About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2012
>>
[2012] ZAECPEHC 87
|
|
Nedbank Ltd v Busakwe and Another (2578/2012) [2012] ZAECPEHC 87 (5 December 2012)
7
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE –
PORT ELIZABETH)
Case No: 2578/2012
In the matter between
NEDBANK LIMITED
..................................................................
Plaintiff
and
NDUMISO MALCOLM
BUSAKWE
.....................................
First
Defendant
NOMVUYO GLADYS
BUSAKWE
...................................
Second
Defendant
JUDGMENT
REVELAS J
[1] The plaintiff
instituted an action against the two defendants who are married in
community of property, based on a credit agreement
(home loan)
entered into in 2007. A mortgaged bond was registered over the
defendant’s immovable property, which is also
their primary
residence, during April 2007, to secure the aforesaid loan.
[2] In terms of the
loan agreement, the plaintiff advanced the sum of R150 000.00 to
the defendants and their monthly repayment
instalments together with
finance charges amounted to R1600.00 per month
[3] The defendants fell
in arrears with their monthly instalments and as at 1 August 2012,
they were in arrears with four monthly
instalments.
[4] A notice in terms
of section 129(1) of the National Credit Act No 34 of 2005 (the Act)
was delivered to the second defendant
on 18 June 2012. Summons was
issued on 8 August 2008. On 12 September 2012 the defendants noted an
appearance to defend and the
applicants brought the present
application for summary judgment for payment of the amount claimed,
being R136 789.20, plus
interest thereon at the rate of 8.5
percent per annum, and an order declaring the property hypothecated
under the mortgage bond,
executable.
[5] The original loan
agreement was misplaced by the plaintiff’s attorneys and an
explanatory affidavit to that effect was
deposed by Mr Vienings of
the plaintiff’s attorneys of record.
[6] In the summons
commencing the enforcement proceedings, the plaintiff alleged that
the loan agreement was not subject to any
debt-restructuring order or
process in a court. On 25 May 2012 the plaintiff had issued a notice
to the first defendant terminating
“
Credit Agreement(s) for
Debt Review in terms of section 86(10) of the [Act]”.
The
first defendant had obtained a debt-arrangement order in the
Magistrate’s Court on 10 December 2008. According, to the
first
defendant, Ms Govender, his new debt counsellor, applied for a
variation of the debt arrangement order in April 2012.
[7] The first defendant
alleged that the plaintiff’s attempt to terminate the debt
arrangement in terms of section 86(10)
of the Act (dated 25 May 2012)
was only served on the first defendant, and therefore “defective”.
The defendants also
allege that despite an order of Beshe J, the
section 86(10) notice in question was never served on the second
defendant as ordered,
and that the plaintiff is therefore in contempt
of the order. On 30 October 2012, the relevant documents were however
served on
the defendant’s new debt counsellor.
[8] It appeared that
the plaintiff was never cited in the debt-arrangement order of the
Magistrate’s Court, referred to above.
During August 2012 a
candidate attorney of the plaintiff’s attorney of record,
deposed to an affidavit in the Magistrates
Court, and drew the
Magistrate’s attention to the fact that the plaintiff was
excluded from the debt review proceedings,
by virtue of it not being
cited in those proceedings.
[9] In my view, the
service of the section 86(10) notice on only one of the defendants
was not fatal, since they were parties to
the debt arrangement
application in the Magistrate’s Court and there was no
indication that they lived separately.
[10] In any event, even
if there was a debt arrangement agreement or order in place, the
defendants were nonetheless in breach thereof
because they did not
comply with such an agreement order in that no payments were made in
April, May and June 2012. According to
the first defendant, Ms
Govender applied for a variation of the order only in April 2012 and
the matter was heard again in the
Magistrate’s Court on 24
August 2012.
[11] The plaintiff’s
section 86(10) notice to the first defendant was dispatched on 25 May
2012 and further payments were
only made in July, August and
September 2012.
[12] The first
defendant alleges there was also no proper service of the notice in
terms of
section 129
of the
National Credit Act. This
allegation is
not substantiated.
[13] The plaintiff was
also by virtue of the provisions of
section 88(3)
of the
National
Credit Act, entitled
to enforce the agreement.
[14] There is no merit
in the defendants’ proposition that because the original loan
agreement had been mislaid, there is
no agreement. The defendants had
since the conclusion of the loan agreement in 2007, acted in
compliance therewith, until they
fell in arrears, which is an
indication that they were indeed parties to the agreement. This
belated defence is at best opportunistic
and has no merit.
[15] Ms Govender, the
defendant’s debt counsellor, was also the advocate who appeared
on their behalf in this court. She was
also the applicant for the
debt-arrangement of the defendants in the Magistrate’s Court.
Ms Govender filed an explanation
for the late delivery of her heads
of arguments and of the defendant’s opposing papers. The
explanation filed by her was
not contained in a proper condonation
application. However, I proceeded to deal with the matter on the
merits, since the plaintiff
was understandably not amenable to a
further postponement.
[16] For the above
considerations, the defendants were unable to persuade me that they
had a
bona fide
defence.
[17] In the result I
make the following order:
[18] Summary Judgment
is granted in the following terms:
The defendants are
liable to pay the plaintiff the sum of R136 789.20, jointly and
severally, the one paying the other to
be absolved.
Interest is to be paid
on the aforesaid amount, at the rate of 8.5 percent per annum as
from 2 August 2012 to date of payment.
The following
immovable property is declared executable:
Erf 2752 Motherwell, in
the Nelson Mandela Metropolitan Municipality, Division of Uitenhage,
Province of the Eastern Cape, in extent
162 (One Hundred and Sixty
Two) square metres Held by Deed of Transfer No. T2367/1995
The defendants are
jointly and severally liable for the plaintiff’s costs of suit
as between attorney and client, the one
paying the other to be
absolved.
____________________
E REVELAS
Judge of the High Court
Counsel for the
Plaintiff: Adv Zietsmann
Instructed by: Pagdens
Attorneys
Counsel for the
Defendant’s Adv Govender
Instructed by: MSA
Attorneys
Date Heard: 4 December
2012
Date Delivered: 5
December 2012