CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 65/13

In the matter between:

MOSHOMO LEVIN KUBYANA Applicant

and

STANDARD BANK OF SOUTH AFRICA LTD Respondent

and

SOCIO-ECONOMIC RIGHTS INSTITUTE

OF SOUTH AFRICA Amicus Curiae

Neutral citation: Kubyana v Standard Bank of South Africa Ltd [2014] ZACC 1

Coram: Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ,

Jafta J, Froneman J, Madlanga J, Mhlantla AJ, Nkabinde J,

Van der Westhuizen J and Zondo J

Heard on: 7 November 2013

Decided on: 20 February 2014

Summary: 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.

2
 ORDER

[1] On appeal from the North Gauteng High Court, Pretoria (Ledwaba J):

1. Leave to appeal is granted.

2. The appeal is dismissed.

3. There is no order as to costs.

[2]

JUDGMENT

MHLANTLA AJ (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ,

Froneman J, Madlanga J and Van der Westhuizen J concurring):

[3] Introduction

[4] What are the steps that a credit provider must take in order to ensure that a

notice of default reaches a consumer before it may commence litigation?

3
 What must a credit provider prove in order to satisfy a court that it has

discharged its obligation to effect proper delivery of a statutory notice?

These are the issues we are required to determine in this matter, which

comes before us as an application for leave to appeal wherein the applicant

challenges a decision of the North Gauteng High Court, Pretoria (High

Court).

[5]

[6] Background

[7] In November 2007 the applicant (Mr Kubyana) and the respondent

(Standard Bank) entered into an agreement regulated by the National Credit

Act,1 in terms of which Mr Kubyana purchased a motor vehicle and was

obliged to pay off the purchase price in 60 monthly instalments of R2

501,25 each. He chose an address as his domicilium citandi et executandi2

for purposes of all notices and correspondence sent by Standard Bank in

relation to the instalment sale agreement.

[8]

[9] On a number of occasions between October 2008 and July 2010 Mr

Kubyana fell into arrears with his payments. Standard Bank attempted to

bring this to his attention in various ways. It contacted him by telephone on

numerous occasions, and during these conversations he made promises to

settle his outstanding debt.3 Standard Bank also attempted to discuss Mr

1
34 of 2005 (Act).
2
That is, an address for the purposes of being cited in litigation and for the execution of legal process.
3
During oral argument counsel for Mr Kubyana contended that Standard Bank’s calls to Mr Kubyana went
unanswered. It is apparent from the record that this is incorrect.

4
 Kubyana’s indebtedness with him at his workplace. Its employees twice

attempted to visit him there, to no avail.

[10]

[11] Thereafter Mr Kubyana’s account consistently remained in arrears for a

number of months. On 15 July 2010 Standard Bank sent him a notice in

terms of section 129(1) of the Act,4 setting out his statutory rights and

requesting him to pay his outstanding debts. The notice was sent by

registered mail to the address nominated by Mr Kubyana in the instalment

sale agreement.

[12]

[13] According to the track and trace report 5 from the Post Office, the notice

reached the Pretoria North Post Office on 20 July 2010. On the same day

the Post Office sent a notification to the address nominated by Mr Kubyana,

informing him that an item had been sent by registered mail and was

awaiting his collection. He failed to collect the registered item (the section

129 notice). Seven days later a second notification was sent to him. Again

he did not respond and the notice remained at the Pretoria North Post Office.

On 1 September 2010 the Post Office returned the unclaimed section 129

notice to Standard Bank.

[14]

4
That provision is set out in [23] below. In essence it requires a credit provider to notify a consumer who is in
default of her rights under the Act before commencing legal proceedings to enforce the relevant credit
agreement against that consumer.
5
This is a document, available from the Post Office, which indicates when a registered item arrives at a
particular branch of the Post Office for collection by the intended recipient. It also indicates whether the item
was collected or returned to the sender.

5
[15] Litigation history

[16] On 28 September 2010 Standard Bank issued summons against Mr

Kubyana for the cancellation of the instalment sale agreement, the return of

the motor vehicle and the payment of damages. Mr Kubyana filed a special

plea that the High Court had no jurisdiction to hear the matter because

Standard Bank had failed to comply with its obligations in terms of section

129 of the Act, as well as the terms of the instalment sale agreement, as his

account had not been in arrears when the notice was sent. He subsequently

averred that he did not receive the notice until he was served with the

summons.

[17]

[18] The matter proceeded to trial in the High Court before Ledwaba J. Mr

Kubyana was legally represented and the dispute was fully ventilated.

Standard Bank adduced evidence to establish that: Mr Kubyana’s account

was and had been in arrears; it had taken steps to bring this to his attention;

the section 129 notice had been sent via registered post to the address

nominated by Mr Kubyana in the instalment sale agreement; the notice had

reached the correct branch of the Post Office; and the notification from the

Post Office had been sent to Mr Kubyana’s address. Though present, Mr

Kubyana did not testify or provide an explanation for his failure to collect

the section 129 notice.

[19]

6
 [20] The High Court upheld Standard Bank’s claim, finding that it had no

obligation to use additional means to ensure that Mr Kubyana received the

section 129 notice.6 It concluded that Mr Kubyana had a duty to explain

why the notice did not reach him notwithstanding Standard Bank’s efforts,

and that his failure to do so had to count against him.7

[21]

[22] The Supreme Court of Appeal dismissed Mr Kubyana’s application for

leave to appeal against the decision of Ledwaba J. He now seeks leave to

appeal to this Court.

[23]

[24] Submissions in this Court

[25] In his papers Mr Kubyana set out various grounds of appeal, including a

claim that Standard Bank had breached section 106 of the Act 8 by

6
Standard Bank of South Africa Ltd v Kubyana [2012] ZAGPPHC 259 (High Court judgment) at paras 34-5.
7
Id at paras 31-2 and 34-5.
8
Subsections (4) and (5) thereof read as follows:
“(4)If the credit provider proposes to the consumer the purchase of a particular policy of credit
insurance as contemplated in subsection (1) or (3)—
(a) the consumer must be given, and be informed of, the right to waive that
proposed policy and substitute a policy of the consumer’s own choice,
subject to subsection (6);
(b) such policy must provide for payment of premiums by the consumer—
(i) on a monthly basis in the case of small and intermediate
agreements; or
(ii) on a monthly or annual basis in the case of large agreements, for
the duration of the credit agreement; and
(c) in the case of an annual premium the premium must be recovered from the
consumer within the applicable year.
(5) With respect to any policy of insurance arranged by a credit provider as contemplated
in subsection (4), the credit provider must―
(a) not add any surcharge, fee or additional premium above the actual cost of
insurance arranged by that credit provider;
(b) disclose to the consumer in the prescribed manner and form―

7
 impermissibly debiting his account with insurance premiums and an

allegation that the proceedings before the High Court were unfair and in

breach of section 34 of the Constitution. 9 After Mr Kubyana filed his papers

but before the hearing, the Socio-Economic Rights Institute of South Africa

(SERI) was admitted as a friend of the court (amicus curiae).10 The

Registrar of this Court was subsequently informed that counsel for SERI

would present oral argument on Mr Kubyana’s behalf, which he duly did.

During the hearing the contentions regarding section 34 of the Constitution

and section 106 of the Act were abandoned. Mr Kubyana’s case narrowed

considerably and he now asserts only two grounds of appeal.

[26] First, relying on this Court’s judgment in Sebola,11 Mr Kubyana

contends that, if there is evidence that a section 129 notice was sent by

registered post but was returned to the credit provider unclaimed, this shows

that there has not been proper delivery as required by the Act as it indicates

that the notice has not come to the attention of the consumer for whom it
(i) the cost to the consumer of any insurance supplied; and
(ii) the amount of any fee, commission, remuneration or benefit
receivable by the credit provider, in relation to that insurance;
(c) explain the terms and conditions of the insurance policy to the consumer and
provide the consumer with a copy of that policy; and
(d) be a loss payee under the policy up to the settlement value at the occurrence of an insured contingency
only and any remaining proceeds of the policy must be paid to the consumer.”
9
The section, entitled “Access to courts”, reads as follows:
“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair
public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”
10
SERI is a non-profit company. It provides socio-economic rights assistance to individuals, communities and
social movements in South Africa. It also has a history of engaging on issues concerning the Act. See, for
example, its contribution in Sebola below n 11 at paras 23, 47-8, 51 and 54.
11
Sebola and Another v Standard Bank of South Africa Ltd and Another [2012] ZACC 11; 2012 (5) SA 142
(CC); 2012 (8) BCLR 785 (CC) (Sebola).

