Wesbank(a division of Firstrand Bank Ltd) v Ralushe (1149/2018) [2021] ZAECGHC 78; 2022 (2) SA 626 (ECG) (31 August 2021)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Date heard: 30 July 2021

Date delivered: 31 August 2021

CASE NO: 1149/2018

In the matter between:

WESBANK

a division of FIRSTRAND BANK LTD Plaintiff

and

SPONONO LEONARD RALUSHE Defendant

JUDGMENT

LOWE, J

INTRODUCTION

[1] Plaintiff instituted action against Defendant on 18 April 2018 seeking relief arising from an instalment sale agreement in terms of which Plaintiff sold to Defendant a 2011 Hyundai motor vehicle, the agreement dated 22 June 2011.

[2] Plaintiff sought relief claiming return of the vehicle based on Defendant’s alleged failure to make the final balloon payment instalment of R89,970.00 on 30 June 2017.

[3] Plaintiff alleged compliance with Section 129 of the National Credit Act 34 of 2005 (NCA).

[4] The matter was defended on various grounds, but on the day of the trial the defences fell away save for reliance on the alleged failure to comply with Section 129 of the NCA.

[5] This was recorded in a Rule 37 Minute as follows:

“The Defendant makes the following admissions:

1. The defendant signed the agreement dated 22 June 2011, attached to the particulars of claim “B1-B21;

2. The defendant is indebted to the plaintiff in respect of the “balloon instalment” as set out in paragraph 3.8 of the particulars of claim;

3. The defendant has not paid this amount to date;

4. The defendant persists in his plea that prior to these proceedings being instituted, the plaintiff did not give the defendant notice in terms of section 129(1)(a).”

[6] The evidence and the parties’ argument was then by agreement restricted to the Section 129 NCA issue.

THE RELEVANT AGREED FACTS

[7] It is common cause that:

[7.1] On 8 February 2018 a Section 129 NCA letter was prepared, relevant to Defendant’s default, by Attorneys Joubert Galpin & Searle, which complied satisfactorily with Section 129.

[7.2] The said letter was dispatched to Defendant’s home address, 45 Kei Crescent, Queenstown 5319, by registered mail on 12 February 2018.

[7.3] The instalment sale agreement reflects the said address as both Defendant’s physical and postal address[1].

[7.4] The said notification was received at the Port Elizabeth post office on 13 February 2018, and went to Queenstown (the correct post office) via East London, the “first notification to recipient” sent to the said physical address on 15 February 2018.

[7.5] Being uncollected and on 15 March 2018 the said Section 129 letter was returned to Joubert Galpin & Searle.

[7.6] Defendant did not receive (or collect) the said letter accordingly.

[7.7] The same Section 129 letter with proof of posting and the track and trace report was attached to the Summons served on and received by Defendant some months later in April 2018.

[7.8] Defendant has to date failed to make payment of the outstanding balloon sum aforesaid.

THE DISPUTED FACTS

[8] Defendant whilst acknowledging the track and trace post office reports showing the first dispatched to recipient, at his physical address, he does not accept that this notice in terms of Section 129 is sufficiently proved and denies receipt of the postal slip relevant, despite regularly checking his home post box[2].

[9] In this regard Plaintiff relies on the track and trace reports and the subsequent service of the Section 129 letter with the summons.

THE ESSENTIAL ISSUES

[10] From the above the issues to be decided in this matter are:

[10.1] Generally whether Plaintiff has complied sufficiently with Section 129;

[10.2] Specifically the issue of proof of the delivery of the notification dispute as to the Section 129 notice and “First Notice to Recipient”, referred to in paragraphs 8 and 9 above;

[10.3] The consequence, if any, of Defendant’s evidence of non-receipt of the registered slip at his home address;

[10.4] The efficacy of the use of Defendant’s physical domicilium address, as per the instalment sale agreement, being 45 Kei Crescent, Queenstown;

[10.5] The issue of the attachment of the Section 129 Notice to the summons as being Section 129 compliance (as envisaged by Applicant), in the event of there being otherwise non-compliance with Section 129 in the respects referred to above.

THE AGREEMENT AS RELEVANT TO THE ISSUES

[11] The instalment sale agreement and all supporting documents reflect Defendant’s physical address as the appropriate address as to physical, postal and domicilium.

[12] The agreement provides inter alia as follows:

“17. Addresses

17.1 You agree that the postal/email address that you have provided on the Quotation/Cost of Credit is the address where we must send all post and other communication to you and that such communications will be binding on you.

