About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 222
|
|
SAAMBOU Bank Limited v Roth and Another (30704/10) [2010] ZAGPPHC 222 (9 December 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO: 30704/10
DATE: 09/12/2010
In the matter between
SAAMBOU BANK
LIMITED
......................................................
APPLICANT
And
LINDA
ROTH
...............................................................................
1
ST
RESPONDENT
LINDA ROTH
BELEGGINGS
...................................................
2
ND
RESPONDENT
JUDGMENT
MSIMEKI, J
INTRODUCTION
[1] This
is an application for summary judgment. The application had come
before Rabie J on 16 September 2010 when
the application was postponed to 1 December 2010; the parties were
granted leave to file the supplementary affidavits before 1
December
2010; the Respondents were ordered to bring an urgent application to
the magistrate court in terms of section 86 (11)
of the National
Credit Act to revive the debt review procedure and the Respondents
were further ordered to bring the application
within 10 days from the
date of the order to afford the Applicant at least 10 days to file
its opposing affidavit. The Applicant,
in the event that the
Respondents failed to comply with the court order, would be entitled
to proceed with the application for
summary judgment.
[2] The
matter came before me on 1 December 2010 when Ms Cilliers submitted
that:
2.1 The
first Respondent had merely filed an application on 4 October 2010.
2.2
The
deponent to the application is Geraldine Grundling, a debt
Counsellor.
2.3 The application is
headed:
NOTICE OF MOTION IN
TERMS OF SECTION 86 (11) OF THE NATIONAL CREDIT ACT, ACT 34 OF 2005.
The
Notice of Motion is not stamped with the Magistrate’s court
stamp to show the issue thereof by the clerk of the court.
The Notice of Motion
bears no date by which an indication should be given should the
application be opposed.
The
Notice of Motion is not accompanied by an applicaton for
condonation as the Notice of Motion was served on 4 October 2010
outside the 10 days the
court order
refers to.
The
application was not brought on an urgent basis.
The
Respondent had had enough time within which to bring the
application.
There
is no explanation why the co
urt order was
not complied with, and
The
application does not indicate a date and time for the hearing
thereof.
[3] As
Ms Cilliers, on behalf of the
Applicant,
correctly submitted, the Applicant filed an application which, on the
face of it, does not comply with the rules of the
court, has not been
set down and has not been adjudicated upon. Mr van Zyl, on behalf of
the Respondents, found himself in a difficult
position in that he was
not armed with the first Respondent’s affidavit explaining what
transpired from the time Rabie, J
gave the order todate. In the
absence of such an affidavit, especially with the difficulties and
problems alluded to above, it
cannot be said that the first
Respondent has complied with the court order which was meant to
assist her and the second Respondent.
The Applicant, in the said
Notice of Motion was not invited to oppose the application in terms
of Section 86 (11) if it so wished.
In the event that it so wished,
it was not indicated by when it ought to have filed its papers which,
according to Ms Cilliers,
further rendered the Notice of Motion
defective. I agree. It is noteworthy that the first Respondent’s
debt review procedure
has been terminated in terms of section 86 (10)
of the NCA. Ms Cilliers further submitted, correctly in my view, that
the first
Respondent’s application in terms of section 86 (11)
of the NCA was not
bona fide
and
that the second Respondent had neither been under debt review nor
filed an opposing affidavit.
[4] Mr
Van Zyl, realising the Respondent’s problems, then applied that
the matter be postponed to enable the Respondents to
be properly
before the court and to properly deal with the matter. Ms Cilliers
opposed the application. In light of the history
of the matter and
the adequate time that the Respondents were accorded to deal with the
matter, the application for a further postponement,
in my view, stood
to be dismissed. Ms Cilliers then proceeded to make her submissions
in respect of the summary judgment application.
The Applicant, having
terminated the debt review procedure, its papers being in order and
the Respondents having failed to comply
with the court order of Rabie
J, is
entitled
to the order that it seeks against the first and the second
Respondents as set out in the notice of motion.
[5]
In the result the order I make is as follows:
1.
The
application for postponement is dismissed with costs.
2.
An
order is granted in terms of prayers 1, 2, 3 and 4 of the application
for summary judgment dated 16 July 2010.
M
W
MSIMEKI
JUDGE
OF THE HIGH COURT
Heard
on: 01 December 2010
For
the Applicant: Adv. S. Cilliers
Instructed
by: Petzer, Du toit & Fcamulifho
For
the Respondent: Adv. H. van Zyl
Instructed
by: Grundling & Nel Attorneys
Date
of Judgment: 09 December 2010