8
 was intended.12 In that event, a court hearing the dispute must adjourn the

proceedings as contemplated in section 130(4)(b) of the Act 13 and cannot

grant judgment. In the circumstances of this case, Mr Kubyana contends

that the fact that the section 129 notice was returned to Standard Bank

uncollected constituted an indication contradicting the inference of proper

delivery. Judgment therefore ought not to have been granted in Standard

Bank’s favour. Second, Mr Kubyana relies on sections 8(3), 32(1)(b) and

39(2) of the Constitution14 (read with sections 129 and 130 of the Act) and

argues that he is entitled to information held by another person if that

information is required for the exercise or protection of his rights. He

submits that his constitutional right to receive information was infringed

12
In other words, such a return constitutes a “contrary indication” as envisaged in Sebola above n 11 at para 77.
I deal with this concept more fully in [49]-[53] below.
13
That provision is set out in full in [25] below. In essence it requires a court hearing an application for the
enforcement of a credit agreement to adjourn proceedings if a credit provider has failed to comply with
sections 127, 129 or 131 of the Act. The adjournment is granted to allow the credit provider time to rectify its
failure before it may enforce the debt.
14
Section 8(3) reads as follows:
“When applying a provision of the Bill of Rights to a natural or juristic person in terms of
subsection (2), a court—
(a)in order to give effect to a right in the Bill, must apply, or if necessary develop, the
common law to the extent that legislation does not give effect to that right; and
(b) may develop rules of the common law to limit the right, provided that the limitation
is in accordance with section 36(1).”
Section 32, entitled “Access to information”, reads as follows:
(1) Everyone has the right of access to—
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the
exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right, and may provide for
reasonable measures to alleviate the administrative and financial burden on the state.”
Section 39(2) reads as follows:
“When interpreting any legislation, and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

9
 when he did not receive delivery of the section 129 notice, as that notice

contained information necessary for the exercise of his rights under the Act.

[27] In response to Mr Kubyana’s first argument, Standard Bank argues that,

once it is proven that the section 129 notice was sent by registered mail to

the correct branch of the Post Office, the credit provider may credibly aver

receipt of the notice by the consumer. This satisfies the requirements of the

Act. The burden of rebuttal then shifts to the consumer to assert that the

notice did not reach her and to invite the court to make a finding in relation

thereto. To place additional requirements on the credit provider would

impose too onerous a burden and would afford consumers the undue

advantage of being able to ignore validly sent notices with impunity.

[28] Regarding Mr Kubyana’s access to information argument, Standard

Bank contends that his reliance on section 32(1)(b) of the Constitution is

misplaced because section 32(1)(b) is realised through the Promotion of

Access to Information Act.15 In the circumstances of this case he has no

cause of action under that statute, so the argument goes, because he made no

formal request for information in terms of PAIA and therefore never

engaged its protections. Moreover, Standard Bank contends that it regularly

kept Mr Kubyana informed of the state of his account and cannot be said to

have deprived him of relevant information.

[29]
15
2 of 2000 (PAIA).

10
 [30] SERI submits that, in the light of Sebola, the crucial question for

determination in a dispute such as the present one is whether, as a matter of

fact, the section 129 notice came to the attention of the consumer. Why it

may not have done so is irrelevant, for the Act does not require an enquiry

into subjective factors such as a consumer’s culpability for not receiving

notices. On the undisputed facts, SERI contends it is clear that the section

129 notice did not reach Mr Kubyana: it was never collected by him from

the Pretoria North Post Office and was returned to Standard Bank

unclaimed. Accordingly, there was no compliance with section 129 of the

Act. SERI contends that the High Court therefore ought to have adjourned

the trial and directed Standard Bank to take further steps to ensure that the

section 129 notice reached Mr Kubyana.

[31]

[32] Issues

[33] In this matter we are required to—

(a) determine whether leave to appeal should be granted;

(b) interpret section 129 of the Act and identify its requirements;

(c) clarify the meaning and implications of Sebola and its application to this

case; and

(d) determine an appropriate costs order.

[34]

11
[35] Leave to appeal

[36] It is by now trite that this Court will hear a matter that raises a

constitutional issue if the interests of justice so require. 16 As previously

explained, the interpretation of the Act’s notice provisions implicates

fundamental notions of equity in, and the transformation of, the credit

market. Such an interpretation is therefore inherently linked to the

constitutional objective of achieving substantive equality. 17 This matter thus

gives rise to a constitutional issue.

[37]

[38] This case concerns the proper interpretation of a statute that regulates

commercial activity undertaken by many people and institutions on a daily

basis. The issues at stake are therefore of fundamental importance to many

South Africans.18 Furthermore, this matter requires us to clarify the scope

and application of Sebola. As is apparent from the law reports, there are a

number of conflicting superior court decisions dealing with the meaning of

section 129 of the Act and the interpretation of that provision by this Court

in Sebola.19 It is imperative for purposes of certainty and the proper

functioning of the marketplace that we identify the rights and obligations of

16
See section 167(3)(b)(i) read with section 167(6) of the Constitution. See also AllPay Consolidated
Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency
and Others [2013] ZACC 42 at para 4 and Minister of Local Government, Environmental Affairs and
Development Planning of the Western Cape v Lagoonbay Lifestyle Estate (Pty) Ltd and Others [2013] ZACC 39
at para 22.
17
Sebola above n 11 at para 36.
18
Id at para 34.
19
ABSA Bank Ltd v Mkhize and Another; ABSA Bank Ltd v Chetty; ABSA Bank Ltd v Mlipha [2013] ZASCA
139; Balkind v ABSA Bank [2012] ZAECGHC 102; 2013 (2) SA 486 (ECG); ABSA Bank Ltd v Petersen [2012]
ZAWCHC 168; 2013 (1) SA 481 (WCC); ABSA Bank Ltd v Mkhize and Another and Two Similar Cases [2012]
ZAKZDHC 38; 2012 (5) SA 574 (KZD); and Nedbank Ltd v Binneman and Thirteen Similar Cases [2012]
ZAWCHC 141; 2012 (5) SA 569 (WCC).

12
 both credit providers and consumers under the Act and specifically under

section 129. In sum, this matter implicates constitutional issues that the

interests of justice require us to determine. Leave to appeal is therefore

granted.

[39]

[40] The interpretation of section 129 of the Act

[41] It is well established that statutes must be interpreted with due regard to

their purpose and within their context.20 This general principle is buttressed

by section 2(1) of the Act, which expressly requires a purposive approach to

the statute’s construction.21 Furthermore, legislation must be understood

holistically and, it goes without saying, interpreted within the relevant

framework of constitutional rights and norms. 22 However, that does not

mean that ordinary meaning and clear language may be discarded, for

interpretation is not divination and courts must respect the separation of

powers when construing Acts of Parliament.23

20
See Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another [2008] ZACC 12; 2009 (1) SA 337 (CC); 2008
(11) BCLR 1123 (CC) at para 61 and Mistry v Interim Medical and Dental Council of South Africa and Others
[1998] ZACC 10; 1998 (4) SA 1127 (CC); 1998 (7) BCLR 880 (CC) at paras 17-8.
21
Section 2(1) states that “[t]his Act must be interpreted in a manner that gives effect to the purposes set out in
section 3.” I set out those purposes in [19]-[21] below.
22
See generally Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15;
2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC).
23
In S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) Kentridge AJ, at
paras 17-8, stated:
“I am well aware of the fallacy of supposing that general language must have a single
‘objective’ meaning. Nor is it easy to avoid the influence of one’s personal intellectual and
moral preconceptions. But it cannot be too strongly stressed that the Constitution does not
mean whatever we might wish it to mean.
We must heed Lord Wilberforce’s reminder that even a constitution is a legal instrument, the
language of which must be respected. If the language used by the lawgiver is ignored in
favour of a general resort to ‘values’ the result is not interpretation but divination.”
While these remarks referred to constitutional interpretation, they apply even more forcefully in relation to
statutory interpretation generally. See also Investigating Directorate: Serious Economic Offences and Others v

13
 The historical context and purpose of the Act were set out in detail in Sebola.24

It suffices to emphasise the following points. The Act is a legislative effort

to regulate and improve relations between consumers and providers of

credit. The main purposes of the Act are “to promote and advance the social

and economic welfare of South Africans, promote a fair, transparent,

competitive, sustainable, responsible, efficient, effective and accessible

credit market and industry, and to protect consumers”.25

[42] There can be no doubt that the Act is directed at consumer protection. 26

However, this should not be taken to mean that the Act is relentlessly one-

sided and concerned with nothing more than devolving rights and benefits

on consumers without any regard for the interests of credit providers. No.

