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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO.  174/2017 and 184/2017

In the matter between:

MZWANDILE TONNY CEDRIC BOBOTYANA                                                      Applicant

and

NEDBANK LIMITED                                                                                         Respondent

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

Bloem J.

[1] On 15 August 2017 I granted summary judgment in favour of the respondent against the applicant in the above cases.  In terms of that judgment the applicant was ordered to deliver two vehicles, a 2011 Hyundai Sonata 2.4 GLS automatic transmission and a 2011 Mercedes Benz Viano 3.0 CDI Trend automatic transmission, to the respondent.  The cause of action was the applicant’s failure to make monthly payments to the respondent in terms of instalment sale agreements that he concluded with the respondent in terms of the National Credit Act.[1] 

[2] In opposition of the applications for summary judgment the applicant delivered affidavits wherein he did not “disclose fully the nature and grounds of the defence and the material facts relied upon therefor”, as required by rule 32 (3) (b) of the Uniform Rules of Court.  He filed an affidavit in each case wherein he alleged, as a defence, that he did not receive a notice in terms of section 129 of the National Credit Act from the respondent and that the “post office, has, according to the tracking report, seemingly only sent one notice to my address and there is no indication in the tracking report that I received that notice.” (own underlining)

[3] Implicit in the applicant’s allegation quoted above is an acknowledgement that the respondent placed before the court a track and trace report which indicated that the notice in terms of section 129 was sent to the correct branch of the post office and that the post office sent a notification slip to the applicant’s selected residential address.  In Kubyana v Standard Bank of South Africa Ltd[2] Mhlantla AJ (as she then was) found that, under those circumstances, the credit provider will generally have shown that it has discharged its obligations under the National Credit Act to effect delivery.  It would then be up to the consumer to show that the notice did not come to his or her attention and the reasons why it did not.

[4] In this case the applicant made the bald allegation that he did not receive the notice without stating why he did not receive it.  I granted summary judgment because the applicant failed to give reasons why he did not receive the notice in terms of section 129 despite the fact that the respondent established that the Greenfields Post Office in East London sent the notification slip to his residential address.  I am of the opinion that an appeal, against my finding that the applicant’s opposition to the application for summary judgment has no merit, has no prospects of success.  The application for leave to appeal should accordingly be dismissed with costs. 

[5] The legal principles relevant to the delivery of a notice in terms of section 129 to a consumer were discussed in Sebola and another v Standard Bank of South Africa Ltd and another[3].  The scope and application of Sebola were explained in Kubyana.  The latter case provided certainty about how a credit provider must go about discharging its obligation to deliver a notice in terms of section 129 to a consumer and the consumer’s duty to explain why it is not reasonable to conclude that the notice reached his or her attention.  The applicant failed to explain why, against the background of the respondent sending the notice to the Greenfields Post Office and that post office sending a notification slip to his residential address, it cannot be concluded that he received that notice and escape the consequences thereof. 

[6] In my view the applicant must have known, when he deposed to the affidavits in opposition of the application for summary judgment, that he did not have a bona fide defence to defeat the applicant’s application for summary judgment.  It will be remembered that prior to the delivery of those affidavits he raised only the non-joinder of a curator bonis in opposition to the application for summary judgment.  That point was abandoned when the applicant delivered the affidavits wherein he raised the respondent’s alleged failure to deliver the notice in terms of section 129 to him as a defence.  In my judgment I found that the applicant’s contention, that he did not receive the notice in terms of section 129, had no merit.  That conclusion was based squarely on the Kubyana case.

[7] To seek leave to appeal under the above circumstances amounts, in my view, to an abuse of process.   The applicant must have known when he made the application for leave to appeal that he has no prospects of success on appeal.  The inescapable conclusion is that leave to appeal was sought to delay the delivery of the vehicles.  That delay causes prejudice to the respondent because the vehicles lose value on a daily basis.

