Firstrand Bank Ltd v Bernardo and Another (608/09) [2009] ZAECPEHC 19 (28 April 2009)

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[2009] ZAECPEHC 19
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Firstrand Bank Ltd v Bernardo and Another (608/09) [2009] ZAECPEHC 19 (28 April 2009)

IN THE HIGH COURT OF
SOUTH AFRICA
(
EASTERN
CAPE - PORT ELIZABETH
)
CASE
No. 608/09
NOT
REPORTABLE
In
the matter between:-
FIRSTRAND
BANK LTD
Plaintiff
and
MARK
BERNARDO
First Defendant
JACOMINA
MADALEEN BERNARDO
Second Defendant
JUDGMENT
Van
der Byl, AJ:-
[1]
On 26 September 2007 the Plaintiff, Firstrand Bank Ltd, granted a
home loan to the Defendants who are married in community
of property.
Security for this loan was provided by way of a mortgage bond
registered over the immovable property known as Erf
3029, Parsons
Vlei, situate at 5 Jannis Street, Chade Manor, Bridgemead, Port
Elizabeth, held by the Defendants under Deed of Transfer
T
92703/2007. In terms of the home loan agreement the Defendants
undertook to repay the amount due by way of monthly instalments
and
agreed that should they be in default of such instalments the
Plaintiff may in its discretion claim immediate repayment of
the full
outstanding balance or terminate the agreement upon which all amounts
owing by the Defendants shall forthwith be payable
in full.
[2]
On the Defendants having fallen in arrears on their instalments, the
Plaintiff on 10 March 2009 issued summons against the
Defendants in
which it claims -
(a)
payment of the amount of R639 821,29, being the full outstanding
amount of the Defendants’ indebtedness at that stage;
(b)
payment of interest on that amount, calculated and compounded
monthly, at the rate of 14,8 per cent per annum with effect from
1
February 2009 to 9 February 2009 and at the rate of 13,8 per cent
with effect from 10 February 2009 to date of payment;
(c)
an order declaring the immovable property concerned executable as
agreed in clause 4.29 of the home loan agreement by the Defendants;

and
(d)
costs of suit.
[3]
The Defendants, however, entered appearance to defend the action,
whereupon, the Plaintiff filed an application for summary
judgment.
[4]
In their affidavit filed in opposition to the application for
summary judgment the Defendants raise to issues, namely -
(a)
that the Plaintiff never complied, as is alleged in the Plaintiff’s
summons, complied with the provisions of section 129
and 130 of the
National Credit Act, 2005 (Act 34 of 2005) (“
the Act
”);
and
(b)
alternatively and in the event of this Court holding that those
sections have been complied with, that the matter has been
referred
to a debt counsellor in terms of section 85 of the Act who found
them to be over-indebted as provided in section 86(7)(c)
of the Act.
[5]
Mr Scott who appeared on behalf of the Defendants submitted,
correctly in my view, that neither of these issues constitute
a
defence on which the Defendants can be granted leave to defend the
action instituted by the Plaintiff.
[6]
However, should it appear, as alleged, that no notice envisaged in
section 129 of the Act has been delivered to the Defendants
the
Court must adjourn the matter and make an appropriate order setting
out the steps the credit provider must complete before
the matter
may be resumed.
[7]
It would appear that a dispute, based on a bald allegation by the
Defendants, exist between the parties as to whether a notice

