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[2011] ZAGPPHC 41
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SA Taxi Securitisation (Pty) Ltd v Skosana (49609/10) [2011] ZAGPPHC 41 (31 March 2011)
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NOT REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case Number: 49609/10
DATE: 31/03/2011
SA
TAXI SECURITISATION (PTY)
LTD
........................................................................
vs
SKOSANA,
MQOTHWA
SETIE
................................................................................
Application
for summary judgment Coram Sapire AJ
JUDGMENT
This
is an application set down for the 8th of February 2011 as an
unopposed matter. At the hearing opposition was offered and an
Affidavit had been filed on the 4th of February 2011. The action was
commenced by the service of Summons in which it was alleged
that the
Plaintiff, a registered credit provider in terms of the
National
Credit Act 34 of 2005
, had entered into a Lease Agreement with the
Defendant who was accordingly a consumer in terms of the Act.
The
Lease Agreement provided for the Defendant to take a vehicle on hire
and to make payment of amounts detailed in the Summons.
The payments
were to be made after the conclusion of the Agreement over a period.
The Agreement also made provision for the Plaintiffs
rights on
default by the Defendant in the observance of its obligations under
the Agreement. The Defendant did indeed breach the
Agreement by
failing to pay the rental due in terms of its terms, resulting in
that on the 4th of August 2010 he was in arrear
with his payments to
the extent of R28 804,47.
In
the Summons it is also alleged that the Defendant applied to have
himself declared over indebted as contemplated in
Section 86(1)
of
the
National Credit Act. The
outcome of this was that the debt
counsellor delivered to the Plaintiff a notice as contemplated in
Section 86(4)(b)
(i) of the Act (Form 17.1) on the 4Ih of May 2010.
This
Notice was followed by one received by the Plaintiff on the 11th of
May 2010 in which the debt counsellor proposed a rearrangement
of the
Defendant's obligations. This Notice is Form 17.2. According to the
Summons the next step taken was that on the 10m of August
2010 the
Plaintiff gave Notice to the Defendant, the debt counsellor and the
National Credit Regulator in the prescribed manner
of its intention
to terminate the debt review in terms of
Section 86(10)
of the Act.
No mention is made in the Summons of any application made by the
Defendant to the appropriate Court in terms of
Section 86(7)(c).
In
the Affidavit which the Defendant as Respondent in this matter,
filed, there is an Annexure marked "B” which appears
to be
a Notice of Application in terms of
Section 86
of the
National Credit
Act. The
application is addressed to the Magistrate Court,
Johannesburg giving notice that the application would be made on the
12th of
October 2010. The Notice is dated the 8th day of June 2010.
This
would seem to indicate that Plaintiffs Notice terminating the debt
review was given at a time when an application was already
pending
before the appropriate court. In terms of a judgment in West Bank vs
Papier and another, a case before the Full Court of
the Western Cape
High Court, delivered on the Is' of February 2011 it was held that
the consumer is protected against enforcement
proceedings by the
Credit Provider not only once a rearrangement order has been made by
a Magistrate in terms of
Section 87
but also while proceedings for
such an order are pending.
In
view of this decision and would not be correct to grant Summary
Judgment in this case.
In
the case cited the order made was that the Application for Summary
Judgment be stayed pending a final determination of the proceedings
before the Magistrate.
As
the date for hearing of the application to the Magistrate in the
present case was due to be heard on the 12th of October last
year
such an order would be of little purpose in the present case. The
papers do not reveal the outcome of the application.
The
order I therefore make is:
The Respondent is given Leave to
Defend;
The
costs are to be costs in the cause;
The
Respondent is to file a Plea within 7 (seven) days from date of this
order and
The
Applicant may approach the Deputy Judge President of this Court for
an early trial date.
SAPIRE,
A J
Plaintiff's
Attorneys: Marie-Lou Bester Inc
ref:
mlb/ZB/53668 C/O R Swaak Attorneys
1
244 Woodlands
Drivequeenswood
PRETORIA
Ref:
RSW/wl/
Tel:
(011) 4860775
PLAINTIFF'S
COUNSEL: ADV J H MOLENTZE
DEFENDANT'S
ATTORNEYS: BALOYI MAFUYEKA PHALATSE INC
1
064 schoeman STREET HATFIELD,
PRETORIA
Tel:
012-342 7178/7857
ref:
J BAL/MM/BMP01 124
DEFENDANT'S
COUNSEL: ADV