Mbalati Aldworth Dzunisani v FirstRand Bank Limited t/a Wesbank

The applicant entered into an online instalment sale agreement with the respondent bank to purchase a 2021 Land Rover Range Rover Sport for R2,854,420.76, payable in monthly instalments of R33,224.85 over 71 months with interest. After falling into arrears, the respondent obtained a default judgment against the applicant on 13 September 2023 under Rule 31(5). A writ of execution was issued on 29 September 2023, and the Sheriff seized the vehicle on 11 January 2024. The applicant first attempted to access the case file on 13 November 2023, two months after the default judgment and one month after being informed by the Sheriff. He filed an urgent application for the return of the vehicle on 24 January 2024. The parties agreed on 6 February 2024 to remove the matter from the urgent and unopposed rolls. The applicant then brought this application to rescind the default judgment.

• Whether the default judgment should be rescinded under Rule 31(2)(b) of the Uniform Rules of Court
• Whether the applicant showed good cause or sufficient cause for rescission under common law
• Whether condonation should be granted for the late filing of the rescission application
• Whether the default judgment should be rescinded under Rule 42(1)(a) as being erroneously granted in the applicant's absence
• Whether proper service of the section 129 notice under the National Credit Act was effected
• Whether proper service of the summons was effected by the Sheriff

The application to rescind the default judgment was dismissed with costs on scale A.

For rescission of a default judgment under Rule 31(2)(b) or common law, an applicant must provide: (1) a reasonable and acceptable explanation for the default; (2) evidence that the application is made bona fide without intention to delay the plaintiff's claim; and (3) a bona fide defence which prima facie carries some prospects of success. Under the National Credit Act and following Kubyana, a credit provider discharges its obligation to effect delivery of a section 129 notice once it produces evidence that the notice was sent by registered mail to the correct Post Office branch and a notification was sent to the consumer at their chosen domicilium address. The burden then shifts to the consumer to explain why it was unreasonable to expect the notice to reach their attention. Service of process by affixing a copy at a person's domicilium address in accordance with Rule 4(1)(a)(iv) constitutes proper service, and such service may be effected between 07h00 and 19h00 as permitted by Rule 4(1)(b).

The Court observed that the applicant's statements indicating he would have investigated whether he owed money and negotiated with the respondent if he had seen the summons demonstrated that the application was not made bona fide but rather as a delaying tactic to excuse his failure to meet contractual obligations. The Court noted that although the degree of lateness in bringing the application was negligible, the tenuous explanation for the delay and lack of prospects of success were fatal to the condonation application. The Court also noted that it made sense for the consumer to bear the burden of rebutting the inference of delivery of a section 129 notice, as the information regarding the reasonableness of their conduct generally lies solely within their knowledge.

This case reinforces the principles established in Kubyana v Standard Bank regarding what constitutes proper delivery of section 129 notices under the National Credit Act. It confirms that credit providers need only show that a notice was sent by registered mail to the correct Post Office branch and that notification was sent to the consumer's chosen address; the burden then shifts to the consumer to explain why they did not receive it. The case also demonstrates the strict approach courts take to rescission applications where the applicant fails to provide a reasonable explanation for default, lacks a bona fide defence with prospects of success, and appears to be using the rescission application as a delaying tactic. It confirms that service by affixing documents at a person's domicilium address in accordance with the Rules is proper service, and that Sheriffs may effect service between 07h00 and 19h00 as prescribed by Rule 4(1)(b).