For just as the Act seeks to protect consumers, so too does it seek to promote

a competitive, sustainable, efficient and effective credit industry. This

objective is to be attained by promoting responsibility in the credit market; 27

“encouraging responsible borrowing [and the] fulfilment of financial

Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC) at paras 23-4 and 26.
24
Above n 11 at paras 38-42.
25
Section 3 of the Act.
26
In express terms section 3 states that the aforementioned purposes are to be achieved by developing a credit
market that is accessible to those for whom it has been historically inaccessible (section 3(a)), discouraging the
provision of reckless credit by credit providers (section 3(c)(ii)) and correcting prevailing disparities in
negotiating power between consumers and credit providers (section 3(e)). See Sebola above n 11 at
paras 38-40.
27
Section 3(c) of the Act.

14
 obligations by consumers”;28 discouraging contractual default;29 and

adhering to a debt-enforcement system that prioritises “the eventual

satisfaction of all responsible consumer obligations under credit

agreements.”30

[43]

[44] Thus, the promotion of equity in the credit market is to be achieved by

balancing the respective rights and responsibilities of credit providers and

consumers.31 It follows that the correct interpretation of section 129 is one

that strikes an appropriate balance between the competing interests of both

parties to a credit agreement.

[45]

[46] It is also fitting to have regard to section 129 in particular. 32 This section

sets out the procedures a credit provider must follow before enforcing a

debt. Its purpose is two-fold. First, it serves to ensure that the attention of

the consumer is sufficiently drawn to her default. Second, it enables the

consumer to be empowered with knowledge of the variety of options she

may utilise in order to remedy that default. 33 As explained in Sebola, the

aim of the provision is to facilitate the consensual resolution of credit

28
Id section 3(c)(i).
29
Id section 3(c)(ii).
30
Id section 3(i). See Sebola above n 11 at para 40.
31
Section 3(d) of the Act. See Sebola above n 11 at para 40.
32
The text of subsection (1) is set out in [23] below.
33
For example, seeking the assistance of a debt counsellor with a view to debt restructuring, or seeking recourse
to a consumer ombud for the non-litigious resolution of any dispute with the credit provider.

15
 agreement disputes.34 It is important to emphasise this consensuality – both

the credit provider and the consumer have responsibilities to bear if the

dispute is to be resolved without recourse to litigation.

[47]

[48] This exposition of the aims and objects of the Act will inform our

understanding of its particular provisions. However, interpretation is about

giving meaning to words, and it is therefore appropriate to commence the

interpretive exercise by considering the language of the statute. In this

matter we are primarily concerned with section 129 of the Act, which is

entitled “Required procedures before debt enforcement”. Subsection (1)

reads:

“If the consumer is in default under a credit agreement, the credit provider—
(a) may draw the default to the notice of the consumer in writing and propose
that the consumer refer the credit agreement to a debt counsellor, alternative
dispute resolution agent, consumer court or ombud with jurisdiction, with the
intent that the parties resolve any dispute under the agreement or develop and
agree on a plan to bring the payments under the agreement up to date; and
(b) subject to section 130(2), may not commence any legal proceedings to
enforce the agreement before—
(i) first providing notice to the consumer, as contemplated in
paragraph (a), or in section 86(10), as the case may be; and
(ii) meeting any further requirements set out in section 130.”
[49]

[50] Although subsection (1)(a) is framed in permissive language (“the credit

provider may”), subsection (1)(b) is expressed in peremptory terms: legal

34
Above n 11 at para 46. In support of this conclusion Cameron J relied on section 3(h) of the Act, which states
that one of the means of achieving the purposes of the Act is the provision of “ a consistent and accessible
system of consensual resolution of disputes arising from credit agreements”.

16
 proceedings for the enforcement of a credit agreement “may not commence”

until the section 129 notice has been provided to the consumer.35 Proper

dispatch of the section 129 notice is therefore essential for a credit provider

that wishes to enforce its rights against a defaulting consumer in the courts.36

In Sebola this Court held37 that section 129(1) must be read in conjunction with

the relevant provisions of section 130, which is entitled “Debt procedures in

a Court”. The relevant provisions of section 130 read:

“(1) Subject to subsection (2), a credit provider may approach the court for an
order to enforce a credit agreement only if, at that time, the consumer is in
default and has been in default under that credit agreement for at least
20 business days and—
(a) at least 10 business days have elapsed since the credit provider
delivered a notice to the consumer as contemplated in section 86(9),
or section 129(1), as the case may be;
(b) in the case of a notice contemplated in section 129(1), the consumer
has—
(i) not responded to that notice; or
(ii) responded to the notice by rejecting the credit provider’s
proposals; and
(c) in the case of an instalment agreement, secured loan, or lease, the
consumer has not surrendered the relevant property to the credit
provider as contemplated in section 127.
[51] ...

(3) Despite any provision of law or contract to the contrary, in any proceedings
commenced in a court in respect of a credit agreement to which this Act

35
See Sebola above n 11 at para 45.
36
Although this is subject to a proviso contained in section 130(2) of the Act, that proviso is not relevant for
purposes of this case.
37
Above n 11 at para 52.

17
 applies, the court may determine the matter only if the court is satisfied that
—
(a) in the case of proceedings to which sections 127, 129 or 131 apply,
the procedures required by those sections have been complied with;
....
(4) In any proceedings contemplated in this section, if the court determines that
—
...
(b) the credit provider has not complied with the relevant provisions of
this Act, as contemplated in subsection (3)(a) . . . the court must—
(i) adjourn the matter before it; and
(ii) make an appropriate order setting out the steps the credit
provider must complete before the matter may be resumed”.
[52]

[53] As explained in Sebola, section 129 prescribes what the credit provider

must do: indicate in writing to the relevant consumer that she is in default

and that she has certain statutory remedies available to her in order to satisfy

her outstanding debts without recourse to litigation. Section 130, on the

other hand, sets out how the credit provider must discharge this obligation:

deliver a written notice to the consumer as required by the statute. 38 The

crucial question is: what must a credit provider do in order to meet the

standard prescribed by the Act for the delivery of a section 129 notice?

[54]

[55] Unfortunately, the definition section and sections 129 and 130 are of

little assistance in giving content to this obligation, as they make no

prescriptions regarding the acceptable modes of delivery under the statute.

We must have regard to sections 65, 96 and 168, for it is only these three
38
Id at paras 55-6. At para 53 Cameron J concluded that “[s]ection 129 prescribes what a credit provider must
prove (notice as contemplated) before judgment can be obtained, while section 130 sets out how this can be
proved (by delivery).” (Emphasis in original.)

18
 provisions that deal with the delivery of documentation under the Act.

Section 65 is entitled “Right to receive documents”. Subsections (1) and (2)

state:

“(1) Every document that is required to be delivered to a consumer in terms of this

Act must be delivered in the prescribed manner, if any.
(2) If no method has been prescribed for the delivery of a particular document to
a consumer, the person required to deliver that document must—
(a) make the document available to the consumer through one or more of
the following mechanisms—
(i) in person at the business premises of the credit provider, or at
any other location designated by the consumer but at the
consumer’s expense, or by ordinary mail;
(ii) by fax;
(iii) by email; or
(iv) by printable web-page; and
(b) deliver it to the consumer in the manner chosen by the consumer
from the options made available in terms of paragraph (a).”39
[56]

[57] Section 96, entitled “Address for notice”, reads:

“(1) Whenever a party to a credit agreement is required or wishes to give legal

notice to the other party for any purpose contemplated in the agreement, this
Act or any other law, the party giving notice must deliver that notice to the
other party at—
(a) the address of that other party as set out in the agreement, unless
paragraph (b) applies; or
(b) the address most recently provided by the recipient in accordance
with subsection (2).
(2) A party to a credit agreement may change their address by delivering to the
other party a written notice of the new address by hand, registered mail, or

39
Section 65(1) does not assist us, for “prescribed” means “prescribed by regulation” and the regulations
promulgated under the Act are of no assistance with regard to the delivery of section 129 notices. See Sebola
above n 11 at para 62.