[8] Mr Sandi, counsel for the applicant, submitted that, although the applicant has conducted the application for leave to appeal in a cavalier manner, the court should nevertheless exercise its discretion against a punitive costs order against him.  He submitted that the applicant “cannot think objectively about personal matters and litigation affecting his personal matters”.  There is no evidence upon which that submission is based.  The facts which I have taken into account to determine whether or not a punitive costs order is warranted in the circumstances are that judgment was delivered on 15 August 2017, the application for leave to appeal was delivered 15 September 2017, some eight court days late because, in terms of rules 49 (1) (b) of the Uniform Rules of Court, that application should have been made within fifteen court days from 15 August 2017.  The registrar thereafter gave written notice that the application for leave to appeal would be heard on 17 October 2017.  That notice of set down was served on the applicant’s correspondent attorney in Grahamstown.  At no stage did the applicant make an application for condonation for the late filing of the application for leave to appeal.

[9] On 16 October 2017 the applicant delivered an “affidavit” in support of an application for the postponement of the application for leave to appeal.  Only the first page of the affidavit was delivered.  It was not attached to a notice or notice of motion.  What can be gleaned from paragraphs 3, 4 and 5 of that affidavit is that the applicant sought a postponement because he could not secure the services of counsel because he was ill, having been diagnosed with pneumonia.  He alleged that he had to take a rest to recover and accordingly did not have sufficient time to secure the services of counsel for 17 October 2017.  He sought a postponement for three weeks.  He tendered the wasted costs occasioned by such a postponement, if granted.

[10] Despite the application for a postponement having been opposed by the respondent, I postponed it to 19 October 2017 and ordered the applicant to pay the costs occasioned by that postponement.  On 19 October 2017 Mr Sandi represented the applicant.  He stated from the bar that he was briefed the previous day.  Having heard counsel I requested the parties to file heads of argument on why a punitive costs order should not be made against the applicant in the event of the application for leave to appeal being dismissed.  Both parties filed supplementary heads of argument in that regard.  I have already dealt with Mr Sandi’s submission. 

[11] Mr Olivier, counsel for the respondent, submitted that it would be reasonable to assume that the applicant, as a practising attorney, has a reasonable knowledge and understanding of the procedural law and the rules of court relevant to this application.  As such he is expected to apply and adhere to those rules.  I agree with that submission.  Throughout the litigation the applicant did not apply the relevant rules.  To the contrary, there was a total disregard for the rules of court, for instance, making an application for leave to appeal outside the time period without bothering to apply for condonation, filing only the first page of an affidavit without a notice and failing to brief counsel to appear in court on 17 October 2017.  Assuming that the applicant was indeed ill before 17 October 2017, there was no reason why he could not have instructed his Grahamstown correspondent attorney to brief counsel to represent him in court on that day.  He did not have to travel to counsel to brief him. 

[12] This is a case where the court should show its displeasure with the applicant’s abusive conduct by making a punitive costs order for two reasons.  Firstly, the applicant must have known when he made the application for leave to appeal that it has not merit.  Secondly, the applicant showed a complete disregard for the rules of this court, which cannot be tolerated.  As a practising attorney the applicant should know that court processes are not to be abused.  The time spent on this application (the hearing and the writing of this judgment) could usefully have been spent on a deserving case.  In the circumstances and for the reasons set out above, the applicant should pay the respondent’s costs of this application on the  scale as between attorney and client.

[13] In the result, it is ordered that:

13.1.       the application for leave to appeal in case numbers 174/2017 and 184/2017 is dismissed;

13.2.       the applicant pay the respondent’s costs of the application for leave to appeal on the scale as between attorney and client.

_________________________

 

G H BLOEM

Judge of the High Court

 

For the applicant:                                Adv N J Sandi, instructed by Mqeke Attorneys, Grahamstown

 

For the respondent:                            Adv W H Olivier, instructed by Dold and Stone Inc, Grahamstown

Date of hearing:                                  19 October 2017

Date of delivery of the judgment:        31 October 2017

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