FirstRand Bank Ltd t/a Wesbank v Weltman -Shmaryanhu, FirstRand Bank Ltd t/a McCarthy Finance a division of Wesbank v Weltman -Shmaryanhu (18229/2010, 18230/2010, 18243/2010) [2010] ZAWCHC 621 (10 December 2010)

FirstRand Bank Ltd t/a Wesbank v Weltman -Shmaryanhu, FirstRand Bank Ltd t/a McCarthy Finance a division of Wesbank v Weltman -Shmaryanhu (18229/2010, 18230/2010, 18243/2010) [2010] ZAWCHC 621 (10 December 2010)

The court found that service of the section 129 notice by the deputy sheriff did not invalidate compliance with statutory requirements, as the risk of non-receipt lies with the consumer if the notice is received. Cancellation of the agreement was adequately conveyed to the defendant, at least upon service of summons, and no further notice was required. The citation of the plaintiff did not render the agreement unlawful, as the documentation clarified the relationship between Wesbank and FirstRand Bank Limited. The defendant's affidavit did not disclose a bona fide defence beyond bald denials and reference to interest rate changes, which were insufficient to resist summary judgment....

Citation
[2010] ZAWCHC 621
Parties
Plaintiff: FirstRand Bank Ltd t/a Wesbank; Plaintiff: FirstRand Bank Ltd t/a McCarthy Finance a division of Wesbank; Defendant: Mrs Anina Weltman-Shmaryanhu
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 December 2010
Case Number
18229/2010, 18230/2010, 18243/2010
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Summary Judgment
Outcome
Application for leave to appeal refused with costs.
Judges
R B Cleaver
Legal Topics
Summary Judgment, Section 129 Notice, Agreement Cancellation, Consumer Credit, Citation of Parties
Civil Procedure Banking and Finance Summary Judgment Section 129 Notice Agreement Cancellation Consumer Credit Citation of Parties

Case Brief

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Parties

FirstRand Bank Ltd t/a Wesbank

Plaintiff

FirstRand Bank Ltd t/a McCarthy Finance a division of Wesbank

Plaintiff

Mrs Anina Weltman-Shmaryanhu

Defendant

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Summary Judgment

Legal Issues

  1. 1 Whether service of the section 129 notice by the deputy sheriff constituted compliance when another method of delivery was chosen in the contract.
  2. 2 Whether a further notice of cancellation was required before issuing summons for return of the vehicle.
  3. 3 Whether the citation of the plaintiff rendered the agreement unlawful under section 90(2)(a)(ii).

Ratio Decidendi

The court found that service of the section 129 notice by the deputy sheriff did not invalidate compliance with statutory requirements, as the risk of non-receipt lies with the consumer if the notice is received. Cancellation of the agreement was adequately conveyed to the defendant, at least upon service of summons, and no further notice was required. The citation of the plaintiff did not render the agreement unlawful, as the documentation clarified the relationship between Wesbank and FirstRand Bank Limited. The defendant's affidavit did not disclose a bona fide defence beyond bald denials and reference to interest rate changes, which were insufficient to resist summary judgment....

Court Disposition

Application for leave to appeal refused with costs.

Orders

  • The application for leave to appeal is refused.
  • The defendant is ordered to pay the costs of the application.