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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)     REPORTABLE: YES

(2)      OF INTEREST TO OTHER JUDGES: YES

 

CASE NUMBER:17859/2013

 

In the matter between:

 

FAVOURITE MULAISI                                                                                   1^ST APPLICANT

JOSEPH PATRICK TSHAUKE                                                                      2^ND APPLICANT

           

and

 
CHANGING TIDES 17 (PTY) LTD                                                                 RESPONDENT

 

JUDGMENT

KUBUSHI, J

[1]          This application for rescission of a summary judgement granted in default on 29 May 2014 turns on the narrow issue of whether a section 129 notice ("the notice") in terms of the National Credit Act 34 of 2005 ("the National Credit Act") dispatched to the correct Post Office and returned to the sender on the same day it reached the Post Office can be said to have duly come to the notice of the appellants.

[2]          According to the track and trace report that served in court on 29 May 2014, the notice reached Willow Way Post Office on 1 January 2013 and ultimately reached the Mondeor Post Office on 21 February 2013. The parties are agreed that Mondeor Post Office is the correct Post Office which services the domicilium address of the applicants. The track and trace also indicates that the notice was returned by the Mondeor Post Office to the sender on the same day it reached that Post Office.

[3]          The applicants' submission is that since the notice was returned to sender on the same day it arrived, no notification was sent to them by the Post Office to make them aware that a document was available for collection. As a result, the contention is that they never received any notification that the notice was awaiting them at the Mondeor Post Office. The applicants argue further that the Judge presiding in this matter on 25 May 2014 was never made aware of the irregularity, thus, summary judgment was mistakenly granted, for, if the presiding Judge was aware of such irregularity he would have adjourned the proceedings and made an order in terms of section 130 (4) of the National Credit Act instead of granting judgment.

[4]        The respondent is opposing the application for the rescission of the summary judgment on the ground that the notice was sent to the address chosen by the applicants as their domicilium citandi et executandi. It is, thus, apparent that the respondent correctly sent the relevant postal piece to such address. The relevant track and trace reports meets the legal requisites in that it confirmed that the relevant Post Office received the particular postal piece. As such, the procedure followed by the respondent in sending the notice complies with the National Credit Act and the decisions in Sebo/a v Standard Bank of South Africa ltd,[1] as well as Kubyana v Standard Bank of South Africa ltd.[2]

[5]          The court in Kubyana had this to say about compliance with section 129 of the National Credit Act:

"[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 lt has done what is necessary to ensure that the notice reached the consumer. lt 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.

[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 the 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 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."

 

[6]        It is not in dispute that the notice in this instance was sent via registered mail and was sent to the correct branch of the Post Office servicing the domicilium address of the applicants. What is in dispute is whether the Post Office sent out a notification to the applicants that a registered item was available for their collection and that such notification reached the applicants.

[7]        The applicants are denying that a notification was sent to them by the Post Office as they never received such notification. This appears to be the truth because when perusing the track and trace report it is quite evident that the notice was returned to the sender on the same day it reached the Post Office. The track and trace report does not show, as is normally the case that a notification was sent to the applicants. In actual fact, the respondent is also not denying that according to what is depicted on the track and trace report, the notification was sent back to the sender on the same date it reached the Post Office. If the notification was sent back to sender, it could not have been sent to the applicants. Once it is accepted that the Post Office did not sent the notification to the applicants, it should be accepted as well that the notice did not come to the attention of the applicants.

[8]          In order to overcome this hurdle, the respondent filed a supplementary affidavit in which it attached a copy of another track and trace report which now indicates that the Post Office did sent a notification to the applicants. The problem with this new evidence is that it did not serve before the Judge who granted the summary judgment. At the time the Judge · granted the summary judgment it appears that he was neither aware that the track and trace report before him indicated that the notice was returned to sender on the same day it reached the Post Office; nor was he aware that there is another track and trace report indicating that the Post Office sent a notification to the applicants, hence the contention that the Judge granted the summary judgment erroneously.

[9]          I am satisfied that the appellants have succeeded to show good cause in the circumstances of this application. Their explanation proves that the notice did not reach their attention and is acceptable. Once the explanation has been accepted it disproves the respondent's submission that it delivered the notice. As a result, the application for rescission of the summary judgment ought to be granted.

[10]       Therefore, I make the following order -

1.          The application for rescission is granted.

2.          The Summary Judgment is set aside inclusive of the:

2.1     order directing the applicants to make payment jointly and severally, the one paying the other to be absolved, of the sum of R1 295 640. 33 together with interest thereon at the rate of 8, 80% per annum compounded monthly in arrears from 1 March 2013 to date of payment and costs; and

2.2        the order declaring Erf 136 Suideroodt Township, Registration Division I.R. Province of Gauteng, in extent: 1092 Square Metres Held by Deed of Transfer T48079/2011, Subject to the conditions therein contained or referred to, be specially executable.

 

3.         The application is adjourned in terms of section 130 (4) of the National Credit Act 34 of 2005 for service of the notice in terms of section 129 of the National Credit Act.

4.         The respondent is ordered to pay the costs of the application.

 

 

 

E.M. KUBUSHI

JUDGE OF THE HIGH COURT

 

 

 

 

 

Counsel for 1^ST & 2^ND Applicant                      : ADV. K.HOWIET

Instructed by                                                       : MATHOPO ATTORNEYS

Counsel for Respondent                                     : ADV. P.I. OOSTHUIZEN

Instructed by                                                       : VELILE TINTO & ASSOCIATES

Date heard                                                           : 21 AUGUST 2018

Date of judgment                                                : 19 SEPTEMBER 2018

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