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[2011] ZAGPPHC 106
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Changing Tides 17 (Pty) Ltd NO v McDonald and Another (22859/09) [2011] ZAGPPHC 106 (5 May 2011)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT. PRETORIA)
Case
No: 22859/09
DATE:05/05/2011
In
the matter between:
CHANGING
TIDES 17 (PTY) LTD
N.O.
..
................................................................
APPLICANT
And
ALEXADER
MCDONALD
..............................................................................
1
st
RESPONDENT
AUDREY
JANE
GOODSIR
..........................................................................
2
nd
RESPONDENT
JUDGMENT
MAVUNDLA,
J.
[1]
This is an opposed application for summary judgment against the
defendants, jointly and severally, the one paying the other
to be
absolved, for payment in the amount of R974, 343.69 together with
interest on the aforesaid amount calculated at the rate
of 16.10
percent per annum from 1 March 2009 to date of payment. The applicant
further prays for an order declaring executable
certain immovable
property Erf 352 Croydon Township, Registration Division I.R.
PROVINCE OF GAUTENG, MEASURING 992 SQUARE METRES,
HELD BY DED OF
TRANSFER NO T11981/07, as well as costs of suit on attorney and own
client.
[2]
The plaintiffs claim arises from moneys lent and advanced to the
defendants as borrowers. The loan was secured by a registered
bond
over the immovable property referred to herein above.
[3]
The defendants, in opposing the summary judgment application, proffer
as a defence, that the plaintiff has failed to remit to
them a letter
of demand in terms of s129(1) of the Credit Act, 34 of 2005. They
further contend that on 21 October 2008, they had
applied to Nicola
Bridgette Da Silva for debt review. In this regard they refer to
annexure "MG1", which was however
not attached to the
papers. They further allege that Da Silva prepared payment proposal
which was agreed upon by the plaintiff
and the defendants. They
further alleged that they made monthly payments in accordance with
the aforesaid proposal since December
2008.
[4]
The defendants also filed an affidavit of Ms Da Silva who confirmed
the debt review process. According to Ms Da Silva, on 11
June 2009
the defendants signed affidavits in terms of section 86(7) to be
lodged in the Magistrate' Court but she delayed in the
lodgement
thereof. She takes responsibility for the delay. She had given notice
to bring the s86(7) application to Stadler attorneys
on 7 November
2008 to bring the application but it was not done. She further stated
that the respondents have complied with her
restructuring and
therefore believes that that there are good prospects of success of
an order being granted in terms of s86 and
refer this Court to
s130(3)(cc).
[5]
The only way the respondents can successfully avoid summary judgment
being granted against them, is to satisfy the court that
they have a
bona fide defence to the action. They must disclose fully the nature
and grounds of the defence and the material facts
relied upon.
1
[6] With regard to the
defendants
'
defence that the plaintiff did not comply with
s129
2
,
I am of the view that there is no substance in this submission. The
chosen domicile citandi et excutandi address of the defendants
is 37
Jacoba Loots Road, Croydon, Kempton park, Gauteng.
3
The plaintiff remitted per registered post a letter dated 4 March
2009 to the defendants' aforesaid domicile citandi. In the said
letter, the defendants were informed that the plaintiff had not
received a debt restructuring proposals and the debt restructuring
has not been agreed upon. They were further advised that the 60
business days from which the consumers applied for debt review
have
lapsed, and that the notification that the matter has been referred
to court has not been received.
4
In the said letter the defendants were informed of the plaintiffs'
termination of the debt review and the reason thereof. In my
view,
once the plaintiff informed the respondents of the termination of the
debt review, it was not necessary that another separate
letter in
terms of section 129 be sent because it would have been superfluous
5
.
[7]
In the matter of
JNO. G Teale & sons Ltd v Vrystaatse
Plantediens Ltd
:
"In the
circumstances it seems to me that one should in the case of an
irregularity of the kind I am dealing with look at the
purpose of
Rule 32, viz.
that a defendant who has no defence should pay the
Plaintiff's claim and should not be able to shield behind a technical
irregularity
as to the procedure prescribed by Rule 32(3) which is
entirely in his discretion and at his option
6
(my emphasis). The fact that a letter in terms of s129 has not been
sent, in the light of the remission of the letter of termination
of
the debt review would be too technical and should not be permitted.
The provisions of the Credit Act should not be a sanctuary
to hide
behind for defendants who do not have any defence to the plaintiff's
action.
[8]
The defendants have attached annexure AMG7. This is an affidavit
deposed to by the applicants on 11 June 2009 filed at the
Magistrate's Court, Germiston in respect of their debt review
application. The summons were, however, issued on 17 April 2009. The
debt review at the Magistrate's Court was in my view, a belated
action which cannot stand in the way of the duly issued summons.
[9]
The defendants do not dispute their indebtedness to the plaintiff in
the amount claimed. Neither do they proffer any defence
to this
claim. I am therefore of the view that the plaintiff is entitled to
the summary judgment application.
[10]
The plaintiff also seeks an order in terns of which the immovable
property is declared executable. However, in my view, the
plaintiff
has not made a case for this order. There is no evaluation of the
property placed before me. An order for execution of
immovable
property is in my view not there for a take. Immovable property is a
pricy commodity for the defendants. It must also
have further
appreciated from 2007.
There
has been no evidence presented before me regarding the movable
properties of the defendants and whether these would not
substantially
reduce the capital amount claimed. I am therefore
disinclined to order executable the immovable property of the
defendants.
[11]
In the result I make the following order:
1. That summary judgment
is granted against the defendants, jointly and severally, the one
paying the other to be absolved for:
1.1 Payment in the amount
of R974, 343.69 together with interest on the aforesaid amount
calculated at the rate of 16.10 percent
per annum from 1 March 2009
to
date of payment.
1.2 Costs of this
application on attorney and client scale.
N.MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT : 05/05/2011
APPLICANT'S
ATT : VELILE TINTO & ASS.
APPLICANT'S
ADV : ADV W J ROOS
RESPONDENT'S
ATT : NEIL KAPLAN ATT
RESPONDENTS ADV
1
Vide
Moharaj v Barclays Bank Ltd
1976
(I) SA 418 (A) at 426AB.
2
Act
34 of 2005.
3
Paginaed
page 36 clause
1
0.
1
of
the loan agreement between the parties, attached to the summons.
4
Paginated page 49-5
1
is
the relevant letter titled Application for debt review of section 86
of the national credit Act, together with copies of the
registered
slips showing the address of the defendants' chosen domicile
address.
5
Vide
BMW Finacial Services (Pty) Ltd v Donkin
2009 (6) SA 63
(KZD)
6
1968(4)SA
371 A at 374 G -
H.