Sebola and Another v Standard Bank of South Africa (A5041/2010) [2011] ZAGPJHC 229 (15 August 2011)

Sebola and Another v Standard Bank of South Africa (A5041/2010) [2011] ZAGPJHC 229 (15 August 2011)

The court held that the sending of the section 129 notice by registered post to the address chosen by the appellants in the mortgage bond constitutes compliance with the National Credit Act. The court is bound by the Supreme Court of Appeal's decision in Rossouw v First Rand Bank Limited, which authoritatively settled that actual receipt of the notice is not required; the risk of non-receipt lies with the consumer who selects the address for service. The appellants' arguments challenging Rossouw were rejected, as this court cannot depart from the binding precedent. Accordingly, the appeal against the dismissal of the rescission application was dismissed.

Citation
[2011] ZAGPJHC 229
Parties
Appellant: Mashilo Shadrack Sebola; Appellant: Nombeko Daphne Sebola; Respondent: The Standard Bank of South Africa; Respondent: The Deputy Sheriff of the High Court, Roodepoort - FWJ Cortzee
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 August 2011
Case Number
A5041/2010
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Rescission Application
Outcome
Appeal dismissed with costs.
Judges
P Boruchowitz, R Mokgoatlhe, P Coppin
Legal Topics
National Credit Act, Debt Enforcement Procedure, Mortgage Bond, Default Judgment, Service of Process
Civil Procedure Banking and Finance National Credit Act Debt Enforcement Procedure Mortgage Bond Default Judgment Service of Process

Case Brief

Summary, issues, holding and outcome

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Parties

Mashilo Shadrack Sebola

Appellant

Nombeko Daphne Sebola

Appellant

The Standard Bank of South Africa

Respondent

The Deputy Sheriff of the High Court, Roodepoort - FWJ Cortzee

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Rescission Application

Legal Issues

  1. 1 Whether sending a section 129 notice by registered post to the chosen address constitutes compliance with the National Credit Act.
  2. 2 Whether actual receipt of the section 129 notice by the consumer is required for compliance.
  3. 3 Whether the court is bound by the Supreme Court of Appeal's decision in Rossouw v First Rand Bank Limited.

Ratio Decidendi

The court held that the sending of the section 129 notice by registered post to the address chosen by the appellants in the mortgage bond constitutes compliance with the National Credit Act. The court is bound by the Supreme Court of Appeal's decision in Rossouw v First Rand Bank Limited, which authoritatively settled that actual receipt of the notice is not required; the risk of non-receipt lies with the consumer who selects the address for service. The appellants' arguments challenging Rossouw were rejected, as this court cannot depart from the binding precedent. Accordingly, the appeal against the dismissal of the rescission application was dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.