envisaged in section 129 of the Act has, as averred in the summons,
indeed been “
delivered
” to the Defendants which may,
should it be held that no such notice had been delivered, entitle
the Defendants to an order,
as claimed by them in their alternative
contention, in terms of section 85 of the Act,
inter alia
,
referring the matter to a debt counsellor.
[8]
It follows that the Defendants are not really seeking leave to
defend the action in relation to their indebtedness, but are
in
effect seeking a postponement of the matter in terms of section
130(4) of the Act so as in effect to afford the Plaintiff
the
opportunity to comply with section 129 of the Act or, should I hold
that Plaintiff complied with the provisions of section
129 of the
Act, to make an order envisaged in section 85 of the Act.
[9]
I am accordingly not faced with a matter where I should determine,
as required by Rule 32, whether the Defendants have a
bona fide
defence in relation to their indebtedness as claimed in the summons,
but am indeed faced with a different issue, namely, compliance
with
the provisions of the Act which do not constitute a defence to the
Defendants’ indebtedness.
[10]
It is under these circumstances that I have been requested to allow
the Plaintiff to file a further affidavit dealing with
that issue
which falls, strictly speaking, outside the ambit of the provisions
of Rule 32 which in effect precludes a plaintiff
in sub-rule (4)
from filing,
inter alia
, a replying affidavit or adducing any
further evidence (
Nepet (Pty) Ltd v Van Aswegen's Garage
1974
(3) SA 441
(O)
;
M.A.N. Truck & Bus (SA) (Pty) Ltd
v Singh and Another 1976(4) SA 264 (N) at 265F
).
In
my view it would be unnecessary and unfair to require the Plaintiff
to go to trial on the issues raised in the affidavit filed
in
opposition to the application for summary judgement since they do
not disclose any defence in relation to their indebtedness.
I
accordingly allowed the Plaintiff to file a further affidavit
dealing with the issues raised in the Defendants’ opposing
affidavit.
[11]
In Plaintiff’s further affidavit, so admitted, it is contended on
behalf of the Plaintiff -
(a)
that, although the Defendants elected in clause 4.34 of the home
loan agreement an address described as “
Jannes Street, Chade
Manor, Bridgemead, Port Elizabeth 6025
” for all communications
and services of notices in respect of any legal proceedings which
may be instituted by virtue of that
agreement, the required notice
in terms of section 129 of the Act dated 2 February 2009 (
Annexure
JCR 1
) was forwarded by registered post to the Defendants at “
5
Jannis Close, Bridgemead, Port Elizabeth 6025
";
(b)
that, apart from the fact that the Plaintiff’s attorney of record
had established from the Municipality that that is the
correct
street address of the mortgaged property described in the mortgage
bond as “
Erf 3029, Parsons Vlei
”, the Defendants indeed
received and accepted service of the summons at that address.
[12]
In terms of section 130(1)(a) of the Act a credit provider may
approach the court for an order to enforce a credit agreement
only
if at the time the consumer is in default and has been in default
for a period of at least 20 business days and at least
since 10
business days have elapsed since the credit provider “
delivered
”
a notice to the consumer as contemplated in,
inter alia
,
section 129(1) of the Act which is in this matter the applicable
section.
[13]
In terms of section 65(1) of the Act any document required to be
delivered to a consumer in terms of the Act must be delivered
in the
manner as prescribed by regulation. In terms of regulation 1 of the
regulations published by Government Notice R489 in
Government
Gazette of 31 May 2006 the expression “
delivered
” is
defined as follows:
“
'delivered'
unless otherwise provided for, means sending a document by hand, by
fax, by e_mail, or registered mail to an address
chosen in the
agreement by the proposed recipient, if no such address is
available, the recipient's registered address......;
”.
[14]
If the notice was, as is contended by the Defendant, not received
by the Defendants, it does not mean that it was in the
circumstances
not delivered (see: unreported judgment delivered on 3 April 2009 in
Marimuthu Munien v BMW Financial Services (SA) (Pty) Ltd and
Another
under Case No. 16103/08 in the KwaZulu-Natal Local
Division, p. 9, para [15] and
section 7 of the Interpretation
Act, 1957 (Act 33 of 1957)
).
[15]
It, furthermore, appears that the Plaintiff’s attorneys telefaxed
a copy of the notice,
Annexure JCR 1
, to Defendants’
attorneys on 16 April 2009 together with proof of registered posting
thereof.
[16]
I am in the circumstances satisfied that the Plaintiff complied
with the legal requirements laid down in section 129(1)
of the Act
and that, in any event, the postponement of the matter so as to
afford the Plaintiff an opportunity to again comply
with the
provisions of that section would serve no purpose and would
unnecessarily delay this matter.
[17]
This brings me to the Defendants’ alternative request, namely,
that the matter be referred in terms of section 85 of the
Act to a
debt counsellor so that the home loan agreement can be included
under the debts currently subject to the debt review
process.
[18]
This raises the question whether I should exercise my discretion by
grating an order in terms of that section (see: unreported
judgment
delivered on 8 May 2008 in
Firstrand Bank Limited v Shane
David Olivier
under Case No. 2369/07 in this Division, p.
16, para [20]).
[19]
In terms of section 85 of the Act the court may in proceedings
where it is alleged that the consumer is over-indebted -
“
(a) refer
the matter directly to a debt counsellor with a request that the
debt counsellor evaluate the consumer's circumstances
and make a
recommendation to the court in terms of section 86 (7); or
(b) declare
that the consumer is over_indebted, as determined in accordance with
this Part, and make any order contemplated in
section 87 to relieve
the consumer's over_indebtedness.”.
[20]
As is apparent from the Defendants’ affidavit filed in support of
their opposition to the application for summary judgment,
they
disclose no information on the allegation that they have been
assessed to have been over-indebted or any information on
the nature
of their over-indebtedness or their gross or nett monthly incomes
[21]
I am accordingly unable, because of a lack of relevant information,
to exercise my discretion in favour of the Defendants.
[22]
In the result the Plaintiff is granted summary judgment in terms of
prayers (a), (b), (c) and (d) of the Notice of Application
for
Summary Judgment.
...............................
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF APPLICANT
ADV P W A SCOTT
On
the instructions of:- SPILKINS
15
Rink Street
PORT
ELIZABETH
Ref
: J C Rubin/lg
Tel:
(041) 582 1705
ON
BEHALF OF FIRST RESPONDENT ADV D A SMITH
On
the instructions of: J R BESTER & ASSOCIATES
70
Worraker Street
Newton
Park
PORT
ELIZABETH
Ref:
S Beukes/lf
Tel:
(041) 365 5523
DATE
OF HEARING 21 April 2009
JUDGMENT
DELIVERED ON 28 April 2009