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[2011] ZAGPPHC 39
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Nedbank Limited v Hlongwane and Another (47312/2009) [2011] ZAGPPHC 39 (31 March 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 47312/2009
DATE:
31/03/2011
NEDBANK
LIMITED
............................................................................................................
Plaintiff
v
BENEDICT
THAMSANQA
HLONGWANE
..........................................................
First
Defendant
ZANDILE
ESME
HLONGWANE
.....................................................................
Second
Defendant
JUDGEMENT
SAPIRE,
AJ:
The
Plaintiff sued the Defendants claiming payment of the sum of R583
339.,82, being the balance of monies due owing and payable
by the
Defendants to the Plaintiff as at the 1 of July 2009 on two mortgage
bonds. The bonds hypothecated immovable property being
Erf 4141 of
the Orchards Extension 21 Township as first and second mortgage
bonds. The amounts claimed included capitalized interest.
Plaintiff
also claimed interest at the rate of 9.5 per cent per annum from the
2nd of July 2009. The Plaintiff asked that the court
declare the
mortgaged property executable. The defendants are husband and wife
who as principal debtor and surety respectively
borrowed the money to
acquire the property, which is their home.
The
Plaintiff alleged that it had complied with the provisions of Section
129 read with
Section 130
of the
National Credit Act, No 34 of 2005
.
The
Plaintiff lastly claimed costs to be taxed on the scale as between
attorney and client.
The
Summons was duly served. The Defendants after successfully opposing
an Application for Summary Judgment were granted leave to
defend.
They filed a Plea, in which they inter alia denied the contents of
paragraph 16 of the Declaration. In this paragraph it
was alleged
that in June 2009 the Plaintiff duly in terms of
Section 86(10)
of
the Act terminated the pending debt review by the defendants in
respect of the two bonds
The
Defendant admitted having received a letter in terms of
Section 129
but denied the other allegations in that paragraph. Of particular
importance is the content of paragraph 19 of the Plea, which
deals
with paragraph 17.4 of the Declaration in which it is alleged:
'The
Plaintiff has not approached the Court during the time the matter was
before a debt counsellor, alternatively a dispute resolution
agent,
Consumer Court or the Ombud with jurisdiction, in that inter alia the
Plaintiff terminated the debt review in respect of
the relevant
credit agreements as pleaded in paragraph 16."
Apart
from the general denial of indebtedness, the only defence on which
the Defendants rely is that based on the provisions of
Section 86
of
the
National Credit Act.
The
matter was enrolled for trial and a pre-trial conference was held.
Attending the conference, representing the Plaintiff, were Mr
F R van
den Heever, plaintiffs counsel, and Mr John Saunders its attorney.
Only the Defendant's advocate, Mr Manala, was present
representing
the Defendant
Plaintiffs
representatives put a series of questions to Defendants' counsel in a
Notice in terms of
Rule 37(4).
Defendants' counsel indicated that he
would revert to the Plaintiff in respect of the issues therein raised
by no later than close
of business on 9th February 2011. In the
event, the reply was only delivered on February the 14th. The parties
attended to other
housekeeping items at the conference.
The
Plaintiff s questions were wide ranging but Defendants' reply
indicated that the case was to be fought on the question of whether
payments made by Defendant through PDA and accepted as such by
Plaintiff constituted payment.
The
Minute of the Pre-Trial Proceedings was filed. At the hearing, both
Plaintiff and Defendants testified.
For
the Plaintiff the witness was Denise Naomi Hartley (Hartley). She was
an employee of the Plaintiff and described herself as
the Senior
Manager for Attorney Management and Terminations in the debt review
department of the Plaintiff Bank. The department
is referred to as
the Debt Recovery Services.
She
had access to the Plaintiffs records insofar as they are pertinent to
this matter. She then referred to documents in a bundle
with which
the parties provided the court. The bundle had its usual status
The
first was a Notice being a Form 17.1 received on the 6 of February
2009.This form tells the creditor to whom it is addressed
that the
debtor has made application to a debt counsellor for debt review.
