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[2010] ZAWCHC 452
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Volkswagen Financial Services, A Division of Wesbank, A Division of Firstrand Bank Ltd v Gezwint (14552/2010) [2010] ZAWCHC 452 (31 August 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE, HIGH COURT)
CASE
NUMBER
14552/2010
DATE
31
AUGUST 2010
In
the matter between:
VOLSWAGEN
FINANCIAL SERVICES A DIVISION OF WESBANK
A
DIVISION OF FIRSTRAND BANK LTD
…...........................................
Applicant
and
ELROY
PAUL GEZWINT
….................................................................
Defendant
JUDGMENT
BOZALEK.
J
:
In
this summary judgment application the applicant, a vehicle sale
financier, is the seller in terms of an instalment sale agreement
of
a motor vehicle and seeks cancellation of the instalment sale
agreement and the return of the vehicle from the purchaser who
is
admittedly in substantial arrears with his monthly instalments.
The
defence raised at some length by the defendant, is that he
has
applied for a debt review in terms of the National Credit Act, No. 34
of 2005 ("the Act") and the application is due
to be heard
in the Magistrate's Court on 22 September 2010, i.e. in just under
two months' time.
In
argument, Mr
Wessels
for
the plaintiff/applicant points out that it appears from the papers
that the applicant terminated the debt review process in
terms of
Section 86(10) of the Act after more than 60 days following receipt
of notification of the debt review process from
the respondent and
thereafter the applicant issued summons on the debt after the expiry
of a further 10 days.
Mr
Wessels relied on the recent judgment of
Binns-Ward,
J
in
Wesbank
vs Martin
delivered
on 13 August 2010. I have considered this judgment, the facts of
which are on all fours with those in the present matter,
and am in
agreement with the main conclusions reached therein by the learned
judge.
Mr
Holland
,
for the respondent, did not seek to dispute the applicability or
ratio of the judgment. He confined his argument to the submission
that the notifications by the credit provider to the National Credit
Regulator and the debt counsellor did not comply with the
requirements of the Act, in that they spoke only of an "intention"
to terminate the debt review.
I
do not consider that this submission has any merit for several
reasons'.
1.
I am satisfied that, properly construed, the applicants notices to
those two parties indicated clearly that it was terminating
the debt
review process and not merely considering this step;
2.
although section 86(10) refers to a notice "in the prescribed
form" there is in fact no such prescribed form;
3.
in
Wesbank
vs Martin
it
was made clear that it is not the notice alone which terminates the
debt review process, but the subsequent institution of
proceedings
for the recovery of the debt.
The
timetable in the present matter is as follows:
1.
on 18 November 2009, the defendant applied for a debt review;
2.
on 11 June 2010 and more than 60 days after the application for debt
review, the plaintiff sent notices in terms of section
86(10) to the
defendant, his debt counsellor and the National Credit Regulator;
on
the 7 July the plaintiff issued its summons - that was more than 10
days after the delivery of the aforesaid notices;
on
the 16 July the summons was served;
5.
on
3 August the plaintiff served its application for
summary
judgment;
6.
only
thereafter on the 25 August 2010 did the debt
counsellor and
defendant issue an application for a
debt restructuring order.
There
is no explanation before me as to why the debt counsellor was so
tardy in issuing an application for a debt restructuring
order.
In
the circumstances, I do not consider that the respondent has
established a
bona
fide
defence
to the main relief sought by way of summary judgment, namely
cancellation, the return of the motor vehicle and the following
order is therefore made:
Summary
judgment is
GRANTED
and
it is ordered that:
1.
Cancellation of the agreement is confirmed.
2.
The defendant is to deliver the goods, being a 1999
Opel
Astra with engine number 20SEH25015745 to the plaintiff.
3.
The relief sought in prayers (c) and (d) of the Plaintiff's
Particulars of Claim will stand over for later determination.
4.
The defendant is to pay the costs of the application for summary
judgment on the scale as between party and party.
BOZALEK, J