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South Africa: Free State High Court, Bloemfontein
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[2017] ZAFSHC 12
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Firstrand Bank Limited v Slabbert (5003/2016) [2017] ZAFSHC 12 (16 February 2017)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No: 5003/2016
In the
application between:
FIRSTRAND
BANK LIMITED
Plaintiff
and
ANNETTE
SLABBERT
Defendant
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
9 FEBRUARY 2017
DELIVERED
ON:
16 FEBRUARY 2017
[1] The
Plaintiff, Firstrand Bank Limited (“Firstrand”) issued
summons against the Defendant, Mrs Annette Slabbert (“Mrs
Slabbert”) on 20 October 2016 for
inter alia
payment in
the amount of R 443 883,72 and an order declaring an immovable
property known as Erf [1...], Bloemfontein executable.
After a notice
of intention to defend was filed by Mrs Slabbert, Firstrand moved for
summary judgment against her.
[2] It is
common cause that four written home loan agreements were concluded
between Firstrand and Mrs Slabbert on various dates
ranging from 2004
to 2012 pursuant thereto, four mortgage bonds were registered in
favour of Firstrand. According to Firstrand
the terms and conditions
of these loan agreements were breached by the failure of Mrs Slabbert
to pay the monthly instalment due,
as a result whereof the amounts
became due and payable.
[3]
Mrs Slabbert opposes the application on several grounds, averring
that she has a
bona fide
defence against Firstrand. She explains the reason for falling behind
with the monthly instalment and states that she applied for
business
rescue. The instalment on the property had always been paid for from
her spouse’s account. Firstrand cancelled the
debit order or Mr
Slabberts account, resulting in her falling in arrears unbeknown to
her.
[4] On 3
October 2016 Mrs Slabbert received an email from Firstrand,
indicating that the last payment received was on 11 June 2016
and the
account was in arrears in the amount of R 25 948,18. The
following day she receive a notice in terms of sec 129(1)
of the
National Credit Act 34 of 2005 (the “NCA”) indicating her
default in respect of in the said amount.
[5] Mrs
Slabbert paid an amount of R 26 000,00 on 28 October 2016 and
annexes proof of such payment. She avers that papers
were being
processed to have the plaintiff included in the debt review. Her
affidavit was attested to on 6 December 2016.
She avers that
some payment has also been made through the National Payment
Distribution Agency to effect payment to various creditors
and an
amount of R 3 985,22 was as paid to Firstrand.
[6] The
defences further advanced by Mrs Slabbert are
inter alia
in
respect of compliance (or non-compliance) by Firstrand with sections
129(1)(a), 129(2), 129(3) and 129(4) of the NCA. I
do
have my concerns whether the defendant has a
bona fide
defence
which is good in law. The notice of intention to defend was filed on
27 October 2016 and payment made two days thereafter.
The summons was
issued and quantified before these payments were made.
[7] For
purposes hereof the Defendant does not have to proof her defence and
I have to assume the correctness thereof at this stage.
Assuming the correctness thereof, the claimed amount cannot be
correct. By averring the payment of the R 26 000,00 Mrs
Slabbert’s
averment tantamounts to payment of the arrears
albeit late. Without detracting from my concerns stated above
regarding the defence
being good in law, I am not convinced that
Firstrand has an unanswerable case at this stage. The defendant has
supplied me with
sufficient information to convince me to exercise my
discretion in her favour.
[8]
Accordingly the following order will issue:
1.
The application for summary judgment is dismissed.
2.
Leave is granted to the Defendant to defend the action.
3.
Costs is to be in the cause.
________________
C.
REINDERS, J
On behalf
of the Plaintiff:
Adv. J. Els
Instructed by:
Rossouws Attorneys
BLOEMFONTEIN
On behalf
of the Defendant:
Adv. L. Collins
Instructed by:
Jordaan Rijkheer &
Partners Attorneys
BLOEMFONTEIN