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[2010] ZAGPPHC 602
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Nedbank Ltd v Hogan and Another (30992/2009) [2010] ZAGPPHC 602 (31 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case No: 30992/09
Date heard:
26/05/2010
Date of
judgment:31/05/2010
In the matter
between:
Nedbank
Ltd
......................................................................................................................................
PLAINTIFF
and
Johannes Alwyn
Hogan
.....................................................................................................
FIRST
DEFENDANT
Anna Johanna
Hogan
....................................................................................................
SECOND
DEFENDANT
JUDGMENT
DU PLESSIS J:
The
plaintiff, a bank, claims from the defendants the amount of R169
600.85 plus interest and costs. It also claims an order declaring
certain immovable property executable for the said sum and costs. It
is common cause that the claim arose from money that the plaintiff
on
three occasions lent to the defendants and that, as security for the
loans, the defendants registered mortgage bonds over the
immovable
property. It is not in issue that the loans, and thus the plaintiffs
claims, are subject to the provisions of the
National
Credit Act, 34 of 2005
(“the
Act”)
The defendants have
entered an appearance to defend the action and have filed a plea. The
plaintiff has taken exception to the plea,
contending that it does
not disclose a defence.
In the plea the
defendants admit that they owe the money. They only raise defences
based on the requirements of the Act.
First, the
defendants deny the plaintiffs allegation that, before the issue of
summons, it had “delivered a notice as contemplated
by Section
129(1)(a) of the Act to the Defendants”. In addition, the
defendants plead that the section 129-notice did not
“meet the
prescribed requirements as determined in section 129” of the
Act. Mr van den Heever for the plaintiff conceded,
rightly, that in
this respect the plea discloses a defence and that, to that extent,
the exception cannot succeed.
Mr Van den Heever,
however, contended that the further defence raised is not good in law
and falls to be struck out. It is to that
defence that I now turn.
In its declaration
the plaintiff alleges that it did not approach the court “during
the time that the matter was before a
debt counsellor". (This is
a reference to section 130(3)(c)(i) of the Act.)
The defendants deny
the allegation. They further plead that they “applied for debt
counselling on 28 May 2009 and consulted
with a debt counsellor on 1
June 2009 in accordance with” the Act (See section 86(1)). They
also plead that there is a pending
debt review application before the
magistrates' court (Section 86(7)(c) and 87 of the Act).
For the plaintiff it
was contended that by reason of the provisions of section 86(2) of
the Act, the defence that the plaintiff
approached the court whilst
the matter is before a debt counsellor, is not sustainable.
In terms of section
86(1) of the Act a “consumer may apply to a debt counsellor in
the prescribed manner and form to have
the consumer declared
over-indebted.” Section 130(3)(c)(i) provides as follows:
“Despite any provision of law or contract
to the contrary, in
any proceedings commenced in a court in respect of a credit agreement
to which this Act applies, the court
may determine the matter only if
the court is satisfied ... that the credit provider has not
approached the court... during the
time that the matter was before a
debt counsellor”.
The plaintiff
contends that the matter is not before a debt counsellor because, in
terms of section 86(2) an application for debt
review under section
86 “may not be made in respect of, and does not apply to, a
particular credit agreement if, at the time
of that application, the
credit provider under that credit agreement has proceeded to take the
steps contemplated in section 129
to enforce that agreement.”
The plaintiffs
contention must be decided in the following factual context. This
being an exception, the defendants’ allegation
that they have
applied for debt review must be taken as correct in the sense that a
proper application in terms of section 86(1)
was made on 28 May 2009.
It is common cause that the plaintiffs summons was issued on 25 May
2009, before the defendants’
application for debt review. It is
also common cause that the summons was served on 28 May 2009, on the
very day that the defendants
made the application for debt review. Mr
Van den Heever conceded, correctly, that it must be assumed for
purposes of the exception
that the application for debt review was
made before service of the summons.
The crisp question
in this case is this: When does a credit provider (plaintiff)
“proceed to take the steps contemplated in
section 129 to
enforce that agreement"?
In
the matter of
Nedbank
Ltd v Motaung
(TPD,
case no
22445 / 07)
I
held that by delivering a section 129-notice, a credit provider
proceeds to take the steps contemplated in section 86(2). I have,
on
reflection, doubt about the correctness of that judgment. In this
case neither party contended that the date of the delivery
of the
section 129-notice is the relevant date. Suffices it to say that,
without argument, I am not at the exception stage prepared
to hold
that that my previous judgment is correct and must be followed.
In
this case the only arguments were, for the plaintiff that the
relevant date is the date of
issue
of
summons and, for the defendants, that the relevant date is the date
of
service
of
the summons. I shall now consider those arguments.
In
Starita
v
ABSA Bank Ltd
(South
Gauteng case no
745/09,
para.
12) Gautschi AJ held that the “proper construction of section
86(2) is that the steps taken under section 129 as referred
to in
section 86(2) are the steps taken after the notice has been given,
starting with the
issue
of summons
.
(The underlining is mine). In paragraph 13 of the judgment, the
learned judge motivates the underlined portion by holding that
“section 86(2) must... be read objectively”. If the
credit provider had in fact taken the steps referred to, the learned
judge reasoned, the prohibition of section 86(2) commences. The
learned judge concluded that knowledge on the part of the consumer
that the steps had been taken is irrelevant.
With respect, the
learned judge may have overlooked the following: Section 86(2)
prohibits the consumer from making an application
in terms of section
86 if the credit provider has already, at the time of the
application, “proceeded to take the steps contemplated
in
section 129 to enforce that agreement". There is room for the
view that section 86(2) must refer to steps that the consumer
is
aware of. If the section is not so construed, it would mean that,
between the date of the issue of summons and the date of service
thereof the consumer would be subject to a prohibition that he is
unaware of. I find it unnecessary to make a final finding. The
interpretation of the Act is still the subject of many varied views
and judgments. It is in this case unnecessary and undesirable
to make
a final decision at the exception stage. The defendants have raised a
good defence. In view thereof, the matter must in
any event proceed
to trial. The defence against which the plaintiff still objects will
not occasion further costs of substance.
Although I am
inclined to the view that the exception should not be allowed, I
found it unnecessary in this case finally to determine
the legal
question that the exception raised. The exception, however, cannot be
said to have been without substance. The fair order
in the
circumstances would be to allow the costs of the exception to follow
the ultimate result of the case.
The following order
is made:
1. The exception is
dismissed.
2. The costs of the
exception shall be costs in the cause.
B.R. du Plessis
Judge of the High
Court
On behalf of the
Plaintiff: Hack Stupel & Ross
2
nd
Floor
Standard Bank
Building
Pretoria
Adv: F.R. Van Den
Heever
On behalf of the
Defendant: Spruyt Incorporate
Suite 110, Infotech
Building
1090 Arcadia Street
Hatfield
Adv: L.A. East