According to her, the Plaintiff received no Form 17.2.
is the follow
up in which the debt counsellor informs the creditor whether the
application is to be acceded to and the proposal
for restructuring of
the debtor's indebtedness
She
referred to letters that Plaintiff sent to the debt counsellor on the
31st of March 2009 and again on the 14t!l of April 2009.
In these
letters, the Plaintiff asked the debt counsellor for a proposal to be
made on the Defendants behalf. According to her,
no such proposals
were received. She testified that as at the date of her testifying no
Form 17.2 had been received.
On
the 25* of May 2009 the Plaintiff sent out a Notice of Termination
which is not itself the termination in terms of 86(10). In
the letter
it is stated that the Plaintiff did not receive proof of payment or
some sort of correspondence from the debt counsellor
within ten days
the Plaintiff would terminate in terms of
Section 86(10).
Hartley
was unable to produce proof that this letter was sent out.
According
to the witness the actual Termination Notice in terms of
Section
86(10)
was sent on the 24t] of June 2009. The document was produced
and according to the witness it was sent electronically in accordance
with the practise operating between Banks and Credit Counsellors. In
terms of this Notice the Application for Debt Review lapsed.
The
witness then informed the Court that on the 29th of July 2009 a
Notice in terms of
Section 129
was sent to the Defendants. The
Plaintiff had no record that the letter was in fact sent.
The
Summons commencing this action was issued on the 5th August 2009 and
served personally on the Defendants on the 12th of August
2009.
On
the 13th of August 2009, the Plaintiff received a second Form 17.1
dated the 13th of August 2009, significantly the day after
the
service of the Summons.The witness was then asked whether the
Plaintiff had received any payments from the Defendants since
the
first application for debt review. She replied that the Plaintiff did
not receive any payments from February 2009 until August
2009.
Payment was made on the 13th of August 2009 being the day after the
service of Summons. The amount paid was R563,90. The
witness also
testified to a number of credits on the Defendants' account but
pointed out that these credits were later reversed
indicating that
the debit order was refused by the Bank concerned. The reason for
this was insufficient funds.
The
witness also indicated that a further payment in a nominal amount was
made on the 17th of August 2009, the amount being R237,
00. The next
payment of R6 147,83 was reversed. It also emerged that other
payments in insignificant amounts had been made and
appeared to have
been remitted by the distribution agent CPE. No arrangements were
made in respect of these payments and they were
certainly not made or
accepted with prejudice to the Plaintiffs rights.
There
was a further payment on the 17th of August 2010 in an amount of Rl
8011,80. Again this came from the Distribution Agent.
In September R5
334,41 was received and again in October a similar amount was
received. On the 24th of December 2010 another R4821,40
was received.
Further payments of R561,36 were received in December 2010 and
January 2011. These are the last payments that have
been received.
The witness pointed out that no letter or any sort of documentation
accompanied these payments or were received
referring thereto. The
payments were initially placed in a suspense account. Later they were
transferred to the accounts of those
persons who the Distribution
Agency indicated.
The
witness was then requested to comment on page 9 of the Bundle and
requested to identify the document. She recognised it as copy
of an
application to the Magistrates Court in respect of a debt
rearrangement. She was positive that the first time she saw that
document was on the morning of the trial in counsel's chambers. Such
a document was never received by the Plaintiff. The witness
stated
that she did not know of any order that the Magistrate could have
made. The date of the document was the 2nd of July 2009
and refers to
an application that would be made on the 5th of May 2010. Hartley
confirmed that since the first time that the Defendants
applied for
debt review in February 2009 until the dates of the hearing no
documentation whatsoever was received from the Defendants
debt
counsellor other than the Form 17.1 to which he referred. She was
positive that no proposal had been given to the plaintiffs
had been
submitted to the plaintiff, no Form 17.2's have been furnished, no
and she repeated that at no time was there any agreement
to any
proposal made by the debt counsellor.