17.2 You agree that the physical address that you have provided on Quotation/Cost of Credit is the address that you have selected as the address where we must send all legal notices to you.

17.3 You must let us know, in writing, by hand or registered mail, of any change to either of your addresses or your email address, telephone or cellular phone numbers. If you fail to give notice of a change of address, we may use the last address we have for you.

17.4 You accept that you will be deemed to have received a notice or letter within five (5) business days after we have posted it to either of the addresses you have given to us.”

[13] This clause makes it clear that it is the physical address elected which is selected as the appropriate address for delivery of legal notices, and the contrary was not contended.

[14] It was common cause that Defendant at no time gave notice of any sort as to a change of address.

THE PROVISION OF SECTION 129 OF THE NCA (AS AMENDED)

[15] Section 129 of the NCA:

“129 Required procedures before debt enforcement

(1) If the consumer is in default under a credit agreement, the credit provider-

(a) may draw the default to the notice of the consumer in writing and propose that the consumer refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date; and

(b) subject to section 130 (2), may not commence any legal proceedings to enforce the agreement before-

(i) first providing notice to the consumer, as contemplated in paragraph (a), or in section 86 (10), as the case may be; and

(ii) meeting any further requirements set out in section 130.

(2) Subsection (1) does not apply to a credit agreement that is subject to a debt restructuring order, or to proceedings in a court that could result in such an order.

(3) Subject to subsection (4), a consumer may at any time before the credit provider has cancelled the agreement, remedy a default in such credit agreement by paying to the credit provider all amounts that are overdue, together with the credit provider's prescribed default administration charges and reasonable costs of enforcing the agreement up to the time the default was remedied.

[Sub-s. (3) substituted by s. 32 (a) of Act 19 of 2014 (wef 13 March 2015).]

(4) A credit provider may not reinstate or revive a credit agreement after-

(a) the sale of any property pursuant to-

(i) an attachment order; or

(ii) surrender of property in terms of section 127;

(b) the execution of any other court order enforcing that agreement; or

(c) the termination thereof in accordance with section 123.

[Sub-s. (4) amended by s. 32 (b) of Act 19 of 2014 (wef 13 March 2015).]

(5) The notice contemplated in subsection (1) (a) must be delivered to the consumer-

(a) by registered mail; or

(b) to an adult person at the location designated by the consumer.

[Sub-s. (5) added by s. 32 (c) of Act 19 of 2014 (wef 13 March 2015).]

(6) The consumer must in writing indicate the preferred manner of delivery contemplated in subsection (5).

[Sub-s. (6) added by s. 32 (c) of Act 19 of 2014 (wef 13 March 2015).]

(7) Proof of delivery contemplated in subsection (5) is satisfied by-

(a) written confirmation by the postal service or its authorised agent, of delivery to the relevant post office or postal agency; or

(b) the signature or identifying mark of the recipient contemplated in subsection (5) (b).

[Sub-s. (7) added by s. 32 (c) of Act 19 of 2014 (wef 13 March 2015).]

[Date of commencement of s. 129: 1 June 2007.]” [3]

[16] It should immediately be said that the two leading Constitutional Court decisions relevant to Section 129, Sebola and Another v Standard Bank of South Africa Ltd and Another [4] and Kubyana v Standard Bank of South Africa Ltd [5] were decided prior to the amendment of Section 129 which added Section 129(5), (6) and (7). It seems that the amendments were drafted based on Sebola, clarifying the issue of Section 129 delivery before institution of proceedings and making it clear that actual knowledge of the notice by the consumer is not required, providing for two methods of delivery (one of which is registered post) and setting out the methods of proving compliance, the consumer to set out in writing the preferred manner of notice. In essence Kubyana, which was delivered after the amendment had been drafted but not promulgated, provided that if the requirements of delivery were complied with the credit provider was not required to do anything further and the consumer bore the onus of establishing that the notice had not come to his attention.

[17] The requirement that a credit provider provides notice in terms of section 129(1) to a consumer must be read with Section 130(1) which requires delivery of the Section 129 Notice[6].

[18] The notice is compulsory and has been described as a “gateway” provision[7].

[19] This creates a dilitary bar, action without prior notice is not void, but the matter cannot proceed before notice has been given.

