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[2010] ZAGPPHC 113
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SA Taxi Securitisation (Pty) Ltd and Another v Ntuli (15859/09) [2010] ZAGPPHC 113 (7 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
DATE:7
SEPTEMBER 2010
CASE
NO: 15859/09
In
the matter between:
SA
TAXI SECURITISATION (PTY) LTD FIRST RESPONDENT
SA
TAXI FINANCE (PTY) LTD
SECOND
RESPONDENT
vs
MBANDLULULI
JERRY NTULI
APPLICANT
JUDGMENT
BOTHA.
J
This
is an application for the rescission of a default judgment granted
against the applicant on 2 June 2009. The applicant also
asks that a
warrant of execution be set aside, that a debt review process
initiated by him be resumed, and that the first respondent's
action
be stayed in the mean time.
The
applicant alleges is that he initiated the debt review process on 13
November 2008 when he approached a debt counsellor. The
counsellor
accepted his application and on 20 February 2009 a restructuring
proposal was made. On 3 March 2009 the respondents,
without
responding to the proposal, served a notice to terminate the debt
review. On 10 April 2009 a summons issued on 24 March
2009, was
served on him. The debt counsellor advised him that he need not enter
appearance to defend and that the Registrar of
the High Court would
be notified that the matter was pending the Johannesburg Magistrate's
Court. Such a notice was filed on 18
April 2010. The notice of
application for debt review had been filed with the Johannesburg
Magistrate's Court on 26 March 2009.
He
also referred to correspondence between the debt counsellor and the
first respondent.
He
submitted that the first respondent acted in bad faith by
circumventing the debt review process.
He
submitted that the first respondent acted contrary to section 88(3)
and 130(3)(e) of Act 34 of 2005 by obtaining default judgment.
In
the answering affidavit the first respondent's deponent made the
point that the applicant had entered into three agreements in
respect
of three vehicles with the first respondent. All three agreements
were cancelled. He alleges that all the jurisdictional
facts for a
cancellation of the debt review in terms of section 86(10) were
present. He pointed out that the applicant did not
comply with his
own restructuring proposals. He denied that the first respondent was
bona
fide
and
point out that the notice of termination was only sent after four
months.
Mr
Moremogolo who appeared for the applicant set out the scheme of Act
34 of 2005 and argued that it did not allow for a credit
provider to
obtain judgment against a consumer whilst a debt review process is
still under way.
Mr
Mollentze, who appeared for the respondents, argued that the first
respondent had properly terminated the debt review in terms
of
section 86(10) and that the application should therefore be
dismissed.
The
applicant must show good cause. His explanation for his failure to
enter appearance is supported by the fact that his debt counsellor
did send a notice of debt review to the High Court, which was
received on 17 April 2009, in which notice was given of the review
that was pending in the magistrate's court.
In
Standard
Bank of South Africa Ltd v Kruger and Standard Bank of South Africa
Ltd v Kruger 2010(4) SA 635 (SGJ) at 644 G
it
was held that it was not competent for a credit provider to terminate
a debt review once it is pending before the magistrate's
court. Both
cases forming the subject matter of the judgment were cases where the
consumers had applied for debt review before
summons was issued. See
also
BMW
Financial Services (SA) (Pty) Ltd v Donkin 2009(6) SA 63 (KZD) at 70
G.
That
being the case the first respondent was precluded by section 130
(3)(c)(1) to obtain judgment.
In
the circumstances the application must succeed.
In
view of the conclusion that judgment should not have been obtained, I
am of the view that the respondents should pay the applicant's
costs.
The
following order is made:
1.
Prayers
1, 2, 3, 4 and 5 of the notice of motion are granted.
2.
The
respondents must pay the applicant's costs.
C.
BOTHA
JUDGE
OF THE HIGH COURT