Hartley
was cross-examined by Defendants' counsel but the essential facts to
which the witness deposed were undisturbed.
The
defendant gave evidence to support his case.
The
First Defendant testified that he applied for debt review at the
beginning of 2009. A week or so after the date of the application
the
debt counsellor informed him of the banking details of where he was
to deposit R7 360,00 per month. This account is that of
CPE which
apparently distributes monies received from debtors whose
indebtedness is under review.
Hlongwane
says that he paid the amounts on February 2009 until November 2010
when a change was made because the collector had some
difficulty. He
then made payments into a different account. He was not able to prove
what payments were in fact made by him. But
he claimed to be paying
this amount of R7 360,00 per month every month.
He
was unable to testify whether the Plaintiff received money from the
distributing agent. He referred to a time in 2009 when a
Sheriff came
to his house. Obviously because Plaintiff was not being paid. He
rushed to the debt counsellors and enquired from
them how this came
about as he had been paying every month. He received a reply that
there had just been a mis communication and
the distributing agency
had some problems and that it would be sorted out. He also confirmed
that this took place the day after
the Summons was served. The
Defendant claims that he has been paying until the present time.
Clearly
the Defendants' evidence does not accord with that of the Plaintiff.
There is nothing which emerged from the Defendants'
evidence to
establish that the Defendants was indeed under debt review and that a
magistrate had made an order as contemplated
in Section 86. The First
Defendant was the only witness called by the defence and the
counsellor and the distribution agency did
not testify as to what had
happened.
In
view of this the only defence raised by the Defendants cannot be
maintained. This will have very unfortunate results for the
Defendant
who seems not to have been well served by his legal advisors and by
the debt counsellor whom they consulted. The payments
which were
received by the Plaintiff have been taken into account but by
accepting such payments the Plaintiff has not compromised
its right
to proceed as provided for by the terms of the bonds.
There
is no evidence that any proposed restructuring of the Defendants'
debts was ever suggested to the Plaintiff. This is so notwithstanding
that there was a first notice of an application to the debt
counsellor which was apparently not proceeded with. The second
application
was made only after the Summons had been served and this
application was also not proceeded with in that no proposed
restructuring
was ever intimated to the Plaintiff. There is also no
evidence that any application to a Magistrate was served on the
Plaintiff
or that the Magistrate made any order.
Although
the Summons in paragraph 3 draws the Defendants' attention to Section
26(1) of the Constitution of the Republic of South
Africa, which
accords to everyone the right to have access to adequate housing the
Defendants have not placed information before
the Court that the
order for execution will infringe on that right.
This
is an instance where because the provisions of the
National Credit
Act have
not been followed, the defendant has been prejudiced.
Plaintiff
is therefore entitled to the relief claimed in the Summons.
Therefore
the order of the Court is:
There
will be judgment for the Plaintiff for the relief claimed in the
Summons namely
Payment
of the sum of R583 339,82;
Interest
on the said amount of R583 339,82 at the agreed rate of 9,5 per cent
per annum as from the 2nd of July 2009 to date of
payment;
The
mortgaged property, namely Erf 4141, The Orchards Extension 21
Township executable;
Costs
of the suit to be taxed as between attorney and client.
SAPIRE,
A J
ATTORNEYS
FOR THE PLAINTIFF:
Hack,
Stupel & Ross Standard Bank Chambers Church square
PRETORIA
ref:
DFRANCES/VS9343
COUNSEL
FOR THE PLAINTIFF:
F
R VAN DEN HEEVER
ATTORNEYS
FOR THE DEFENDANTS:
Baloyi
Mafuyeka Phalatse Inc
1
1 00 schoeman street HATFIELD, PRETORIA
TEL
012-342 7857 fax: 01 2-342 7299
Ref:
BMP00377/J BALOYI
COUNSEL
FOR THE DEFENDANTS: ADV MANALA