[20] Delivery in Sebola was said to require that the document “be made available” to the consumer by one or more of the stipulated mechanisms, one of which is ordinary mail and certainly “in the manner chosen by the consumer” [8].

[21] The NCA was amended and important changes made to Section 129 and 130 as set out above.

[22] Section 129(1)(b)(i) and Section 130(1)(a) refer to a Section 129 notice.

[23] In summary after the amendment of Section 129:

[23.1] If the consumer is in default of the credit agreement the credit provider must draw the default to the notice of the consumer in writing.

[23.2] The credit provider may not commence legal proceedings to enforce liability prior to such notice.

[23.3] The credit provider may only approach the Court if the consumer is in default and have been so for at least 20 business days, and at least 10 business days has elapsed since default notice.

[23.4] If no such notice was given the Court must adjourn the matter making an appropriate order as to the steps that the credit provider must take before the matter is resumed.

[24] The Section 129 notice remains a warning function and an opportunity to rectify default to avoid legal action and provides the only gateway for the institution of proceedings, as set out in Amardien & Another v Registrar of Deeds [9].

[25] A Section 129 notice is thus a distinct document with a specific notice purpose[10].

[26] In Firstrand Bank t/a First National Bank v Moonsamy t/a Synka Liquors[11] (“FNB”) the above reasoning (in Amardien) was held to stand “firmly against a finding that non-compliance with Section 129 could be cured by attaching a Section 129 notice to a summons”.

[27] In FNB De Villiers AJ held that Section 129 and 130 provide a process to be followed in the case of non-compliance, and that non-compliance with Section 129 could not be cured by attaching a Section 129 notice to the summons. The notice being compulsory, non-compliance could be cured only by a stay and order in terms of Section 130(4). In doing so De Villiers AJ referred to Benson & Another v Standard Bank of South Africa (Pty) Ltd & Others[12].

[28] In Benson, in summary, the Court held that effectively the Section 129 Notice was elective (not compulsory), and effectively, that non-compliance could be cured by subsequent notice after proceedings had commenced providing the time limits had expired inter alia by the attachment of a Section 129 notice to a summons.

[29] De Villiers AJ rejected this argument as follows:

“[47] With great respect, for the reasons already set out, non-compliance with section 129 is not cured by attaching proof of purported compliance with section 129 to a summons, an application for default judgment, or for summary judgment. With respect, the flaws in that reasoning are the following:

[47.1] I have already addressed the limits on statutory interpretation, and that the judiciary should not step into the legislative terrain. I have to add, with respect, that decisions by the Constitutional Court and by the SCA must be applied by lower courts. It is not a matter of substance over form to find that non-compliance with section 129 cannot simply be overlooked and that a court does not have such a discretion;

[47.2] Compliance with sections 129 and 130 is not elective, but compulsory. The net effect of Phalafala, Ringani, Mthembu, Jardine, Wentzel, Shongwe and Benson is that the provisions in the NCA (as interpreted by the Constitutional Court and the SCA) that require prior notice in terms of section 129, before proceedings may be launched, are elective. Of course, one could tweak this simplistic summary of the reasoning by adding provisos such as that there must have been an attempt to comply with section 129 and/or that there must have been a mere error before one could follow the reasoning in those cases. Even such a more sophisticated formulation, in my view would still boil down to the effect of the judgment being that compliance with sections 129 and 130 is elective, not compulsory. I respectfully disagree;

[47.3] The NCA in fact makes no provision for the curing of the non-compliance with section 129, other than a stay of proceedings until a court order in terms of section 130(4) is given effect to. The wording of the NCA is that if the credit provider has not complied with section 129, the court must adjourn the matter before it. This gives effect to the purpose of the notice under section 129 of the NCA, and ensures that proper notice of default is given;

[47.4] The NCA does not provide for a parallel process (court proceedings and compliance with the NCA happening at the same time), but for a series of processes commencing with the default notice. The intent is to make a creditor take steps in series, to slow down debt recovery for alternate solutions to be considered by the credit receiver;

[47.5] Attaching a section 129 default notice to a summons, or application for payment, for default judgment or for summary judgment is not notice to a consumer of default, advising her or him what options she or he may have. It does not bring about a pause;

[47.6] The very purpose of such an attachment is to prove prior compliance with section 129 and no notice is given to the credit receiver that she or he has time to consider alternate steps whilst litigation is paused;

[47.7] Accordingly, nothing could be deduced from the lack of a reaction by the credit receiver to the notice in terms of section 129 attached to the summons, or application for payment, for default judgment, or for summary judgment. She or he is not called upon to react to the notice; and

[47.8] The law requires of the creditor, as part of its cause of action, to allege compliance with section 129 of the NCA. This judgment does not address the question if the summons must be amended to reflect due compliance with section 129 and 130 after a court order in terms of section 130(4). The question did not serve before me.”

