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[2010] ZAGPPHC 133
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First Rand Bank Limited v Kriel and Another (36569/2009) [2010] ZAGPPHC 133 (23 September 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH, PRETORIA)
CASE
NO: 36569/2009
DATE:
23/09/2010
In
the matter between:
FIRST
RAND BANK LIMITED
(formerly
known as
FIRST
NATIONAL BANK OF SOUTH AFRICA LTD)
.........
Plaintiff
and
JOHANNES
DAVID
KRIEL
............................................................................................
First
Defendant
INGE
KRIEL
......................................................................................................................
Second
Defendant
JUDGMENT
MAKGOKA.
J
:
[1]
This is an opposed application for summary judgment. The plaintiff
issued summons against the first and second defendants for
payment of
the sum of R202 797.17 being the balance of monies allegedly due,
owing and payable under a covering mortgage bond by
reason of the
alleged failure by the defendants to pay the bond instalments. The
plaintiff further seeks an order declaring the
mortgaged property
executable, as well as costs on an attorney and client scale.
[2]
The agreement between the parties is subject to the provisions of the
National Credit Act, 34 of 2005 ("the Act").
In their
affidavits opposing summary judgment, the defendants raised three
defences. First, that the summons is excipiable, in
that in terms of
section 130 (2) of the Act, a creditor cannot claim a shortfall on a
mortgage loan agreement and may only ask
for the property to be
declared executable. Second, that the defendants never received the
notice in terms of section 129 of the
Act. Third, that the credit
advanced to the defendants constituted reckless credit as
contemplated in sections 80 and 81 of the
Act.
[3]
The advent of the Act has brought with it a new dimension of
opposition to summary judgment applications. Whereas opposition
was
in the past based on substantive defences, in many cases that come
before this court, where the Act is applicable, the defences
are
mostly procedural and technical in nature. The present application is
no exception.
[4]
I deem it convenient to deal first with the second point raised by
the defendants, namely non-receipt of the section 129 notice.
The
said section, read with section 130 of the Act, entail that if the
debtor is in default, the creditor "may" draw
the debtor's
notice in writing thereto and propose that the debtor makes
arrangement for settlement of the outstanding debt, or
refer the
agreement to a debt counsellor, alternative dispute resolution agent,
consumer court or ombudsman. The creditor may not
enforce the credit
agreement unless at least 10 business days had lapsed since the
creditor had delivered the said notice and the
debtor had remained in
default for at least 20 business days.
[5]
The question whether actual receipt of the said notice is required or
whether proof of dispatch by the credit provider is sufficient
for
the purposes of the Act, is subject of divergent and conflicting
decisions in this court, Gauteng South (Johannesburg), and
Kwazulu -
Natal, (Durban).
[6]
See
Munien
v BMW Financial Services SA (Pty) Ltd and Another
2010
(1) SA 549
(KZD) at 555A;
The
Standard Bank of South Africa Ltd v Rockhill and Van Heerden
Case
No. 56251/09 (GSJ) at par 3, delivered on 11 March 2010;
First
National Bank Ltd v Rossouw
Case
No. 30624 (GNP) at pars 10 and 11, delivered on 6 August 2009;
Starita
v ABSA Bank Ltd
Case
No. 745 (GSJ) delivered on 26 March 2010, where it was held that the
actual receipt of the relevant section 129 by the consumer
is not a
pre- requisite for compliance with the Act.
[7]
However, in
ABSA
Bank Ltd v Prochaska t/a Bianca Cara Interiors
2009
(2) SA 512
(D) and
Firstrand
Bank Ltd v Dlhamini
Case
No. 50146/2009 (GNP) delivered on 17 March 2010, the contrary was
decided, namely that the actual receipt of the section 129
notice by
the consumer, was a pre- requisite for compliance with the Act.
[8]
I
was
informed from the Bar during the hearing hereof that the judgment of
Ellis AJ in
First
National Bank v Rossouw,
has
been taken on appeal. For the present purposes however, I prefer the
reasoning of the courts in the former cases.
[10]
With regard to the first point in
limine,
the
plaintiff has attached to the summons, as proof of transmission, a
post office list of registered letters. The list reflects
the
plaintiff as a sender to six recipients, amongst whom, the
defendants. The document also makes provision for signature by the
accepting officer of the relevant post office. The document is
unsigned by such an accepting officer. There is also made provision
for the date stamp of the post office from which the registered
letters would be posted. There is no such stamp. As a result, I
was
not satisfied, ex
facie
the
document, about the transmission of the section 129 notice.
[11]
Given the view I take (that the plaintiff has not established
transmission of the section 129 notice) I do not deem it necessary
to
deal at this stage with the other points raised by the defendants.
The application for summary judgment should be postponed
to afford
the plaintiff an opportunity to comply with the provisions of section
129 of the Act, to the extent I have found this
not to have been
done. Costs should be reserved.
[12]
I therefore make the following order:
1.
The
application for summary judgment is postponed
sine
die.
2.
The
plaintiff is directed to comply with
sections 129
and
130
of the
National Credit Act 34 of 2005
.
3.
In
the event of the circumstances contemplated in
section 130
(1)
arising, the plaintiff may continue with the action for an order to
enforce the credit agreement, if needs be, by amending
its
particulars of claim and by setting down the application for summary
judgment on 5 days' notice to the defendants.
T
M MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:19 MAY 2010
JUDGMENT
DELIVERED: 23 SEPTEMBER 2010
INSTRUCTED
BY: HACK STUPLE & ROSS, PRETORIA
FOR
THE DEFENDANT: ADV M HUGO
INSTRUCTED
BY: LOMBARDS ATTORNEYS, PRETORIA