19
 electronic mail, if that other party has provided an email address.”
[58]

[59] Finally, section 168, entitled “Serving documents”, states the following:

“Unless otherwise provided in this Act, a notice, order or other document that, in
terms of this Act, must be served on a person will have been properly served when it
has been either—
(a) delivered to that person; or
(b) sent by registered mail to that person’s last known address.”
[60]

[61] Section 65 specifies that documents delivered under the Act must be

made available to the recipient through one or more of a number of

enumerated mechanisms. If the consumer has chosen a particular mode of

delivery from the enumerated options, the document must be delivered in

accordance with that election. Section 96 provides that legal notices must

be delivered to the address of the other party set out in the agreement or to

the address most recently provided by the recipient where she has given

written notice of a change in the address set out in the agreement. Finally,

section 168 specifies how notices, orders and other documents under the Act

are to be served where the method of delivery is not otherwise specified.

[62]

[63] These statutory provisions were comprehensively treated in Sebola40 and

I agree with what was stated there. For present purposes three features merit

emphasis. First, there is no general requirement that the notice be brought

to the consumer’s subjective attention by the credit provider, or that personal

40
Above n 11 at paras 62-72.

20
 service on the consumer is necessary for valid delivery under the Act. 41 I am

minded to agree with the High Court that, had the legislation meant either of

these aspects to be a necessary condition for delivery, express provision

would have been made for them.42 Thus, while the section 129 obligation on

the credit provider is to “draw the default to the notice of the consumer in

writing”, this obligation is discharged, in the words of section 65(2), by

“[making] the document available to the consumer”. This accords with

section 130(1)(b)(i), which provides that a credit provider may seek to

enforce its rights if a consumer has not responded to a section 129 notice.

While a credit provider must take certain steps to ensure that a consumer is

adequately informed of her rights, such a credit provider cannot be non-

suited or hamstrung if the consumer unreasonably fails to engage with or

make use of the information provided. In other words, it is the use of an

acceptable mode of delivery – the taking of certain steps to apprise the

consumer of the notice – which the statute requires of the credit provider,

not the bringing of the contents of the section 129 notice to the consumer’s

subjective attention.

[64]

[65] Second, one of the acceptable modes of delivery is by means of the

postal service:

“[W]here the notice is posted, mere despatch is not enough. This is because the risk
of non-delivery by ordinary mail is too great. Registered mail is in my view essential.
. . . But the mishap that afflicted the Sebolas’ notice shows that proof of registered
41
Id at para 74.
42
See the High Court judgment above n 6 at para 27.

21
 despatch by itself is not enough. The statute requires the credit provider to take
reasonable measures to bring the notice to the attention of the consumer . . . . This
will ordinarily mean that the credit provider must provide proof that the notice was
delivered to the correct post office.”43
[66]

[67] When a consumer has elected to receive notices by way of post, the credit

provider’s obligation to deliver thus ordinarily consists of (a) respecting the

consumer’s election; (b) undertaking the additional expense of sending notices by way

of registered rather than ordinary mail; and (c) ensuring that any notice is sent to the

correct branch of the Post Office for the consumer’s collection.

Third, the steps that a credit provider must take in order to effect delivery are

those that would bring the section 129 notice to the attention of a reasonable

consumer.44 This requirement is premised on the “especial importance” and

the “pivotal significance” of the notice45 as understood in the light of the

Act’s objectives regarding consumer protection. In order to give effect to

that importance and achieve those objectives, the Legislature has elected to

impose on credit providers obligations that would not otherwise arise.46

Indeed, if “delivery” is interpreted to mean that a reasonable consumer

would still not receive the section 129 notice, that interpretation would

undermine the Act’s “innovative entrenchment of court-avoidant and

43
Sebola above n 11 at para 75.
44
Id at paras 75 and 77.
45
Id at paras 70 and 73.
46
For example, the common law of contract does not prescribe that all notices sent in relation to an agreement,
in order to have been validly delivered, must be sent by way of registered mail. See Sebola above n 11 at
paras 82-3.

22
 settlement-friendly processes”47 and would only provide protection for

exceptional consumers. As the Court explained in Sebola, for there to have

been delivery under the Act it must be the case that―

“it may reasonably be assumed . . . that notification of [the] arrival [of the section 129
notice at the Post Office] reached the consumer and that a reasonable consumer
would have ensured retrieval of the item”.48
[68]

[69] I now consider the purpose of the section 129 notice and the obligations

of a reasonable consumer. Section 129 aims to establish a framework within

which the parties to the credit agreement, in circumstances where the

consumer has defaulted on her obligations, can come together and resolve

their dispute without expensive, acrimonious and time-consuming recourse

to the courts. However, this form of dispute resolution is possible only if

both parties come to the table: the credit provider must avoid hasty recourse

to litigation and the consumer must seek to rectify her default in a

reasonable and responsible manner.

[70]

[71] If the credit provider complies with the requirements set out in [31] to

[33] above and receives no response from the consumer within the period

designated by the Act, I fail to see what more can be expected of it.

Certainly, the Act imposes no further hurdles and the credit provider is

entitled to enforce its rights under the credit agreement. It deserves re-

47
Sebola above n 11 at para 72.
48
Id at para 77.

23
 emphasis that the purpose of the Act is not only to protect consumers, but

also to create a “harmonised system of debt restructuring, enforcement and

judgment, which places priority on the eventual satisfaction of all

responsible consumer obligations under credit agreements.”49 Indeed, if the

consumer has unreasonably failed to respond to the section 129 notice, she

will have eschewed reliance on the consensual dispute resolution

mechanisms provided for by the Act. She will not subsequently be entitled

to disrupt enforcement proceedings by claiming that the credit provider has

failed to discharge its statutory notice obligations.

[72]

[73] As set out earlier, even if the section 129 notice has been dispatched by

registered mail and the Post Office has delivered the notification to the

consumer’s designated address, valid delivery will not take place if the

notice would nevertheless not have come to the attention of a reasonable

consumer.50 But if the credit provider has complied with the requirements

set out above, it will be up to the consumer to show that the notice did not

come to her attention and the reasons why it did not.

[74] During the hearing counsel for Mr Kubyana asserted that the notion of

“the obligations of a reasonable consumer” has no basis in the Act. This

simply is not so. Its roots lie in section 3, which emphasises the importance

of “responsible borrowing”, the “fulfilment of financial obligations by

49
Section 3(i) of the Act. (Emphasis added.)
50
See Sebola above n 11 at para 77.

24
 consumers”, “discouraging . . . contractual default by consumers” and the

“satisfaction of all responsible consumer obligations”. It also draws from,

among other things, the notice provisions of the Act. In empowering a

consumer to decide on the manner in which she receives notices, sections

65(2) and 96 impose a corollary obligation on her to do what is necessary in

order to take receipt of those notices in accordance with the manner of

delivery she has chosen. Put simply, if the consumer has elected to receive

notices by way of registered mail, she must respond to notifications from the

Post Office requesting her to collect registered items unless, in the

circumstances, a reasonable person would not have responded.

[75]

[76] One of the main aims of the Act is to enable previously marginalised

people to enter the credit market and access much needed credit. Credit is

an invaluable tool in our economy. It must, however, be used wisely,

ethically and responsibly. Just as these obligations of ethical and

responsible behaviour apply to providers of credit, so too to consumers. It is

so that a credit provider will only have discharged its obligation to effect

delivery if the delivery would have resulted in the section 129 notice being

drawn to the attention of a reasonable consumer. However, it is also the

case that a consumer will not be entitled to rely on a credit provider’s

alleged non-compliance with section 129 if she has been unreasonably

remiss in failing to engage with the notice. The notion of a “reasonable

consumer” implies obligations for both credit providers and consumers.

25
[77]

[78] Conclusion: the obligation to deliver

[79] In sum, the Act does not require a credit provider to bring the contents

of a section 129 notice to the subjective attention of a consumer. Rather,

delivery consists of taking certain steps, prescribed by the Act, to apprise a

reasonable consumer of the notice. Thus, a credit provider’s obligation may

be to make the section 129 notice available to the consumer by having it

delivered to a designated address.51 When the consumer has elected to

receive notices by way of the postal service, the credit provider’s obligation

to deliver generally consists of dispatching the notice by registered mail, 52

ensuring that the notice reaches the correct branch of the Post Office for

collection53 and ensuring that the Post Office notifies the consumer (at her

designated address) that a registered item is awaiting her collection. 54 This

is subject to the narrow qualification that, if these steps would not have

drawn a reasonable consumer’s attention to the section 129 notice, delivery

will not have been effected. The ultimate question is whether delivery as

envisaged in the Act has been effected. In each case, this must be

determined by evidence.