[30] I agree with the reasoning and conclusion in FNB in this regard.

DELIVERY

[31] The first issue then in this matter is the issue of “delivery” of the Section 129 notice.

[32] Prior to the amendment of Section 129, Sebola provided that:

[32.1] The Section 129 notice must be “delivered” in writing.

[32.2] That the Section 129 notice must be made “available” to the consumer (Section 65(2) NCA), in the manner set out one of which is ordinary mail, and this being in the manner chosen by the consumer Section 65(2)(b)[13].

[33] In the instalment sale agreement clause 17.4 provides for a postal address for legal notices, and receipt is deemed to have occurred 5 business days after posting and further that the physical address provided is the selected address for legal notices to be sent. This effectively is on election to receive notices at that address (as provided in Section 65(1)(b)) including by registered mail[14].

[34] Importantly Sebola held that since proof of actual delivery to a specified address is not practicable, dispatch to a registered address, at least, must be required for delivery under Section 130 and:

“[87] To sum up: The requirement that a credit provider provide notice in terms of s 129(1)(a) to the consumer must be understood in conjunction with s 130, which requires delivery of the notice. The statute, though giving no clear meaning to 'deliver', requires that the credit provider seeking to enforce a credit agreement aver and prove that the notice was delivered to the consumer. Where the credit provider posts the notice, proof of registered despatch to the address of the consumer, together with proof that the notice reached the appropriate post office for delivery to the consumer, will in the absence of contrary indication constitute sufficient proof of delivery. If, in contested proceedings the consumer avers that the notice did not reach him or her, the court must establish the truth of the claim. If it finds that the credit provider has not complied with s 129(1), it must in terms of s 130(4)(b) adjourn the matter and set out the steps the credit provider must take before the matter may be resumed.”

[35] In this matter Defendant avers that the notice did not reach him and in this regard Sebola provides that the Court must establish “the truth of the claim”.

[36] However Section 129 was extensively amended post Sebola by inter alia adding subsection 129(5), (6) and (7) as set out above.

[37] Section 129(5) requires (using the word “must”) inter alia delivery by registered mail, and Section 129(7) stipulates specifically that proof of delivery (by registered mail) is “satisfied” by “written confirmation by the postal services ….. of delivery to the relevant post office or postal agency”.

[38] In Kubyana[15] (pre-amendment of Section 129) the following was set out:

“[35] If the credit provider complies with the requirements set out in [31] – [33] above and receives no response from the consumer within the period designated by the Act, I fail to see what more can be expected of it. Certainly, the Act imposes no further hurdles and the credit provider is entitled to enforce its rights under the credit agreement. It deserves re-emphasis that the purpose of the Act is not only to protect consumers, but also to create a 'harmonised system of debt restructuring, enforcement and judgment, which places priority on the eventual satisfaction of all responsible consumer obligations under credit agreements'. Indeed, if the consumer has unreasonably failed to respond to the s 129 notice, she will have eschewed reliance on the consensual dispute resolution mechanisms provided for by the Act. She will not subsequently be entitled to disrupt enforcement proceedings by claiming that the credit provider has failed to discharge its statutory notice obligations.

[36] As set out earlier, even if the s 129 notice has been dispatched by registered mail and the Post Office has delivered the notification to the consumer's designated address, valid delivery will not take place if the notice would nevertheless not have come to the attention of a reasonable consumer. But if the credit provider has complied with the requirements set out above, it will be up to the consumer to show that the notice did not come to her attention and the reasons why it did not.

…

[48] It is so that s 96(1) requires that notices be delivered 'at the address' provided by the recipient. However, this requirement must be understood with due regard to the practical aspects of dispatching a notice by way of registered mail. When a credit provider dispatches a notice in that manner, the notice is sent to a particular branch of the Post Office. That branch then sends a notification to the consumer, indicating that a registered item is available for collection. It is never the case that an item dispatched by registered mail will physically be delivered to an individual — such delivery only occurs if the item is sent by ordinary mail, which does not suffice for purposes of ss 129 and 130 of the Act. If a consumer elects not to respond to the notification from the Post Office, despite the fact that she is able to do so, it does not lie in her mouth to claim that the credit provider has failed to discharge its statutory obligation to effect delivery.

