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
>>
2011
>>
[2011] ZAGPPHC 128
|
|
Standard Bank v Tripple SSS Security and Another (34068/2010) [2011] ZAGPPHC 128 (27 July 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
Case
Number: 34068/2010
DATE:27/07/2011
In
the matter between:
STANDARD
BANK
.................................................................................................
Plaintiff
vs
TRIPPLE
SSS
SECURITY
….........................................................................
First
Defendant
LESETJA
SIMON
RAMASHILO
.............................................................................
Second
Defendant
JUDGMENT
J
W LOUW, J:
The
plaintiff issued summons against the first and second defendants for
the return of a certain Nissan truck, payment of damages,
interest
and costs on the scale as between attorney and client.
The
plaintiffs claim arises from a written instalment sale agreement in
terms of which the plaintiff sold the truck to the first
defendant.
The second defendant bound himself as surety for the first
defendant's obligations to the plaintiff. It is alleged in
the
summons that the first defendant breached the agreement by failing to
make the agreed payments in terms thereof which breach,
in terms of
the agreement, entitled the plaintiff to claim the return of the
truck, damages and costs on the attorney and client
scale.
It
is alleged in paragraph 7 of the Summons that notice in terms of
section 129 of the National Credit Act. 34 of 2005 ("the
NCA")
was given to the "Defendant" and that Annexure "C"
is a copy of the notice. Annexure "C"
however consists of
notices in terms of section 129 which were sent to both the first and
second defendants.
The
Summons was issued on 11 June 2010. According to the Sheriffs*
returns of service the Summons was served on the first defendant
on
25 June2010 and on the second defendant on 23 June 2010.
The
defendants signed a notice of intention to defend on 11 August 2010.
which notice was then apparently faxed to the plaintiff
s attorneys
on 13 August 2010.
The
plaintiff thereafter served and filed a notice of application for
summary judgment for the relief claimed in the summons.
At
the hearing, counsel for plaintiff applied for summary judgment
against the defendants in terms of prayers 2 and 5 of the summons,
i.e. for the return of the truck and costs on the attorney and client
scale.
In
the defendants" opposing affidavit, it is alleged that after the
notice of intention to defend was served, the second defendant,
on 12
October 2010 consulted with a debt counsellor to make application for
a debt review in terms of the National Credit Act.
34 of2005. ("the
NCA").
It
was submitted on behalf of the plaintiff that the defendants are
precluded from relying on a debt review application in view
of the
provisions of Section 86{2) of the NCA.
Section
86(2) provides as follows:
"An
application in terms of this section may not be made in respect of.
and does not apply to. a particular credit agreement
if. at the time
of that application, the credit provider under that credit agreement
has proceeded to take the steps contemplated
in section 129 to
enforce that agreement."
I
will return to this argument later.
It
was further submitted on behalf of the plaintiff that the NCA does,
in any event, not apply to the agreement in question by virtue
of the
fact that the first defendant is a juristic person and that the
principal debt is an amount of R927 040.00. The plaintiff
relied in
this regard on the provisions of ss.4(l)(a) and (b) of the NCA. which
provide as follows:
"4.
Application of Act. - Subject to sections 5 and 6. this Act applies
to every credit agreement between parties dealing at
arm's length and
made within, or having an effect within, the Republic, except -
(a)
a credit agreement in terms of which the consumer is -
(i) a
juristic person whose asset value or annual turnover, together with
the combined asset value or annual turnover of all related
juristic
persons, at the time the agreement is made, equals or exceeds the
threshold value determined by the Minister in terms
of section 7(1);
(ii) the
state; or
(iii) an
organ of state:
(b)
a large agreement, as described in section 9(4), in terms of which
the consumer is a juristic person whose asset value or annual
turnover is, at the time the agreement is made, below the threshold
value determined by the Minister in terms of section 7(1)."
The
threshold value determined by the Minister for section 4(1 )(a) is Rl
million. The higher threshold determined by the Minister
for section
4(l)(b) is R250 000.00. There is no allegation or evidence in regard
to the first defendant's asset value or turnover.
Sections 4( 1 )(a)
and (b) can therefore not be relied upon by the Plaintiff.
It
must therefore be accepted that the NCA applies to the agreement in
question. If that is so. I agree with The argument on behalf
of the
plaintiff that the defendants are precluded by the provisions of
section 86(2) from relying on the second defendant's application
for
debt counselling. The second defendant first approached a debt
counsellor on 12 October 2010. but the plaintiff had already
proceeded to take steps in terms of Section 129 during May 2010.
Section 86(2) therefore precludes the defendants from relying
on the
application for debt counselling.
In
the result, the defendants have failed to disclose a bona fide
defence. Summary judgment is therefore granted against the first
and
second defendants jointly and severally, in terms of prayers 2 and 5
of the application for summary judgment
J
W LOUW, J
NORTH
GAUTENG HIGH COURT, PRETORIA
Plaintiffs
Attorney: S Roux Incorporated
Office
2/201
Office
Block No 2
Monument
Office Park
Cnr
Elephant- and Steenbok Street
Monumentpark
PRETORIA
Tel:
012-460 0666 Fax: 083 661-0175
Ref:
Mr F J Erasmus/HE0254/09
Plaintiffs
Counsel: Adv P I Oosthuizen
Tel:
012-303 7792 Cell No: 082 461 0545
First
and Second Defendants'
Attorneys: S
S MOGANO ATTORNEYS
641
Karlkling Building Vermeulen Street PRETORIA
Tel
No: 012-328 2601 Fax No: 086 653 4483 Cell No: 076 656 9363
Ref:
SOM18
First
and Second Defendants' Counsel: UNKNOWN