[80] The interpretation of “delivery” set out in the preceding paragraph is

consonant with the statutory objectives of consumer protection and

51
Sections 65(2) and 96(1) of the Act.
52
Id section 168(b).
53
Sebola above n 11 at paras 75 and 77.
54
Id.

26
 consensual dispute resolution in that it imposes obligations on the credit

provider to ensure that the consumer is adequately informed of her statutory

rights to seek extra-curial assistance. It also reflects an appropriate

balancing of interests: while the obligation to deliver the section 129 notice

rests on the credit provider, if the consumer acts unreasonably the credit

provider may go ahead and seek enforcement of the credit agreement

notwithstanding the consumer’s failure to engage with the contents of the

notice.

[81]

[82] Sebola revisited: proof of delivery

[83] I now move on to consider what a credit provider must prove in order to

satisfy a court that it has discharged its obligation to effect delivery of a

section 129 notice to a consumer. It is appropriate to begin with a

discussion of this Court’s judgment in Sebola.

[84]

[85] Sebola concerned an application for the rescission of a default judgment.

Mr and Mrs Sebola concluded a home loan agreement with Standard Bank.

Approximately two years later they defaulted on their bond repayments.

Although Standard Bank dispatched a section 129 notice, it was sent to the

wrong branch of the Post Office. Standard Bank thereafter issued summons

against the couple for payment of the full outstanding amount due under the

mortgage bond. Subsequently, the Registrar of the High Court granted

27
 default judgment against Mr and Mrs Sebola. The Sebolas successfully

appealed to this Court.55

[86] The majority judgment held:

(e) The Act does not require proof that the section 129 notice came to the

subjective attention of the consumer.56 Instead, the Act requires the

credit provider to “make averments that will satisfy a court that the

notice probably reached the consumer”.57 Indeed, the Act must not be

interpreted so as to impose obligations that are “impossible to fulfil.”58

(f) When a consumer has elected to receive notifications through the postal

service, the credit provider must show that—

(i) the section 129 notice was sent by registered mail and delivered

to the correct branch of the Post Office, generally to be deduced

from a track and trace report;

(ii) the Post Office informed the consumer that a registered item was

available for collection;

(iii) the notification from the Post Office reached the consumer, which

may generally be inferred if the notification was sent to the

correct postal address (as designated by the consumer), unless

there is an indication to the contrary; and

55
Id at paras 4-10.
56
Id at para 74.
57
Id at para 75.
58
Id at para 57.

28
 (iv) a reasonable consumer would have ensured retrieval of the

registered item from the Post Office.59

[87]

[88] These principles are consistent with what has been set out above regarding the

nature of a credit provider’s obligation to deliver.

[89] However, the majority judgment in Sebola contains broad language

which could be misconstrued. Paragraph 79 of that judgment reads:

“If, in contested proceedings, the consumer asserts that the notice went astray after
reaching the post office, or was not collected, or not attended to once collected, the
court must make a finding whether, despite the credit provider’s proven efforts, the
consumer’s allegations are true, and, if so, adjourn the proceedings in terms of
section 130(4)(b).”

And at paragraph 87:

“If, in contested proceedings the consumer avers that the notice did not reach him or
her, the court must establish the truth of the claim. If it finds that the credit provider
has not complied with section 129(1), it must in terms of section 130(4)(b) adjourn
the matter and set out the steps the credit provider must take before the matter may be
resumed.”
[90]

[91] Sebola was not concerned with contested enforcement proceedings

during which judgment was granted against consumers – it related to the

Sebolas’ attempt to procure rescission of a default judgment. Neither was

there any suggestion of a failure by, or culpability on the part of, Mr and

59
Id at paras 77 and 87.

29
 Mrs Sebola. The judgment was therefore not concerned with a situation

where the notice had been validly delivered by the credit provider, but then

remained uncollected, or unattended to, by the consumers. The statements

quoted above were unnecessarily broad. To the extent that the judgment

implies that a credit provider will not have discharged its obligation to effect

delivery because a consumer unreasonably fails to collect or attend to a

properly dispatched section 129 notice, it misstated the law. This is

apparent from the excursus of the Act set out above, that (a) a credit

provider is under no obligation to bring a section 129 notice to the

subjective attention of a consumer and (b) a consumer must respond

reasonably when a credit provider has properly sought to bring such a notice

to her attention. In a similar vein, and in addition to acknowledging the

importance of a consumer’s obligation to act reasonably, 60 the majority

judgment stated the following:

“[T]he statute does not demand that the credit provider prove that the notice has
actually come to the attention of the consumer, since that would ordinarily be
impossible.”61

[92] The Act does not imply, and cannot be interpreted to mean, that a

consumer may unreasonably ignore the consequences of her election to

receive notices by registered mail, when the notifications in question have

been sent to the address which she duly nominated. While it is so that

60
Id at para 77.
61
Id at para 74.

30
 consumers should receive the full benefit of the protections afforded by the

Act, the noble pursuits of that statute should not be open to abuse by

individuals who seek to exercise those protections unreasonably or in bad

faith.

[93]

[94] Similarly to paragraphs 79 and 87 of Sebola, paragraph 74 indicates that

there is an obligation on the credit provider to prove that the section 129

notice “in fact reached the consumer”. This statement must be understood

in the light of Sebola’s attempt to prescribe a method of fact determination

for courts faced with applications for default judgment and to indicate which

factual inferences may be drawn in a situation where factual sources are few.

However, as shown, any notion that the Act requires a credit provider to

ensure that, as a matter of fact, the section 129 notice definitely reached the

consumer is misconceived.

[95] It is so that section 96(1) requires that notices be delivered “at the

address” provided by the recipient. However, this requirement must be

understood with due regard to the practical aspects of dispatching a notice

by way of registered mail. When a credit provider dispatches a notice in

that manner, the notice is sent to a particular branch of the Post Office. That

branch then sends a notification to the consumer, indicating that a registered

item is available for collection. It is never the case that an item dispatched

by registered mail will physically be delivered to an individual – such

31
 delivery only occurs if the item is sent by ordinary mail, which does not

suffice for purposes of sections 129 and 130 of the Act. 62 If a consumer

elects not to respond to the notification from the Post Office, despite the fact

that she is able to do so, it does not lie in her mouth to claim that the credit

provider has failed to discharge its statutory obligation to effect delivery.

[96]

[97] Clarification of the phrase “contrary indication”

[98] A final aspect of Sebola requires clarification. Much was made by

counsel of the notion of a “contrary indication”:

“The credit provider’s summons or particulars of claim should allege that the
[section 129] notice was delivered to the relevant post office and that the post office
would, in the normal course, have secured delivery of a registered item notification
slip, informing the consumer that a registered article was available for collection.
Coupled with proof that the notice was delivered to the correct post office, it may
reasonably be assumed in the absence of contrary indication, and the credit provider
may credibly aver, that notification of its arrival reached the consumer and that a
reasonable consumer would have ensured retrieval of the item from the post office.” 63
(Emphasis added).
[99]

[100] Mr Kubyana avers that as soon as there is a “contrary indication”

showing, as a matter of fact, that the section 129 notice did not come to the

subjective attention of the consumer, that suffices to show that the

requirements of section 129 have not been met. Moreover, he contends that

when a section 129 notice is returned to the credit provider uncollected,

notwithstanding the fact that it was sent to the correct branch of the Post
62
Id at para 68.
63
Id at para 77. See also para 87.

32
 Office and the fact that the Post Office sent a notification to the consumer’s

address that a registered item was awaiting collection, such a return

constitutes a “contrary indication”.

[101]

[102] This argument cannot be sustained. It is premised on the notion that a

credit provider is under an obligation to bring a section 129 notice to the

subjective attention of the consumer, which is not the case. It fails to

appreciate that, if the purpose of consensual dispute resolution is to be

achieved, a consumer must act responsibly when notified of her default –

the credit provider does not bear sole responsibility for ensuring that the

objective underlying section 129 is achieved. And it does not account for

the responsibilities of a reasonable consumer: the Act does not allow a

consumer to ignore, or unreasonably fail to respond to, notifications from

the Post Office and thereby stave off enforcement proceedings by a credit

provider.