Clarification of the phrase 'contrary indication'

[49] A final aspect of Sebola requires clarification. Much was made by counsel of the notion of a 'contrary indication':

'The credit provider's summons or particulars of claim should allege that the [section 129] notice was delivered to the relevant post office and that the post office would, in the normal course, have secured delivery of a registered item notification slip, informing the consumer that a registered article was available for collection. Coupled with proof that the notice was delivered to the correct post office, it may reasonably be assumed in the absence of contrary indication, and the credit provider may credibly aver, that notification of its arrival reached the consumer and that a reasonable consumer would have ensured retrieval of the item from the post office.' [Emphasis added.]

[50] Mr Kubyana avers that as soon as there is a 'contrary indication' showing, as a matter of fact, that the s 129 notice did not come to the subjective attention of the consumer, that suffices to show that the requirements of s 129 have not been met. Moreover, he contends that when a s 129 notice is returned to the credit provider uncollected, notwithstanding the fact that it was sent to the correct branch of the Post Office and the fact that the Post Office sent a notification to the consumer's address that a registered item was awaiting collection, such a return constitutes a 'contrary indication'.”

[39] Kubyana and Sebola are not rendered irrelevant by the amendment of Section 129 – and provide useful authority for matters arising from Section 129 if read in conjunction with that amendment.

[40] Relevant to this matter then whilst Section 129 now does not require actual receipt of a Section 129 notice – which is deemed to be delivered, the Section does not deal with the issue of the consumer giving proof of non-receipt. Kubyana provides that if the credit provider can prove delivery by registered mail in compliance with Section 129 (as in this matter) the onus shifts to the consumer to adduce evidence as to why this was not received. If these reasons are not acceptable that is to the detriment of the consumer and notice is established[16]. Importantly in Sebola referring to registered post Cameron J held “… registered letters may go astray, at best there is a high degree of probability that most of them are delivered”[17].

[41] In Kubyana [18] the following was set out:

“[53] Once a credit provider has produced the track and trace report indicating that the Section 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 Section 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.

CONCLUSION: PROOF OF DELIVERY OF A SECTION 129 NOTICE

[54] The Act prescribes obligations that credit providers must discharge in order to bring Section 129 notices to the attention of consumers. When delivery occurs through the postal service, proof that these obligations have been discharged entails proof that:

(a) the Section 129 notice was sent via registered mail and was sent to the correct branch of the Post Office, in accordance with the postal address nominated by the consumer. This may be deduced from a track and trace report and the terms of the relevant credit agreement;

(b) the Post Office issued a notification to the consumer that a registered item was available for her collection;

(c) the Post Office's notification reached the consumer. This may be inferred from the fact that the Post Office sent the notification to the consumer's correct postal address, which inference may be rebutted by an indication to the contrary as set out in [52] above; and

(d) a reasonable consumer would have collected the Section 129 notice and engaged with its contents. This may be inferred if the credit provider has proven (a) – (c), which inference may, again, be rebutted by a contrary indication: an explanation of why, in the circumstances, the notice would not have come to the attention of a reasonable consumer.”

[42] Once the credit provider has complied with the requirements for delivery it need do nothing further and a defaulting consumer then at the most bears the onus of showing (proving) that the notice had not come to his attention and provide reasons for this[19]. This is however subject to the conclusion I reach below as to the presumption effect of Section 129 (5) and (7).

PRESUMPTIONS

[43] A presumption inter alia arises as a consequence of a factual basis established such as a statutory provision which says that if a particular issue is proved a particular presumption comes into effect.

[44] A rebuttable presumption of law creates a provisional assumption of a fact which compels a Court to reach a conclusion in the absence of evidence to the contrary[20].

[45] Some statutory presumptions are rebuttable being a rule making a provisional assumption of fact, placing the burden (onus) on the opponent to prove the contrary, others merely shifting the evidentiary burden.

[46] The language of the statute must be scrutinised to determine what is intended[21].

[47] There are also on occasion irrebuttable presumptions of law which cannot be rebutted by evidence to the contrary – these are in essence rules of substantive law[22].

[48] If rebuttable this creates only a provisional assumption which may be destroyed by evidence to the contrary.

