Business rescue — application for setting aside of business rescue plan — non-joinder of creditors having direct and substantial interest — notice in terms of section of the Companies Act 71 of Act insufficient — counter-application declaring certain suretyships void — rendered moot on dismissal of main application — costs of. The bank, as applicant, brought an application against Mr Etienne Jacques Naude NO, the business rescue practitioner the practitioner as first respondent and the company as second respondent, for a declaratory order that the decision taken at the meeting of creditors on 12 Octoberapproving the business rescue plan for the company, was unlawful and invalid.
Although applicant claims that he did not receive the summons, he does not deny that at the time that the summons were served, he still lived at absa business plan format same address namely [ There was also an arrangement between the parties that although judgment was obtained the respondent would pend a warrant of execution for delivery of goods pending the outcome of the application for rescission of Judgment.
Applicant submits that it has a good defence in law to the claim of the respondent because the respondent did not strictly comply with the provisions of Section 1 a of the National Credit Act 34 of the NCAread with Section65 2 andwhich it submits had to be given effect to, prior to the respondent issuing summons and obtaining default judgment as a consequence thereof.
Applicant deny that he knew the recipient of the letter. Needless to say, the e-telegram delivery report indicates that the address of delivery is [ The contract entered into between the Applicant and the Respondent does not provide for service by way of e-telegram either.
Applicant relies on the provision of Section of the NCA that there was no service upon it, which provides as follows: Respondent submits further that it complied with the provisions of Section 1 a read with and 65 2 of the NCA and therefore that proper notice was given to the applicant.
Johan Buys provides details on various attempts made to collect payments from the applicant and these include: I acknowledge that I was in arrears on the date judgment was granted in my absence.
The remainder of the averments are irrelevant to this application in that averments, whether factually correct or not, cannot and do not cure the fact that I never received the letter of demand in terms of section I was supposed to have been given an opportunity to bring the arrears in respect of the vehicle up to date or to avail myself of the rights afforded to every debtor in terms of section of the National Credit Act.
Subsection 1 reads as follows: The relevant provision of reads: It is section 65 and which deals with delivery of documentation under the Act.
Sub section 1 and 2 states as follows: However it does not state how this must be done. The word deliver is not defined in the NCA itself but in the Regulations. The Regulation contains the following definition: The credit provider discharges its obligation of delivering the notice by sending it to the postal address selected by the consumer.
As the consumer has the right to choose the manner in which notice is to be given it is for the consumer to ensure that the method chosen will be one that is reasonably certain to bring any notice to his or her attention.
For present purposes three features merit emphasis. 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.
This accords with section 1 b iwhich provides that a credit provider may seek to enforce its rights if a consumer has not responded to a section 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.
Certainly, the Act imposes no further hurdles and the credit provider is entitled to enforce its rights under the credit agreement.
She will not subsequently be entitled to disrupt enforcement proceedings by claiming that the credit provider has failed to discharge its statutory notice obligations. Conversely the respondent submitted that it complied with the peremptory requirements of section and and 65 2 of the NCA.
The instalment agreement states as follows at paragraph He gave this address in the instalment agreement. In my view, this cannot be the actions expected out of a reasonable consumer. The purpose of the Act was not to give unreasonable consumers an unfair advantage against credit providers acting in good faith to recoup monies owed to them.
Anton Roux on behalf of the respondent, submitted that when the notice in terms of section 1 a was delivered to the address of the applicant, the post office workers were on strike at the time.
The respondent elected to dispatch the notice by way of e-telegram. It is common cause that the e-telegram notice was delivered at the chosen address of the applicant. It is not in dispute that the applicant was residing at that address. What is in dispute is that the recipient of the notice is known or related to the applicant.
Applicant denies that the said letter came to his attention in the circumstances.
In the premise, the respondent has complied with the provision of sections 1 a and of the NCA. In my view the applicant does not have any reasonable prospects in succeeding in his application of rescission of the judgment granted against him.
The respondent will be prejudiced if it cannot take the vehicle in question in its possession to avoid the risks of depreciation in value, wear and tear and possible damages.
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