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[2012] ZAECPEHC 69
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Makaula and Another v Nedbank Ltd (1523/2012) [2012] ZAECPEHC 69 (14 September 2012)
7
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE, PORT
ELIZABETH
Case no: 1523/2012
Date heard: 14.9.2012
Order given:14.9.2012
In the matter between:
VUYANI MAKAULA
.................................................................................
First
applicant
SISANDA NDLUNGWANE
.................................................................
Second
applicant
vs
NEDBANK LIMITED
....................................................................................
Respondent
REASONS FOR JUDGMENT
TSHIKI J:
[1] Applicants herein
have instituted the present application on an urgent basis. However,
on perusal of the papers only the first
applicant has instituted the
proceedings and I say so for the reason that he is the only applicant
who has deposed to the founding
affidavit. In any event, having
regard to the respondent’s answering affidavit which contends
that the second applicant was
present in Court when the application
for judgment and for declaring executable the immovable property of
the applicants, there
can be no sense in second applicant’s
institution of the present proceedings.
[2] Having read the
certificate of urgency by applicants’ counsel on 13
th
September 2012, I ordered that the matter could be heard by way of
urgency.
[3] Respondent has
opposed the application and has filed its answering affidavit. No
replying affidavit was filed by applicant.
[4] After the case was
argued, I dismissed the application with costs and indicated that my
reasons for judgment would follow. What
next follows are my reasons.
[5] During argument Mr
Ahmed appeared for the applicants and Mr Marais represented the
respondent.
[6] The loan amount in
issue originates from a home loan mortgage bond granted in favour the
respondent for an amount of R486 000.00
together with finance
charges thereon in respect of immovable property being erf no 5960
Motherwell, Uitenhage within the jurisdiction
of this Court. First
applicant had chosen as his primary place of residence the immovable
property which is situate at no 56 Zingela
Street, Kwanobuhle,
Uitenhage. Therefore, it follows that the mortgaged property cannot
be the first applicant’s primary
residence.
[7] It is common cause
that applicant had both failed to pay the monthly instalments in
terms of the agreement an omission which
necessitated respondent to
take legal action against them. Respondent had in fact obtained
judgment against applicants which includes
an order declaring
executable the immovable property in issue. When the present
proceedings were issued the property in question
was to be sold by
public auction at 15h30 on 14
th
September 2012. The
present proceedings are the first applicant’s attempt to save
the property from being sold in execution.
[8] In his application
before me first applicant raises two issues which are:
[8.1] That the respondent
has not complied with the provisions of section 129 (1) of the
National Credit Act 34 of 2005 (the Act)
in that first applicant
never received the required notification letter in terms of section
129 (1) of the Act.
[8.2] That when
respondent instituted the legal proceedings against the applicants it
had no
locus standi
to sue because it had ceded its rights to
do so to another entity which has since settled the debt. For that
reason, respondent
has lost all rights, titles and obligations in
respect of the property.
[8.3] Thirdly, first
applicant contends further that respondent has illegally tempered
with the contents of their contract with
applicants in that the
available copy of the contract does not correctly reflect the
original terms of the agreement and that it
is a defective generated
copy of the original.
[9] In response to the
above allegations respondent has contended as follows.
[9.1] It has attached a
letter “LP1” written by Advocate Zietsman confirming that
second applicant who did not oppose
the application for default
judgment was present in Court on the date when default judgment was
granted.
[9.2] It has annexed
“LP2” and “track and trace” reports in
respect of all the four sections 129 (1) notices
despatched to both
applicants. The notices were despatched to both the Kwanobuhle and
Motherwell residential hubs of the applicants.
[9.3] That the Sheriff
had served both applicants personally with the notices in terms of
Rule 31(5) read with Rule 46(1) A (11)
relating to the immovable
property in question and this was on the 9
th
June 2012 at
20h12 at 56 Zingela Street, Kwanobuhle, Uitenhage as it is proved by
the copies of the returns of service of the notices.
[10] I may mention that
in his founding affidavit applicant avers that he did not receive the
notice of application to declare the
property executable because
during that period he was in Mthatha from March 2012 up to until he
came back on 23
rd
August 2012.
REASONS FOR JUDGMENT
[11] In terms of the rule
in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 620
(A), I have no reason to accept the bare denial of
the first applicant that he was never served with the Court papers in
this case
prior to 23
rd
August 2012. There is no merit in
his averments that all along he has not been aware that there is
Court action against him which
threatens to either recover the amount
due and/or to have the property sold in execution for the recovery of
the amount owed by
him to respondent.