[49] Usually a rebuttable presumption, in order to shift the onus, will require wording such as “X” has happened unless the contrary is proved[23]. Rebuttal is on proof on a balance of probabilities[24].

[50] If however it is said that evidence of a fact constitutes prima facie proof of something only an evidentiary burden is created[25].

[51] As pointed out in Essential Evidence [26] it has long been established that if it is proved that a letter was properly addressed, stamped and posted (and not returned) a Court may take judicial notice of the regularity of the postal service and infer that it was received – as a matter of inference not a presumption, all circumstances to be considered to decide if the inference may be drawn[27].

[52] Section 7 of the Interpretation Act provides for service of a properly addressed posted registered letter as deemed to be effected “unless the contrary is proved”.

[53] Section 129 (5) the NCA requires the notice to be “delivered” by inter alia registered mail. Section 129 (7) provides that “Proof of delivery contemplated in subsection (5) is satisfied by: (a) Written confirmation by the postal service …… of delivery to the relevant post office……”.

[54] It seems to me that this presumption is one of law rebuttable only by facts on a balance of probabilities (the Defendant bearing the onus) showing failure of the prior fact being “written confirmation”. Once established delivery to the consumer is satisfied it being unnecessary to go to the next step in the evidence, being delivery by the post office to the address (of a registered slip).

[55] In this matter there is the relevant proof of delivery to the relevant post office and that is sufficient. Whether or not Defendant received a slip or not or whether this was delivered is legally irrelevant, delivery being presumed.

THE FACTS

[56] Plaintiff has presented the relevant proof of posting by registered mail and a track and trace report demonstrating not only written confirmation by the postal service of delivery to the relevant Queenstown Post Office but further dispatch of the first notice to the consumer.

[57] The evidence of the Defendant was that his physical address has an external post box in the perimeter available to the postal services and that he checked this regularly on his arrival at home from time to time.

[58] He said that at the relevant time he followed this procedure and that no postal slip relevant was received.

[59] Had he received a slip he said that he would have collected the item and if he had received a Section 129 notice would have gone to Plaintiff bank to negotiate payment.

[60] There are then the two mutually contradictory versions applicable. Put in terms of Sebola and Kubyana the onus is on the Defendant to rebut the inference/presumption of delivery, but in the context of Section 129. The question is however that I have concluded that once proof of delivery to the correct post office is proved and not rebutted this is the end of the matter. If I am incorrect this issue rebuttal however falls to be considered on the facts.

THE APPROACH TO THE EVIDENCE AS TO THIS REBUTTAL

[61] If I am incorrect as to the interpretation of Section 129 (5) and (7) and if rebuttal of delivery encompasses proof of the non-delivery or otherwise of a postal registered slip I comment as follows.

[62] The issue of factual disputes and credibility is dealt with in Stellenbosch Farmers’ Winery Group & Another v Martell et Cie and Others [28] :

“To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness' candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness' reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court's credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.”

[63] In this regard the following was stated in National Employers General Insurance Association v Gany [29]:

“Where there are two stories mutually destructive, before the onus is discharged, the Court must be satisfied that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the Court of first instance that the version of the litigant upon whom the onus rests is the true version and that in this case absolute reliance can be placed upon the story as told by A Gany.”

[64] In National Employers’ General Insurance Co Ltd v Jagers [30], the following was said:

“It seems to me, with respect, that in any civil case, as in any criminal case, the onus can ordinarily only be discharged by adducing credible evidence to support the case of the party on whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the present case, and where there are two mutually destructive stories, he can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept his version as being probably true. If however the probabilities are evenly balanced in the sense that they do not favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if the Court nevertheless believes him and is satisfied that his evidence is true and that the defendant's version is false.”

[65] In my view in this matter and as set out in Sebola, once there is proof of dispatch of a registered postal article and that this was received at the correct post office and that a first notification has been dispatched to the stipulated address (as in this matter), there is an overwhelming probability that the article would be placed in or at the correct address, in this case Defendant’s home post box.

[66] In my view the statement by Defendant that he did not receive the postal slip, in this context, is inextricably bound up with the consideration of the probabilities (if this is even relevant at all as set out above).

[67] Plaintiff’s version, and the overwhelming probability that the registered slip was delivered to Defendant’s address, absent any reasonable explanation as to why this was not received (for e.g. that Defendant was away on leave or in hospital or out of the district on business), is insufficient to dislodge the overwhelming probabilities in Plaintiff’s favour and accordingly that the fact that the registered slip was delivered to Defendant’s address is probably true. The onus issue here falling on Defendant is of substantial importance to the result, and on the probabilities Defendant has failed to rebut the presumption of delivery.

