As pointed out above, he chose a physical address, to which the notice was sent by registered mail, as his domicilium citandi et executandi. Service of the notice by email was accordingly not agreed upon by the parties. However, in the light of my earlier finding regarding delivery by registered mail, the service by email is immaterial.

[12] In the result, summary judgment is granted in favour of the plaintiff against the defendant in the following terms:

In case number 174/2017:

12.1. the instalment sale agreement concluded between the parties on 20 October 2011 is hereby terminated;

12.2. the defendant deliver to the plaintiff a 2011 Hyundai Sonata 2.4 GLS A/T motor vehicle with engine number G4KEBA832686 and chassis number KMHEC41CMCA336899;

12.3. the defendant pay the plaintiff’s costs of suit on the magistrate’s court scale, such costs to include the costs reserved on 25 April, 9 May and 29 June 2017.

In case number 184/2017:

12.4. the instalment sale agreement concluded between the parties on 25 June 2014 is hereby terminated;

12.5. the defendant deliver to the plaintiff a 2011 Mercedes Benz Viano 3.0 CDI TREND A/T motor vehicle with engine number 64289041073305 and chassis number WDF63981323625656;

12.6. the defendant pay the plaintiff’s costs of suit on the relevant regional court scale, such costs to include the costs reserved on 25 April, 9 May and 29 June 2017.

_________________________

G H BLOEM

Judge of the High Court

For the plaintiff:

Adv K Watt, instructed by Dold and Stone Inc, Grahamstown

For the defendant:

Adv M F T Botha, instructed by Mqeke Attorneys, Grahamstown

Date of hearing:

10 August 2017

Date of delivery of the judgment: 15 August 2017

[1] Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998).

[2] National Credit Act, 2005 (Act No. 34 of 2005).

[3] Sebola and another v Standard Bank of South Africa Ltd and another 2012 (5) SA 142 (CC) at 166A-C.

[4] Kubyana v Standard Bank of South Africa 2014 (3) SA 56 (CC) at 69A-B and 71G-H.

[5] Kubyana at 75I-76C.

[6] Kubyana at 71A.

[7] In terms of rule 14 (1)(c) of the Magistrates’ Court Rules of Court a plaintiff may be granted summary judgment for the delivery of specified movable property.