The High Court in Johannesburg has dismissed Nedbank’s application for summary judgment in a motor vehicle repossession matter after finding that the bank’s section 129 notice under the National Credit Act (NCA) contained an incorrect arrears amount and was therefore non-compliant.
The Court held that this defect meant the bank had not established a valid and competent claim, a prerequisite for the granting of summary judgment.
The ruling, handed down in November, adds to a line of cases confirming that compliance with sections 129 and 130 is a foundational prerequisite for enforcement litigation under the NCA, and credit providers bear a strict responsibility to get it right before approaching the courts.
Background to the case
Nedbank and the defendant, Patrick Tshivhase, concluded an instalment sale agreement for the purchase of a 2016 BMW 420D Gran Coupe Sport.
According to Nedbank’s particulars of claim, Tshivhase fell into arrears and despite demand, failed to make payment. The bank alleged arrears of R25 619.22 as at the date of summons and sought cancellation of the agreement and the return of the vehicle.
As required by the NCA, the bank relied on a section 129 notice that had been dispatched on 1 July 2024. Tshivhase, however, filed a special plea asserting that Nedbank had not complied with sections 129(1)(a), 130(1)(a), and 130(3)(a) of the Act.
His central contention was that the notice incorrectly stated the arrears as R288 660.99, which was significantly higher than the arrears figure pleaded in the particulars of claim. Because of this discrepancy, Tshivhase argued the notice was defective and barred the granting of summary judgment.
Nedbank conceded in its summary-judgment affidavit that the first notice contained an incorrect arrears figure. It nevertheless argued that the defect had been cured by sending a second section 129 notice on 25 September 2024, which reflected the correct arrears amount.
Tshivhase challenged the validity of the second notice, arguing it had been sent to his attorneys rather than to him personally, and it was improper to attempt to cure a defective notice ex post facto after proceedings had commenced.
Authorities considered by the Court
The High Court considered several binding authorities dealing with the purpose and requirements of section 129 notices.
Counsel for Tshivhase relied on Amardien and Others v Registrar of Deeds and Others (2018), where the Constitutional Court held that a credit provider must accurately convey the default and arrears to a consumer. Quoting from Amardien, Acting Judge T Dalrymple highlighted the following passages:
- Section 129(1) obliges a credit provider to draw the default to the attention of the consumer, and this includes the arrears amount, because this will only be met if the amount of arrears is specified in the notice.
- The Constitutional Court stated that unless the arrear amount is correctly stated, the consumer’s attention will not have been drawn to the amount of the default, leaving them none the wiser about how much is needed to bring the account up to date.
The Court also considered FirstRand Bank Ltd v Reineke and Another (2025), where the Full Bench of the High Court in Pretoria held that a section 129 notice is non-compliant if it contains the wrong arrears amount.
In addition, the Court cited Gulf Steel v Rack-Rite BOP (Pty) Ltd (1998), which held that before assessing any defence, the Court must be satisfied that the plaintiff’s own claim is technically sound and properly pleaded. The Court emphasised that summary judgment cannot be granted if the plaintiff’s own papers – on their face – disclose a defect.
This principle, Dalrymple AJ noted, had been endorsed by the High Court in Johannesburg in Liquor Network Agency CC and Another v Skylim Beverages CC (2024), where the Full Bench held that a plaintiff seeking summary judgment must establish a valid, competent claim before the Court can consider whether the defendant has a bona fide defence.
First section 129 notice was defective
Given the incorrect arrears amount, it was common cause that Nedbank’s original section 129 notice was defective. Dalrymple AJ held that the notice was not compliant with the NCA, and Nedbank therefore failed to establish a valid and competent claim in its particulars.
He said this was not a “mechanical” objection: the defect went to the heart of the statutory purpose of section 129. Moreover, because the cause of action verified in the summary-judgment affidavit depended on that defective notice, the application itself was fatally flawed.
Second notice could not cure the defect
The judge then addressed whether the second notice, delivered after the filing of pleadings, could salvage the situation. He held that it could not for two reasons:
- It was not part of the original cause of action that Nedbank had verified when launching summary judgment.
- In line with Firstrand Bank Ltd t/a First National Bank v Moonsamy t/a Synka Liquors (2021), non-compliance with section 129 is not cured by attaching or substituting proof of compliance at the summary-judgment stage. The same principle applied here: “A defective section 129 notice cannot be cured by substituting it for a new one in summary judgment proceedings.”
Because Nedbank had not established a claim in its papers, it was not entitled to summary judgment. The application was therefore dismissed, and Tshivhase was granted leave to defend.
Did the defect invalidate the entire action?
Counsel for Tshivhase argued the defect was fatal not only to the summary-judgment application but to the entire action. Nedbank would have to withdraw and start again.
Dalrymple AJ disagreed. He held that Nedbank could amend its particulars of claim, and compliance with sections 129 and 130 would then have to be assessed afresh.
Section 130(4) of the NCA applied to the circumstances. If the credit provider has not complied with the Act, the Court must adjourn the matter and make an appropriate order setting out the steps the credit provider must complete before the matter may be resumed.
The Court ordered a stay of action until 10 business days after Nedbank had properly served a compliant section 129 notice.