[68] In considering the above I have also applied the Stellenbosch Farmers’ Winery matter (supra).

[69] In my view, in the result the Plaintiff has either way sufficiently established compliance with Section 129 of the NCA and absent any further defence, and there is none, Plaintiff must prevail[31].

ORDER

[70] The following order issues:

1. The Instalment Sale Agreement concluded between Plaintiff and Defendant on 22 June 2011 is cancelled.

2. Defendant is ordered to return the 2011 HYUNDAI SONATA 2.4 GLS EXECUTIVE A/T with engine number G4KEAU217400, chassis number KMHEC41CMBA257080 and Registration Number FPX680EC to Plaintiff.

3. Failing return of the aforesaid vehicle, the Sheriff is authorised to attach, seize and hand over the Goods, being a 2011 HYUNDAI SONATA 2.4 GLS EXECUTIVE A/T with engine number G4KEAU217400, chassis number KMHEC41CMBA257080 and Registration Number FPX680EC to Plaintiff

4. Defendant is to pay Plaintiff’s costs of suit on the Magistrate’s Court scale.

M.J. LOWE

JUDGE OF THE HIGH COURT

Obo Plaintiff:

Adv S Sephton

Instructed by:

Joubert Galpin Searle, Port Elizabeth

c/o Huxtable Attorneys, Grahamstown

Obo Defendant:

Mr C Pangwa of Caps Pangwa and Associates, Grahamstown

[1] The instalment sale agreement and supporting documents make no reference to any other postal address and certainly does not reflect a Post Office Box Queenstown address.

[2] Defendant alleges having given Plaintiff his Queenstown post office box address and alleges receipts at the Post Office Box of statements from Plaintiff relevant to the instalment sale agreement. He has a Post Box in the perimeter of his home at 45 Kei Crescent, Queenstown.

[3] Section 129 must be read with Section 130 and in the context of the NCA.

[4] 2012 (5) SA 142 CC [47]

[5] 2014 (3) SA 56 (CC)

[6] Sebola (supra) [87].

[7] Sebola (supra) [45].

[8] Sebola (supra) [66] and [67].

[9] 2019 (3) SA 341 (CC).

[10] Amardien (supra) [57] – [59].

[11] 2021 (1) SA 225 (GJ).

[12] 2019 (5) SA 152 (GJ).

[13] This covers a consumer’s choice of registered mail Sebola [68] requiring at least dispatch of the notice.

[14] Sebola [67] and [68]

[15] (supra) [35] – [36] and [48] – [50].

[16] I have been greatly assisted in all the by the article “Delivery of the Compulsory Section 129 (1) notice as required by the NCA 2005” S Govender & M Kelly-Louw PER/PELJ 2018 (21) DOI to which I have had frequent reference and in part relied upon.

[17] Paragraph [75] and [86], [87].

[18] [54] – [55].

[19] Kubyana [35] – [36], [49] – [53].

[20] Essential Evidence (Zeffertt and Paizes, LexisNexis) Chapter 6, Page 55-57; Law of Evidence, (Schmidt and Rademeyer, LexisNexis) 2-41 and The South Africa Law of Evidence (Second Edition, Zeffertt and Paizes) 184-215.

[21] Essential Evidence (supra) 57.

[22] Scagell & Others v Attorney-General of the Western Cape & Others [1996] ZACC 18; 1997 (2) SA 368 (CC) [30].

[23] Law of Evidence (supra) 212/214.

[24] S v Zuma & Others 1995 (1) SACR 568 (CC).

[25] Scagell (supra) [11].

[26] At 63.

[27] Goldfields Confectionary & Bakery (Pty) Ltd v Norman Adam (Pty) Ltd 1950 (2) SA 763 (T) 768.

[28] 2003 (1) SA 11 (SCA) [5]

[29] 1931 AD 187.

[30] 1984 (4) SA 437 (E) at 440 D – G

[31] In the first instance that Section 129(5) and (7) provide for delivery to be sufficiently proved by proof of the delivery of the registered Section 129 Notice at the correct post office is all that is required, alternatively in the second that if it is open to Defendant to rebut delivery of a registered slip to the correct address, this falls to be determined in Plaintiff’s favour.