[103]

[104] Mr Kubyana’s argument is also based on a misreading of Sebola. The

“contrary indication” requirement applies to two inferences that a court may

make: the inference that the notification from the Post Office (indicating that

a registered item is available for collection) reached the consumer and the

inference that a reasonable consumer would have responded to that

notification and retrieved the notice. The first inference is based on the

reasonable assumption that when a credit provider has dispatched a notice

33
 by means of registered post, has specified the correct address for the

consumer and has ensured that the notice is delivered to the correct branch

of the Post Office, the notification calling on the consumer to collect a

registered item will be delivered to her address. A contrary indication would

be a factor showing that, in the circumstances and despite the credit

provider’s efforts, the notification did not reach the consumer’s designated

address. The second inference is based on the assumption that a consumer

acting reasonably would, having received the notification from the Post

Office to retrieve a registered item, proceed to collect the notice. In these

circumstances a contrary indication would be a factor showing that the

consumer acted reasonably in failing to collect or attend to the notice,

despite the delivery of the notification to her address.

Once a credit provider has produced the track and trace report indicating that

the section 129 notice was sent to the correct branch of the Post Office and

has shown that a notification was sent to the consumer by the Post Office,

that credit provider will generally have shown that it has discharged its

obligations under the Act to effect delivery. The credit provider is at that

stage entitled to aver that it has done what is necessary to ensure that the

notice reached the consumer. It then falls to the consumer to explain why it

is not reasonable to expect the notice to have reached her attention if she

wishes to escape the consequences of that notice. And it makes sense for

the consumer to bear this burden of rebutting the inference of delivery, for

34
 the information regarding the reasonableness of her conduct generally lies

solely within her knowledge. In the absence of such an explanation the

credit provider’s averment will stand. Put differently, even if there is

evidence indicating that the section 129 notice did not reach the consumer’s

attention, that will not amount to an indication disproving delivery if the

reason for non-receipt is the consumer’s unreasonable behaviour.

[105]

[106] Conclusion: proof of delivery of a section 129 notice

[107] The Act prescribes obligations that credit providers must discharge in

order to bring section 129 notices to the attention of consumers. When

delivery occurs through the postal service, proof that these obligations have

been discharged entails proof that—

(g) the section 129 notice was sent via registered mail and was sent to the

correct branch of the Post Office, in accordance with the postal address

nominated by the consumer. This may be deduced from a track and

trace report and the terms of the relevant credit agreement;

(h) the Post Office issued a notification to the consumer that a registered

item was available for her collection;

(i) the Post Office’s notification reached the consumer. This may be

inferred from the fact that the Post Office sent the notification to the

consumer’s correct postal address, which inference may be rebutted by

an indication to the contrary as set out in [52] above; and

35
 (j) a reasonable consumer would have collected the section 129 notice and

engaged with its contents. This may be inferred if the credit provider

has proven (a)-(c), which inference may, again, be rebutted by a contrary

indication: an explanation of why, in the circumstances, the notice would

not have come to the attention of a reasonable consumer.

[108]

[109] Did Standard Bank comply with section 129 of the Act?

[110] We are presently concerned with contested proceedings where the

dispute was fully ventilated at trial. All the relevant information on which

the parties elected to rely was placed before the High Court. From that

information it is apparent that Standard Bank sent the section 129 notice via

registered mail to the branch of the Post Office nominated by Mr Kubyana,

and the Post Office sent two notifications to Mr Kubyana’s designated

address indicating that a registered item was awaiting his collection. There

was and remains no denial that he received the notifications. In the absence

of any explanation from him, we may therefore reasonably assume that the

notifications from the Post Office reached his attention. Mr Kubyana’s case

is only that he did not collect the section 129 notice. He did not give

evidence at trial to substantiate this assertion.

[111] It is sufficient to bring the section 129 notice to a consumer’s attention

for that consumer to have agreed to receive the notice by way of registered

mail and then to receive a notification that a registered item is awaiting her

36
 attention. This is the case unless a reasonable consumer would not, in the

circumstances, have taken receipt of the notice.

[112] But this defence cannot avail Mr Kubyana, for he elected neither to

testify nor to provide an explanation for why he did not respond to the

notifications from the Post Office. That being the case, there is no basis

upon which we can determine that, notwithstanding Standard Bank’s efforts,

it was reasonable for Mr Kubyana not to have taken receipt of the section

129 notice. And it must be remembered that the defence is a narrow one: it

would apply only if Mr Kubyana were able to prove that, despite the credit

provider’s attempts at delivery, a reasonable consumer in his position would

not have collected the notice or responded to it. In the result, Standard Bank

did all that was required of it by the Act. To hold it to a higher standard

would be to impose an excessively onerous standard of performance.

[113] Standard Bank has thus complied with the requirements contained in

section 129 of the Act. It was entitled to commence legal proceedings and

to enforce its claims under the instalment sale agreement when it did. There

is therefore no basis to interfere with the order of the High Court.

[114]

[115] The access to information argument

[116] This argument, too, must fail. Even if we accept that section 32 of the

Constitution is of application in this case, for the reasons set out above there

37
 is nothing before us to indicate that Standard Bank did not do what was

required by law in order to provide Mr Kubyana with information regarding

his default and his statutory rights. The appeal therefore fails.

[117]

[118] Costs

[119] At the hearing counsel for Standard Bank, when pressed by the Bench,

agreed to leave the question of costs in the hands of the Court. Mr Kubyana

has not been successful in this Court. I am also mindful of the fact that at

least some of the grounds on which he sought to appeal the High Court’s

decision were spurious.64 That being said, this judgment represents a

clarification of the law which is important not only to consumers but also to

providers of credit, including Standard Bank. I therefore consider it just and

equitable to make no order as to costs.

[120] Order

[121] The following order is made:

1. Leave to appeal is granted.

2. The appeal is dismissed.

3. There is no order as to costs.

[122]

64
I have in mind the allegation that his trial was unfair, which, from the record, appears to be wholly unfounded
and completely opportunistic.

38
JAFTA J (Moseneke ACJ, Cameron J, Dambuza AJ, Madlanga J, Nkabinde J,

Van der Westhuizen J and Zondo J concurring):

[123] I have read the judgment prepared by my Colleague Mhlantla AJ (main

judgment). While I agree with much of what it says and the order proposed,

I have decided to write separately on the interpretation of section 129(1) of

the Act and provide further clarification on the judgment of this Court in

Sebola.65

[124]

[125] It has become necessary for this Court to clarify its judgment in Sebola

due to the confusion that has ensued as a result of conflicting interpretations

of the Sebola judgment by various courts.66 In Binneman, the Western Cape

High Court held that Sebola has not changed the legal position proclaimed

by the Supreme Court of Appeal in Rossouw.67 In that case the Supreme

Court of Appeal had held that the delivery requirement envisaged in section

129(1) would be satisfied if the credit provider dispatched the notice by

registered mail to the consumer.68

[126]
65
Sebola and Another v Standard Bank of South Africa Ltd and Another [2012] ZACC 11; 2012 (5) SA 142
(CC); 2012 (8) BCLR 785 (CC) (Sebola).
66
Nedbank Ltd v Binneman and Thirteen Similar Cases [2012] ZAWCHC 121; 2012 (5) SA 569 (WCC); ABSA
Bank Ltd v Mkhize and Another and Two Similar Cases [2012] ZAKZDHC 38; 2012 (5) SA 574 (KZD)
(Mkhize); and Balkind v ABSA Bank, In re ABSA Bank Ltd v Ilifu Trading 172 CC and Others [2012]
ZAECGHC 102; 2013 (2) SA 486 (ECG).
67
Rossouw and Another v First Rand Bank Ltd t/a FNB Homeloans (Formerly First Rand Bank of South Africa
Ltd) [2010] ZASCA 130; 2010 (6) SA 439 (SCA) (Rossouw).
68
Id at para 32.

39
 [127] But the KwaZulu-Natal High Court in Mkhize came to the opposite

conclusion.69 The Court held that Sebola had overruled Rossouw in that it

considered the dispatch of the notice by registered mail to be insufficient

proof of delivery. Instead, Sebola required that a further step, namely, that

the registered mail reached the correct local Post Office of the consumer, be

established.

[128]

[129] In Balkind, the Eastern Cape High Court agreed that Sebola altered the

position stated in Rossouw. In Balkind the High Court said:

“Effectively, Sebola held that dispatch of the notice by registered post is not enough;
more is required. It concluded that proof by means of the post office ‘track and trace’
report that the registered post reached the correct post office, would constitute proper
delivery of the notice to the consumer as contemplated by section 129.” 70
[130]

[131] Before determining which of the interpretations given to Sebola is

correct, I must consider the relevant provisions. Section 129(1) provides:

“If the consumer is in default under a credit agreement, the credit provider—
(a) may draw the default to the notice of the consumer in writing and propose
that the consumer refer the credit agreement to a debt counsellor, alternative
dispute resolution agent, consumer court or ombud with jurisdiction, with the
intent that the parties resolve any dispute under the agreement or develop and
agree on a plan to bring the payments under the agreement up to date; and
(b) subject to section 130(2), may not commence any legal proceedings to
enforce the agreement before—
(i) first providing notice to the consumer, as contemplated in
paragraph (a), or in section 86(10), as the case may be; and
69
Mkhize above n 66 at para 50.
70
Balkind above n 66 at para 12.

