amicus curiae - default judgment - National Credit Act - interpretation of Sebola judgment - SCA

SERI was admitted as amicus curiae in an appeal to the SCA which concerns the correct interpretation of the decision of the Constitutional Court in Sebola (see here for more on this case). SERI is intervening because there is no-one to make submissions on behalf of the respondents in this case. SERI will submit that the High Court judgment was correctly decided, when it held that the Sebola decision precluded it from granting the applications for default judgment.

In Sebola, SERI submitted that section 129(1)(a) of the National Credit Act 34 of 2005 (NCA), requires the contents of a notice issued in its terms to come to the attention of the consumer to whom it is addressed. A court dealing with enforcement proceedings in terms of section 130(4) of the NCA must be satisfied, on a balance of probabilities, that the section 129 notice has indeed come to the attention of the consumer.

The Constitutional Court accepted both of these submissions. In doing so, the court drew a distinction between the statutory test set out in section 129(1)(a) of the NCA, on the one hand, and the evidentiary showing a credit provider had to make to demonstrate that this test was met, on the other. While section 129(1)(a) does require a notice issued in its terms to come to the attention of the consumer, sections 129 and 130, read together, only require a credit provider to show, on the facts of a particular case, that the notice probably reached the consumer.

SERI submits that the High Court judgment was correctly decided when it held that the Sebola decision precluded it from granting the applications for default judgment. On the facts it was clear that the section 129(1)(a) notices, required in terms of the National Credit Act 34 of 2005, did not reach the respondents.

ABSA argues that Sebola cannot be read as giving a recalcitrant consumer a mechanism through which to evade due process of law. SERI agrees, but will submit that there is no justification for inferring, as ABSA does, that the respondents in this appeal “chose” not to collect their notices. This is so because -

    1. There are many other explanations for why the notice was not collected. The notification could have gone astray. The respondents may have been absent from their address for the period for which the notice was available for collection. They may have been ill in hospital. We simply do not know.
    2. Even assuming that the respondents saw the notification that registered mail was waiting for them at the Post Office, they would have had no way of knowing that the mail contained a section 129 notice. The notification sent out does not say what the mail waiting for the consumer is. If the respondents did not know what the mail waiting for them was, there can be no suggestion that they were seeking to evade its delivery.
    3. There is no justification for inferring that, simply because the respondents were in financial distress, they would have avoided collecting their registered mail altogether, knowing that a section 129 notice was waiting for them. This is not a probable inference on the facts.
    4. While it is true that the conduct of one respondent may suggest the attitude of an evasive consumer, there is nothing to suggest that he deliberately chose not to collect his section 129 notice, or his registered mail. There is nothing to support the suggestion that the other respondents were evasive consumers, or that they deliberately chose not to collect their section 129 notices.

The counsel for the amicus curiae are Advocates Anna Marie De Vos SC and Stuart Wilson. The case was heard in the SCA on 22 August 2013. On 6 September 2013 supplementary submissions were filed dealing with the appealability of the order challenged.

On 30 September, the SCA struck the matter from the roll. Three of the judges held that the order of the High Court was not appealable, while the other two judges dismissed the appeal, holding that the High Court has right to insist that consumers actually receive important information concerning the exercise of their statutory rights.

  • Judgment (30 September 2013) here.
  • Supplementary submissions of the amicus curiae (6 September 2013) here.
  • Heads of argument (7 August 2013) here and practice note (7 August 2013) here.
  • Founding affidavit (10 July 2013) here.