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[2010] ZAGPPHC 553
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First Rand Bank Limited t/a Honda Finance v Luthuli (68430/2009) [2010] ZAGPPHC 553 (26 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO:
68430/2009
DATE: 26 FEBRUARY
2010
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
FIRST RAND BANK
LIMITED,
T/A
HONDA
FINANCE
.......................................................................................................
Applicant/Plaintiff
And
NHLUPHEKO
LAZARUS
LUTHULI
........................................................................
Respondent/
Defendant
JUDGMENT
LEDWABA. J
[1] This is an
application for summary judgment in terms whereof the applicant,
plaintiff, prays for judgment against the defendant
for:
A. Confirmation
of Cancellation of the Agreement;
B. Repossession
of the GOODS;
2004 TOYOTA
COROLLA GLS A/T
ENGINE NUMBER:
AH53ZEC206504754
REGISTRATION
NUMBER: PXF 048 GP
C. Damages
postponed sine die;
D. Costs in the
APPLICA TION;
E. Interest on
prayer C at the rate of 15.948% per annum as from date of Summons to
date of payment; calculated on the outstanding
balance from time to
time, postponed sine die;
F. Further and/or
alternative relief ”
[2] The defendant is
opposing the application. The defence(s) raised by the defendant to
the plaintiffs application is set out in
paragraph 8, pages 30-31 of
the opposing affidavit as follows:
“
Furthermore
that applicant is precluded by the provisions of Section 88(3) which
clearly states that: Subject to Section 86(9) and
Section 86(10) the
credit provider who receives court proceedings contemplated in
Section 83, 85 or 86(4) (b)(i) may not exercise
or enforce litigation
or other judicial process, any right or security under the credit
agreement until-
(a) the consumer
is in default under the credit agreement; and
(b) One of the
event contemplated in Section 88 subsection (1) (a) through (c) has
occurred: which are
(i) the debt
counsellor rejects the application and the prescribed time period for
direct filing in terms of section 86(9) has expired
without the
consumer having so applied.
(ii) the court
has determined that the consumer is not over indebted, or has
rejected a debt counselor’s proposal or the consumer’s
application; or
(iii) a court
having made an order or the consumer and the credit providers having
made an agreement rearranging the consumer’s
obligation under
the credit agreement as re-arranged are fulfilled, unless the
consumer fulfilled the obligation by way of consolidation
agreement.
(c) or the
consumer defaults on any obligation in terms of the re-arrangement
agreed between the consumer and credit providers,
or ordered by a
court or Tribunal. ”
[3]
It is common cause that the agreement between the plaintiff and the
defendant is governed by the
National
Credit Act 34 of 2005 (the Act),
goods
were delivered to the defendant and ownership thereof would not pass
to the defendant.
[4] The defendant
does not dispute that he failed to pay regular instalment payments.
[5]
The plaintiff, in paragraph 8 of its particulars of claim alleged
that on 11
th
May 2009 the defendant applied for debt review in terms of
section
86 (10) of the Act.
However,
he remained in default under the Agreement and plaintiff gave notice
to terminate the debt review to the defendant, the
Debt Counselor and
the National Credit Regulator at least sixty (60) business days after
the date on which the defendant applied
for the debt review.
Plaintiff further alleged that the said notices are dated 27
th
August 2009 and are annexed to the particulars of claim marked ‘B’,
‘C’ and ‘D’ however, the
said notices were
not annexed to the particulars of claim.
[6] The respondent
alleged in the opposing affidavit that he has not received the
alleged notice of termination of the debt review.
[7]
Section 86(10) of
the Act
reads
as follows:
“
(10)
If a consumer is in default under a credit agreement that is being
reviewed in terms of this section, the credit provider in
respect of
that credit agreement may give notice to terminate the review in the
prescribed manner to-
(a) the consumer;
(b) the debt
counsellor; and
(c) the National
Credit Regulator, at any time at least 60 business days after the
date on which the consumer applied for the debt
review.”
[8]
The main issue, in my view, is whether the applicant gave the notice
of termination in terms of
section
86(10) of the Act
or
not. The alleged notices were not attached to the summons and the
significantly respondent disputes that he received them.
[9] On the papers
before me the manner in which the alleged notices of cancellation
were given has not been specified and the address
to which the
notices were sent is therefore not known. Since the said notices were
not attached, I have a bold allegation by the
plaintiff that notices
have been sent and a bold allegation by the respondent that the
notices were not received.
[10]
Having regard to the wording of section 65, I think the onus is on
the plaintiff to prove delivery of the notices. In the absence
of
enough information how notices were given or delivered, I have doubts
that notices were given and that
section
86(10)
was
complied with.
[11] I therefore,
make the following order:
(i) the
application for summary judgment is dismissed.
(ii) the
defendant is granted leave to defend.
(iii) costs to be
costs in the main application.
A. P. LEDWABA
JUDGE OF THE HIGH
COURT
Date of Hearing: 17
February 2010
Counsel for
Applicants: Advocate J. du Plessis
Instructed by: Hack,
Stupel & Ross
Counsel for
Respondent: Advocate L. Leballo
Instructed by:
Balyoi Mafuyeka Phalatse Inc.
not known. Since the
said notices were not attached a bold allegation by the plaintiff
that notices have be and a bold allegation
by the respondent that the
notio not received.
[10]
Having regard to the wording of section 65, I think
t\
is
on the plaintiff to prove delivery of the notices, absence of enough
information how notices were c delivered, I have doubts
that notices
were given a section 86(10) was complied with.
[11] I therefore,
make the following order:
(i) the application
for summary judgmc dismissed.
(ii) the defendant
is granted leave to defend.
(iii) costs to be
costs in the main application.
A. P. LED
JUDGE OF THE HIGH
Date of Hearing: 17
February 2010
Counsel for
Applicants: Advocate J. du Plessis
Instructed by: Hack,
Stupel & Ross
Counsel for
Respondent: Advocate L. Leballo
Instructed by:
Balyoi Mafuyeka Phalatse Inc.