[12] In the first place,
first applicant alleges that the respondent has ceded the debt to
another entity but this bald allegation
is not proved by facts. It is
a bare assertion which respondent has refuted outright. There is no
such proof by first applicant
and neither does he mention the name of
the party or entity that has paid the debt on behalf of the
applicants. There are no details
of this unsubstantiated cession of
debt. In my view, first applicant’s allegations in this regard
have not meaningful substance.
[13] Secondly, a personal
service to the first applicant of the notice in terms of Rule 31 (5)
read with Rule 46 (1)(A)(ii) informs
him that respondent will apply
for an order declaring executable the immovable property which is
specially hypothecated and being
the property in issue herein. No
steps were taken by the first applicant since 9 June 2012 when the
service was effected. The returns
of service in this regard have not
been challenged by applicants. The service of such writ was
sufficient to inform first applicant
that the property in issue was
under threat of being sold in execution. First applicant, however,
did not take action since then
and only now does he pretend to have
been ignorant of the intended sale of his property until he met his
current legal representative.
This, in my view, cannot be so because
the nature of the contents of the served documents was explained to
him by the Sheriff.
In such circumstances first applicant was
expected to have considered seeking legal advice or at least
approaching the respondent
or its attorneys. In any event, the return
of service refutes his allegation that he had been ignorant of the
Court proceedings
until 23
rd
August 2012. In any event,
even if he only became aware of the legal proceedings on 23
rd
August 2012, for him to only approach this Court on 14
th
September 2012, does not help him either because he only took action
23 days after he became aware of the Court proceedings.
[14] With regard to the
notice in terms of section 129 (1) of the National Credit Act 34 of
2005 (the Act), the requirement necessary
for its compliance is that
the credit provider “may draw the default to the notice of the
consumer in writing and make some
proposals to the consumer.”
In this case, the respondent informed first applicant of the
provisions of section 129 (1) of
the Act by sending letters to both
addresses of the first applicant, the one in Uitenhage at no 56
Zingela Crescent, Kwanobuhle,
Uitenhage 6242, as well as to the
alternative address at no 2 Chalumna Street, NU 5 Motherwell 6211.
The first address was specifically
chosen by the first applicant and
it is where the letter in terms of section 129 (1) of the Act was
sent by registered post. Annexures
“LP2a-d” containing
the track and trace reports prove that all four section 129 (1)
notices were dispatched to the
first and second applicants. The
letters reached both the Kwanobuhle and Motherwell places to which
they were posted by registered
mail. In my view, respondent has
sufficiently complied with section 129 (1) of the Act. Nothing more
is required of it by the Act.
In the present case there appears to be
no prospects that first applicant has the ability to repay the debt
owed which is the amount
of R544 255.52. As at 31
st
March 2012, applicants were in arrears of over 14 months amounting to
R60 029.63 which in my view was not a negligible amount.
According to the first applicant he cannot even pay fees for an
attorney let alone an amount in excess of R60 029.63 by which
he
was in arrears as at March 2012. The property in issue is the one in
terms of which the bond was taken by the applicants herein.
It does
not appear to me that the first applicant’s rights to adequate
housing would be infringed by the refusal of the orders
sought in the
form of staying the sale in execution. I say so because both
applicants have not demonstrated an ability to pay the
debt they owe
in respect of the property and for that reason respondent herein
would suffer irreparable harm if the order is granted.
This is also
demonstrated by the second applicant’s attitude in not
defending the application for default judgment. (
Standard Bank
of South Africa Ltd v Saunderson and Others
2006 (2) SA 264
(SCA)).
[15] For the above
reasons I could not be persuaded to grant the orders sought by first
applicant herein, hence I dismissed the
application with costs.
However, in view of the evidence contained in the papers that second
applicant does not appear to be involved
in the institution of the
present proceedings only the first applicant should pay the costs of
this application.
__________________________
P.W TSHIKI
JUDGE OF THE HIGH
COURT
Counsel for the first
applicant : Mr M.S. Ahmed
Instructed by : MSA
Attorneys
36 North Road
North End
PORT ELIZABETH
(Ref: Mr Ahmed)
Counsel for the
respondent : Adv P Marais
Instructed by : Pagdens
Attorneys
Pagdens Court
18 Castle Hill
Central
PORT ELIZABETH
(Ref: Mr
Vienings/hd/N0569/4421)