Rossouw v First Rand Bank Limited t/a FNB Homeloans

On 8 June 2006, the appellants (a married couple) concluded a loan agreement with the respondent bank (a registered credit provider) for R1,030,000, repayable in monthly instalments of R9,003.88, secured by a mortgage bond of R1,800,000 over their immovable property. About two years later, the appellants fell into arrears. In September 2008, the bank sent them a notice in terms of section 129(1)(a) of the National Credit Act 34 of 2005. The appellants attended debt counselling and made a restructuring proposal. The bank countered with a revised payment plan which the appellants agreed to but then abandoned. Only one payment of R20,450 was made on 23 March 2009. On 23 April 2009, the bank allegedly delivered a fresh section 129(1)(a) notice. On 22 May 2009, the bank issued summons claiming R1,117,180.65 plus an order declaring the property executable. The appellants entered appearance to defend. The bank then applied for summary judgment. The Pretoria High Court (Ellis AJ) granted summary judgment in favour of the bank.

• Whether section 130(2) of the National Credit Act limits a credit provider's claim under a mortgage agreement to the proceeds realised upon execution of the mortgaged property
• Whether the credit provider complied with the provisions of section 129(1) read with section 130(1) of the National Credit Act regarding delivery of notice to the consumer
• What constitutes proper 'delivery' of notice under the National Credit Act
• Whether the affidavit in opposition disclosed a bona fide defence justifying refusal of summary judgment

1. The appeal was upheld with costs including costs of two counsel. 2. The order of the court below was set aside and replaced with: 'The application for summary judgment is dismissed with costs.'

The binding legal principles established are: (1) Section 130(2) of the National Credit Act applies only to instalment agreements, secured loans and leases involving movable property, not to mortgage agreements. Mortgagees may claim shortfalls after execution under section 130(1). (2) Compliance with sections 129(1) and 130(1) is a peremptory prerequisite for commencing legal proceedings under a credit agreement. (3) 'Delivery' of notice under the Act means despatch by one of the methods in section 65(2) chosen by the consumer - actual receipt is not required, but the credit provider must prove despatch occurred by the agreed method. (4) A credit provider must specifically plead and prove the method of delivery used; bald allegations of compliance are insufficient. (5) In summary judgment proceedings under rule 32, evidence is strictly limited to the founding affidavit - documents cannot be handed up at the hearing to supplement deficient affidavits. (6) Under section 130(3), a court may only determine a matter if satisfied that the procedures required by sections 127, 129 or 131 have been complied with, despite any contractual provisions to the contrary.

Maya JA made several important observations: (1) The legislature's grant to consumers of the right to choose the method of delivery places the risk of non-receipt on the consumer's shoulders - it is fair to conclude the legislature considered despatch in the chosen manner sufficient. (2) The Act's purposes include protecting consumers from exploitation while also achieving equity by balancing parties' rights - this interpretation does not detract from that object. (3) The definition of 'delivered' in the National Credit Regulations applies only within the regulations themselves and should not be used to interpret the Act. Cloete JA added: (1) Certificates of balance handed in at hearings perform a useful function and are not inadmissible under rule 32(4) as they are merely arithmetical calculations or admissions against interest, not new evidence. (2) Defendants who have not received notices can invoke rules 35(11) and 35(12) to obtain production of documents evidencing compliance. (3) Credit providers using standard form contracts should not complain if courts require strict compliance when they fail to inform consumers of their options under section 65(2). (4) The Act's protective purposes mean courts should approach standard form certificates of compliance with a 'leery eye'. (5) Where a consumer chooses ordinary post as the delivery method but the contract requires registered post, the greater (registered post) includes the lesser, so registered post would be both necessary and sufficient.

This case provides important guidance on the interpretation and application of the National Credit Act's notice provisions (sections 129 and 130). It clarifies that: (1) section 130(2) does not limit mortgagees' rights to claim shortfalls after execution; (2) credit providers must prove compliance with notice requirements by showing the method of delivery used, not merely that notice was 'given' or 'issued'; (3) 'delivery' means despatch by the method chosen by the consumer under section 65(2), not actual receipt, but the credit provider bears the onus of proving despatch; (4) evidence in summary judgment proceedings is strictly limited to the founding affidavit under rule 32(4); and (5) courts must be satisfied that the procedural protections afforded to consumers by the Act have been complied with before granting judgment. The case emphasizes that while the Act protects consumers, credit providers must strictly comply with its requirements to enforce their rights.