The National Credit Act of 2005 changed the financing landscape quite dramatically – credit suppliers are now required to act with a modicum of responsibility, and treat their victims, sorry, customers, with an iota of respect. 
Section 129 of the Act is an important provision, because it says that before a credit supplier sues a customer who has failed to make payments, it must first send a notice proposing that the matter be referred to a debt counsellor, or the like, in order to agree on a plan to bring the payments up to date. Only if the customer fails to respond within ten days, can the credit supplier sue. Section 129 is, no doubt, a pain in the butt for big moneylenders like banks.
In 2006, two sisters, Zelda de Villiers (50), a teacher from Durbanville, and Ronelle Miller (46), a secretary from Brackenfell, bought a property in the Stellenbosch area as an investment. They paid R171,000 for a plot, with the idea that they would build a house and let it. They took out a Nedbank “building loan”, secured by a mortgage bond, and, because the house was finally completed in 2008, the first payment only became due on 1 September 2008. In the mortgage contract the sisters gave the address of the property as the address to which all notices and legal processes should be sent – the so called domicilium citandi et executandi.
Zelda and Ronelle missed the first few payments, apparently because the tenant was refusing to pay. When that problem was resolved they started making payments to Nedbank but, in July 2009, the tenant again defaulted. The sisters made some enquiries and found to their horror that the house had been sold, and that the rental had been paid to the new owner. How could this be?
It turned out that on 17 February 2009 Nedbank had issued a summons against the sisters, claiming
repayment of the full amount of the loan of R445,000 and the right to sell the property, based on the missed payments. Attached to the summons was an affidavit signed by a “manager” of Nedbank, one Lutchmana Pillay, in which he said that one of his duties was looking after the affairs of Zelda and Ronelle in terms of the home loan, and that on 30 September 2008 a section 129 notice had been sent to them. As there had been no response to the notice Nedbank was entitled to sue.
It further transpired that the summons had been served by the sheriff by affixing it to the door of the house, that no appearance to defend had been entered, that on 6 May 2009 default judgment had been granted and a writ of execution issued, and that the property had been sold on 8 July 2009. Transfer had, however, not yet taken place.
So on 12 August 2009, Zelda and Ronelle applied to court to have the judgment rescinded and the attachment set aside. Although the sisters claimed that they had not known about the summons, their main defence was that Nedbank had not complied with section 129 of the National Credit Act, in that it had not sent any notice. And they made the point that it was interesting that Pillay had not attached a copy of the notice to his affidavit. The sisters also pointed out that on 24 July 2009, prior to instituting the proceedings, their attorneys, Chris Fick Associates of Cape Town, had written to Nedbank's attorneys, Smuts Kemp & Smal (who practise in Bellville), asking for a copy of the section 129 notice, only to receive one of those letters that bring home just how damaging the decision to replace Latin 1 with How To Be An Arsehole 1 in the law curriculum actually was:
“We are prepared to assist on behalf of Nedbank with all reasonable enquiries, but unfortunately cannot create a defence for your client or your offices [...] your letter under reply is with respect nothing more than a fishing expedition to attempt to find a defence [...] you are in possession of the affidavit by Lutchmana Pillay and we fail to see why you need a copy of the Section 129 Notice [...] it is therefore not required for us to provide you with any further documents.”
Nedbank obviously contested the application to rescind the judgment, and on 26 August 2009 Pillay signed another affidavit (again in Durban), in which he admitted that he had not filed a copy of the notice with his previous affidavit, but declared proudly: “I have however managed to locate a copy of the notice in respondents’ records and I annex it hereto marked LP3.” And sure enough, attached to his affidavit was a letter, dated 30 September 2009, that said all the things that section 129 requires the credit supplier to say. The letter was addressed to the sisters at Zelda’s postal address in Durbanville. The letter was sent by Nedbank in Braamfontein and the signature, although unclear, was most certainly not Pillay’s. So clearly Pillay of Durban had not had any personal involvement with the letter that was sent. And there was no proof of posting.
Apparently sensing a problem, Nedbank filed a third affidavit from Pillay. This time he said that the reason why the notice was sent to the postal address in Bellville was because this was the address appearing on Nedbank’s computer, as Zelda and Ronelle had asked for all correspondence to be sent there because they didn’t live at the property. To which the ladies answered archly: if you knew we didn’t live at the property, why didn’t you send a copy of the summons to our postal address? And, once again, where is the proof of posting?
At the hearing, Nedbank’s counsel said the registration slip had been mislaid. Judge Veldhuizen gave the bank short shrift. On 2 November 2009, he rescinded the judgment and set aside the attachment. It was quite clear to the judge that, if a notice had in fact been sent, it had been sent to the wrong place.
But he clearly didn’t believe it had been sent. Judges presumably can’t say “you’re lying, you miserable bastard”, but they can say this: “It is submitted on behalf of the plaintiff that the registered slips or proof of postage have been mislaid. This submission is based on inference. I do not accept it. The plaintiff could very easily have obtained a duplicate copy of the registered slip and, in my view, it is more probable that this was not attempted because Mr Pillay knows it does not exist.”
Which leaves noseweek wondering – was Pillay told to lie; or was he just trying to save his job? | 
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