40
 (ii) meeting any further requirements set out in section 130.”
[132]

[133] The text of this section reveals that in the event of the consumer being in

default of her repayments of the loan, the credit provider is obliged to draw

the default to the attention of the consumer. The section prescribes that the

notice given to the consumer must be in writing. It further stipulates what

the notice must contain. The notice must propose the options available to

the consumer who is in financial distress and unable to purge the default. It

must point out that, at the election of the consumer, the credit agreement

may be referred to a debt counsellor, dispute resolution agent, consumer

court or ombud. The purpose of the referral must also be stated in the

notice.

[134]

[135] The purpose of the referral is to resolve whatever disputes may have

arisen from the credit agreement and also to agree on a plan to cure the

default and bring the payments up to date. Furthermore, the section makes

reference to section 130 which governs the institution of litigation for

enforcing credit agreements. Section 129(1) lays down two conditions

which must be met before the credit provider may institute litigation. In

peremptory terms, the section declares that legal proceedings to enforce the

agreement may not commence before—

(a) first providing notice to the consumer; and

(b) meeting further requirements set out in section 130.

[136]

41
 [137] The reference to section 130 divulges a strong link between the two

sections, hence they are required to be read together for a proper

understanding of their scheme. As I see it, the application of these sections

is triggered by the consumer’s failure to repay the loan. These sections

suspend the credit provider’s rights under the credit agreement until certain

steps have been taken.

[138]

[139] The credit provider is not entitled immediately to exercise its rights

under the agreement. It is first required to notify the consumer of the

default and demand that the arrears be paid. If the consumer pays up the

arrears, then the dispute is settled. But it may so happen that the default is

occasioned by the consumer’s financial difficulties. In that event, instead of

enforcing the agreement, the credit provider must afford the consumer an

opportunity to refer the agreement to one of the bodies listed in section

129(1)(a).

[140]

[141] The opportunity for referral is a prelude to litigation. If the consumer

makes use of this opportunity, the dispute relating to the default and the

credit agreement are submitted to a debt counsellor, if the consumer so

chooses. The debt counsellor helps the parties to reach agreement on how

the loan would be repaid and the arrears cleared. This may be achieved by

re-arranging the terms of the credit agreement. If this happens, the credit

42
 provider loses the right to enforce the original credit agreement arising from

the consumer’s default.

[142]

[143] However, in many cases, as is the position here, consumers do not take

up the opportunity to refer the dispute. Once that happens, the credit

provider becomes free to enforce the credit agreement in the ordinary courts.

But the credit provider’s enforcement of the agreement is subject to

conditions stipulated in sections 129 and 130. Section 130(1) provides:

“Subject to subsection (2), a credit provider may approach the court for an order to
enforce a credit agreement only if, at that time, the consumer is in default and has
been in default under that credit agreement for at least 20 business days and—
(a) at least 10 business days have elapsed since the credit provider delivered a
notice to the consumer as contemplated in section 86(9), or section 129(1), as
the case may be;
(b) in the case of a notice contemplated in section 129(1), the consumer has—
(i) not responded to that notice; or
(ii) responded to the notice by rejecting the credit provider’s proposals;
and
(c) in the case of an instalment agreement, secured loan, or lease, the consumer
has not surrendered the relevant property to the credit provider as
contemplated in section 127.”
[144]

[145] It is apparent from the language of section 130(1) that a credit

agreement to which the Act applies may be enforced only if the

requirements laid down in that section are met. This is irrespective of any

stipulation to the contrary in the agreement itself or another law. 71 When a

credit provider seeks to enforce the agreement by means of litigation, it

71
Section 130(3), the text of which is quoted in [84] below.

43
 must first show compliance with section 130, which, by extension, refers

back to section 129.

[146]

[147] The first requirement is that the consumer has been in default for at least

20 business days. Furthermore, a minimum of 10 business days from the

date of delivery of the notice to the consumer must have lapsed. And the

consumer must have failed to respond to the notice within the period of 10

business days or responded by rejecting the credit provider’s proposals. In

the case of a lease, secured loan or an instalment agreement, the additional

requirement is that the consumer must have failed to surrender the relevant

property to the credit provider.

[148]

[149] Delivery of the notice is one of the requirements of section 130. The

date on which the delivery has occurred is crucial to the calculation of the

10 business days within which the consumer is expected to respond. In this

regard, therefore, the meaning of the words “delivered a notice to the

consumer” is critical to the application of the section. The Act does not

define the word “delivered”. Consequently, it must be given its ordinary

meaning.

[150]

[151] The Concise Oxford English Dictionary states that “deliver” means

“bring and hand over (a letter or goods); provide something (promised or

expected); launch or aim (a blow or attack); state or present in a formal

44
 manner; assist in the birth of; and save or set free”. Of the various

meanings, it seems to me that only the first one is relevant to the context in

which the word is used in section 130.

[152]

[153] It is a fundamental principle of interpretation that words used in a statute

or written document must be construed in their proper context. 72 In Bato

Star this Court held that “the technique of paying attention to context in

statutory construction is now required by the Constitution.” 73 The Court

said:

“It is no doubt true that it is a primary rule of statutory construction that words in a
statute must be given their ordinary grammatical meaning. But it is also a
well-known rule of construction that words in a statute should be construed in the
light of their context.”74
[154]

[155] The process of interpretation, I emphasise, does not involve a

consideration of facts. Matters of evidence do not come into the equation.

This is so because statutory construction is an objective process, with no

link to any set of facts but in terms of which words used in a statute are

given a general meaning that applies to all cases, falling within the ambit of

the statute.75

72
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490
(CC); 2004 (7) BCLR 687 (CC) (Bato Star).
73
Id at para 91.
74
Id at para 89.
75
CA Focus CC v Village Freezer t/a Ashmel Spar [2013] ZASCA 136; 2013 (6) SA 549 (SCA) at para 18 and
Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) at
para 18.

45
[156]

[157] The word “deliver” is commonly used in our law, particularly in the

field of contracts and service of court process. In its common sense, deliver

means bringing or taking something to a recipient. For example, if a

contract of sale requires the seller to deliver a motor vehicle to the

purchaser, it is construed to mean that the seller has to take the vehicle to the

purchaser. For delivery to take place, it does not follow that the vehicle

must have been handed over to the purchaser in person. 76 Depending on the

circumstances of the case, taking the vehicle to the purchaser’s address may

constitute delivery. But the actual taking of the vehicle would constitute

factual proof of what was done. And this is a matter of evidence and not

interpretation.

[158]

[159] It seems to me that in the context of section 130(1) read with section

129(1), delivered means taking a notice to the consumer. As long as steps

taken show on a balance of probabilities that the notice is likely to have

reached the consumer, the court before which the proceedings are brought

may be satisfied that the notice was delivered.

[160]

[161] In delivering the notice, the credit provider may follow any method.

This is so because sections 130(1) and 129(1) do not specify a particular

method of delivery. All that they require is that the notice be delivered. If a

76
However, what is said about delivery here is limited to matters where sections 129 and 130 of the Act apply.
It does not change or affect the methods of delivery known in the common law.

46
 particular method is chosen, whatever is done must constitute adequate

proof that the notice has reached the consumer. If, for example, the credit

provider has chosen to send the notice by ordinary post, proof of the letter

reaching the consumer’s address would ordinarily constitute delivery

contemplated in the relevant sections. These facts would give rise to the

presumption that the notice reached the consumer. This type of presumption

is recognised in our law.77

[162]

[163] But if, in defending the action instituted by the credit provider, the

consumer establishes that at the relevant time she was lying unconscious in

hospital, the credit provider would have failed to prove delivery and

therefore the court would not be satisfied that the notice reached the

consumer. Absent an explanation of that nature, the court may be satisfied,

on a balance of probabilities, that the notice reached the consumer. But, as

mentioned earlier, the enquiry here would be directed at establishing proof

of delivery and not the meaning of the word.

