Blue Chip 2 (Pty) Ltd t/a Blue Chip 49 v Ryneveldt (499/2015) [2016] ZASCA 98 ; 2016 (6) SA 102 (SCA) (3 June 2016) per Pillay JA (Theron, Wallis, Petse and Willis JJA concurring)

The SCA disallowed the appeal and upheld the judgment of Van Zyl J and Reinders AJ in the High Court.  The credit provider failed to prove that the cause of action arose wholly within the magisterial district or regional division of the magistrates’ court.  The necessary notice had been delivered outside that area and formed an essential element of the cause of action.

SCA summary:

Magistrates’ Court Act 32 of 1944 – jurisdiction – s 28(1)(d) – cause of action arising wholly within the district or regional division – delivery of notice in terms of s 129(1)(a) of the National Credit Act 34 of 2005 – a material element of the cause of action – delivery thereof outside the area of jurisdiction of the magistrate’s court is fatal to claim since cause of action did not wholly arise within the district or regional division.

Excerpts without footnotes

[18]      The delivery of a s 129 notice is a peremptory step which is a pre-requisite for any judgment sought on a claim arising out of a default of a credit agreement.  The failure to take the necessary steps prior to judgment, will result in a court refusing to grant judgment in favour of the claimant.  It is a step which is recognised in the NCA as essential to granting judgment in favour of a claimant.  Hence in para 87 of Sebola, it is pointed out that if indeed a litigant has failed to comply with any provision of the NCA, including s 129, s 130(4)(b) provides for steps which may be taken in order to remedy the situation in terms of an order of the court.  A failure to allege and prove compliance with s 129(1) (even after s 130 procedures) would render a summons excipiable and the matter would end without judgment in favour of the claimant being granted.

[19]      As was said by Majiedt AJP in Beets v Swanepoel (para 19):

‘.  .  .  a plaintiff must in my view aver compliance with these sections [s 129 and s 130] in the summons or particulars of claim to disclose a cause of action where the suit is based on a credit agreement to which the Act applies.  It is a material averment, the absence whereof would render the pleading excipiable.  Without the requisite notice, a claim cannot be enforced.’

The reason for this is that the pleadings would lack a proper cause of action.

[20]      In order to disclose a cause of action to enforce a claim emanating from a default of a credit agreement, an averment of compliance with s 129 must be contained in the summons and proved.  Delivery of a s 129 notice forms part of the cause of action.  It is an essential component of a plaintiff’s cause of action.  It must occur before a cause of action can be said to have arisen.  Absent compliance therewith, there would be no cause of action.

[21]      The giving of the notice is therefore critical to the question of jurisdiction in relation to s 28(1)(d) of the Act.  Since it is common cause that delivery of the s 129 notice took place outside the area of jurisdiction of the Bloemfontein Magistrates’ Court, the cause of action did not arise ‘wholly within the district or regional division’ of that court.  It follows therefore that the magistrate was correct in finding that he could not deal with the matter for lack of jurisdiction.  The high court was also correct to dismiss the appeal.”