CCT65/13

[2014] ZACC 1

2014 (3) SA 56 (CC)

2014 (4) BCLR 400 (CC)

Mhlantla AJ Majority judgment

Jafta J separate judgment

7 November 2013

20 February 2014

http://hdl.handle.net/20.500.12144/3722

Application for leave to appeal against a judgment of the Pretoria High Court: Standard Bank of South Africa Ltd v Kubyana (55503/10) [2012] ZAGPPHC 259 (8 November 2012).

National Credit Act 34 of 2005 – section 129 – notice of default – obligation to deliver. Consumer’s election on manner of delivery of notices – credit provider must respect that election – delivery amounts to the taking of steps that would bring the notice to the attention of a reasonable consumer – consumer may not claim non-delivery of notice if she has been unreasonably remiss in failing to engage with the notice. Application for leave to appeal against a judgment of the High Court which held that Standard Bank was entitled to enforce the debt owed by the applicant in terms of an instalment sale agreement concluded in terms of the National Credit Act. The majority found that a credit provider wishing to enforce a credit agreement must deliver a notice to a consumer setting out the consumer’s default and drawing the consumer’s attention to his or her rights in accordance with the provisions of section 129 of the Act. In order to effect delivery, the credit provider must take those steps that would bring the notice to the attention of a reasonable consumer. When a consumer has elected to receive notices by way of registered post, a credit provider must generally prove (i) dispatch of the notice by way of registered mail; (ii) that the notice reached the correct branch of the Post Office; and (iii) that the notification from the Post Office requesting that the consumer collect the section 129 notice was sent to the chosen address. Jafta J wrote separately on the interpretation of section 129(1) of the Act to clarify what was previously said about that provision by the Constitutional Court in its earlier case of Sebola v Standard Bank [2012] ZACC 11. Both Mhlantla AJ and Jafta J concluded that Standard Bank had done all that was required of it by the Act and dismissed the appeal with no order as to costs. Main judgment: Mhlantla AJ (Moseneke ACJ, Cameron J, Dambuza AJ, Froneman J, Madlanga J, Skweyiya J and Van der Westhuizen J concurring). Separate concurrence: Jafta J (Moseneke ACJ, Cameron J, Dambuza AJ, Madlanga J, Nkabinde J, Van der Westhuizen J and Zondo J concurring).