[164]

[165] In the case of registered mail, the delivery of the notice to the

consumer’s local Post Office, coupled with sending notification to her

address, may in appropriate cases be regarded as constituting compliance

with the delivery requirement. A consumer who receives notification from

the local Post Office but decides not to collect the notice should not be

permitted to frustrate the purpose of the provisions while, at the same time,
77
Phillips v South African Reserve Bank and Others [2012] ZASCA 38; 2013 (6) SA 450 (SCA) at para 48.

47
 the credit provider is precluded from enforcing its rights under the contract.

In such a case, a court may as well hold that there was a fictional fulfilment

of the requirement. Our courts are familiar with this concept which applies

where, for example, a party to a contract deliberately frustrates the

fulfilment of a condition, so that the other party cannot enforce its rights.78

[166]

[167] It is apparent from section 130(3) that it is the court before which the

proceedings are instituted which must be satisfied that, among other matters,

the notice has reached the consumer. Section 130(3) provides:

“Despite any provision of law or contract to the contrary, in any proceedings

commenced in a court in respect of a credit agreement to which this Act applies, the
court may determine the matter only if the court is satisfied that—
(a) in the case of proceedings to which sections 127, 129 or 131 apply, the
procedures required by those sections have been complied with”.
[168]

[169] If the court is not satisfied that the section 129 notice was delivered to

the consumer, it is obliged to adjourn the proceedings and specify steps to

be taken by the credit provider before resuming the hearing of the matter. 79

This illustrates that enforcement of the credit agreement through litigation is

suspended for as long as the credit provider has not complied with the

requirements of the relevant sections.

[170]

78
Balkind above n 66 at para 48 and Old Mutual Life Assurance Co SA Ltd v Gumbi [2007] ZASCA 52; 2007 (5)
SA 552 (SCA) at para 16.
79
See section 130(4) quoted in the main judgment at [25].

48
[171] Present facts

[172] The facts are set out in detail in the main judgment. On 16 July 2010

Standard Bank sent a section 129 notice by registered mail to Mr Kubyana.

The notice reached his local Post Office which, in turn, sent out a

notification to the address nominated by him as his domicilium. The first

notification was sent to his address on 20 July 2010 but he failed to collect

the registered mail. Seven days later, a second notification was dispatched

to his address. Again he failed to collect the mail. On 1 September 2010 the

notice was returned to the Bank.

[173]

[174] Mr Kubyana did not contest the correctness of these facts by way of

evidence in the High Court. That Court approached the matter on the

footing that Mr Kubyana received notification of the registered mail but

failed to collect it. The Court held that there was compliance with the

relevant provisions.

[175]

[176] Mr Kubyana’s failure to testify and explain why he did not collect the

notice drives one to the inescapable conclusion that he deliberately failed to

collect it. He cannot be allowed to frustrate the objects of the Act. The

relevant provisions were enacted to protect honest consumers who, for some

reason, find themselves in dire financial straits. As indicated earlier, the

object of the relevant provisions is not to exempt consumers from their

49
 contractual obligations but to afford them the opportunity to renegotiate the

terms of the credit agreement in relation to payment of the debt.

[177]

[178] A balance must be struck between the rights of the consumer and those

of the credit provider when applying sections 129 and 130. The offer of

credit is crucial to the economy of this country. Without it the majority of

people would not afford to buy houses and other assets necessary to human

life. Therefore, the collapse of the system would be detrimental to the

country’s economy and the majority of its people.

[179]

[180] In these circumstances, I agree that the appeal must fail.

[181]

[182] The judgment in Sebola

[183] As mentioned, conflicting interpretations have been given to the

judgment of this Court in Sebola. As a result, uncertainty has been created

as to what section 129 means and what it requires credit providers to do to

comply, if they wish to enforce credit agreements by legal proceedings. As

observed in the main judgment, this case presents an opportunity for this

Court to clarify its judgment in Sebola. In doing so it is necessary to draw a

distinction between interpretation, on the one hand, and evidential material

to prove compliance with the section, on the other.

[184]

50
[185] The meaning of section 129 as construed in Sebola

[186] This Court in Sebola read section 129(1) together with section 130(1).

In section 130 the word “delivered” is used and this section refers back to

section 129 which employs the words “providing notice to the consumer”.

While section 130 requires that a notice must be delivered to the consumer,

section 129 stipulates that the consumer be provided with a notice. The

common object of these sections is to prevent the commencement of legal

proceedings before the steps defined in section 129 have been taken.

[187]

[188] It was in this context that this Court construed section 129 to mean that

the credit provider must furnish the consumer with a notice. A perusal of a

number of paragraphs suggests that Sebola interpreted section 129 to mean

that the notice should reach the consumer and not that it actually came to her

attention. A reference to two paragraphs illustrates this point.

[189]

[190] In one paragraph, the majority said:

“These considerations drive me to conclude that the meaning of ‘deliver’ in

section 130 cannot be extracted by parsing the words of the statute. It must be found
in a broader approach – by determining what a credit provider should be required to
establish, on seeking enforcement of a credit agreement, by way of proof that the
section 129 notice in fact reached the consumer. As pointed out earlier, the statute
does not demand that the credit provider prove that the notice has actually come to
the attention of the consumer, since that would ordinarily be impossible. Nor does it
demand proof of delivery to an actual address. But given the high significance of the
section 129 notice, it seems to me that the credit provider must make averments that

51
 will satisfy the court from which enforcement is sought that the notice, on balance of
probabilities, reached the consumer.”80 (Emphasis added.)
[191]

[192] And later the majority summed up its interpretation in these terms:

“To sum up: The requirement that a credit provider provide notice in terms of
section 129(1)(a) to the consumer must be understood in conjunction with
section 130, which requires delivery of the notice. The statute, though giving no
clear meaning to ‘deliver’, requires that the credit provider seeking to enforce a
credit agreement aver and prove that the notice was delivered to the consumer.
Where the credit provider posts the notice, proof of registered despatch to the address
of the consumer, together with proof that the notice reached the appropriate post
office for delivery to the consumer, will in the absence of contrary indication
constitute sufficient proof of delivery. If, in contested proceedings the consumer
avers that the notice did not reach him or her, the court must establish the truth of the
claim. If it finds that the credit provider has not complied with section 129(1), it must
in terms of section 130(4)(b) adjourn the matter and set out the steps the credit
provider must take before the matter may be resumed.”81 (Emphasis added.)
[193]

[194] As shown earlier, the dispatching of a notice by registered mail, and

showing that it has reached the correct Post Office, are facts which do not

form part of the interpretation. As facts, ordinarily they are peculiar to

certain cases and not universal to all cases in which the Act finds

application. But the interpretation is universal. The section carries the same

meaning in all cases.

[195]

[196] Therefore, the ratio of Sebola, as I see it, is that the words “providing

notice to the consumer” are synonymous with the phrase “delivered a notice
80
Sebola above n 65 at para 74.
81
Id at para 87.

52
 to the consumer”, which appears in section 130. Both of them mean that the

notice must be taken to the consumer. It must reach the consumer but this

does not mean that the notice must actually be viewed by the consumer.

[197]

[198] Proof of delivery

[199] The determination of the facts that would constitute adequate proof of

delivery of a notice in a particular case must be left to the court before

which the proceedings are launched. It is that court which must be satisfied

that section 129 has been followed. Therefore, it is not prudent to lay down

a general principle save to state that a credit provider must place before the

court facts which show that the notice, on a balance of probabilities, has

reached a consumer. This is what Sebola must be understood to state. It

follows that the interpretation of Sebola in Binneman was incorrect.

[200]

[201] While it is true that in the quoted paragraphs the majority went to the

extent of saying that, where delivery is by registered mail, proof of the fact

that the notice reached the correct Post Office would constitute compliance,

that is not part of the ratio. The facts in Sebola were different in that the

notice was sent to the wrong Post Office. Consequently, it was not

necessary for this Court to determine whether in circumstances where the

notice has reached the correct Post Office, nothing more needs be proved to

show that, on a balance of probabilities, the notice has reached the

consumer. The view expressed there was obiter. What is binding in Sebola

53
 is the interpretation given to section 129. That interpretation is endorsed in

this judgment.

[202]

[203] It is for these reasons that I concur in the order proposed by the main

judgment.

54
For the Applicant: Advocate S Wilson instructed by
Tswago Inc Attorneys.

For the Respondent: Advocate S Budlender and Advocate J

Ferreira instructed by Norton Rose
Fulbright South Africa.

For the Amicus Curiae: Advocate S Wilson instructed by SERI-

SA Law Clinic.