About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 25
|
|
Standard Bank of South Africa Ltd v Janse van Rensburg and Another (3418/2015) [2016] ZAFSHC 25 (18 February 2016)
IN
THE
HIGH COURT
OF
SOUTH
AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
No. :
3418/2015
In
the application between:-
STANDARD
BANK OF SOTH AFRICA
LTD
PLAINTIFF
and
ROELOF
ABRAHAM
JANSE
VAN
RENSBURG
1
st
DEFENDANT
SUSAN
FRANCINA
JOHANNA
JANSE
VAN
RENSBURG
2
nd
DEFENDANT
JUDGMENT
B
Y:
MOLOI, J
HEARD
ON:
04 FEBRUARY 2016
DELIVERED
O
N:
18 FEBRUARY 2016
[1]
This is an application for summary judgment by the plaintiff against
both the defendants. The application is opposed by both
the
defendants, the second defendant deposing to the affidavit as
required by Rule 32(3)(b) of the Uniform Rules of Court and the
first
defendant confirming.
[2]
The opposition to the application is not addressing nor contesting
the defendant's liability to the plaintiff nor the merits
regarding
their indebtedness to the plaintiff nor their failure to perform in
terms of the credit agreement with plaintiff. The
opposition is based
on technicalities such as a challenge to the lack of personal
knowledge of the matter attributed to the deponent
of the plaintiff s
affidavit on which the application is based and the defendant's
disputes having received the notice in terms
of which the debt review
process they had initiated as required by
Section 86(10)
of the
National Credit Act No 34 of 2005
was terminated.
[3]
THE KNOWLEDGE OF
THE FACTS BY
THE
DEPONENT.
Rule
32(2) of the Uniform Rules of Court require that the notice of
application for summary judgment should be accompanied by an
affidavit by the plaintiff personally or by any other person who can
swear positively to the facts verifying the cause of action
and the
amount, if any, claimed and stating that in his opinion there is no
bona
fide
defence to the action and that
the notice of intention to defend has been delivered solely for the
purpose of delaying the finalisation
of the matter. In this case the
plaintiff is described as the Standard Bank of South Africa Limited,
a company registered as a
commercial bank in terms of the laws of the
Republic of South Africa with registered office situated at Standard
Bank House, 6
Simmonds street, Johannesburg Gauteng. In the nature of
things a company cannot make an affidavit hence only one or other
functionary
or employee of the company can do so.
[4]
In this case Tato Tebogo Phiri, (Phiri) a Manager, Specialized Legal,
Personal and Business Banking Credit division of the plaintiff
deposed. Phiri confirm authorisation by the plaintiff to depose; he
confirms and verify that through his position he had access
to all
the records and information in possession of the plaintiff pertaining
to the matter; that he has perused the records in
his possession and
acquainted himself with the facts contained therein and as such those
facts and information are within his direct
knowledge and can swear
positively to the facts and can verify the cause of action and the
amount claimed in the summons.
[5]
The complaint raised by the defendants that the said Phiri is not
competent to depose to the affidavit supporting an application
for
summary judgment cannot hold water as he has laid a basis for his
knowledge of the facts relevant to a successful claim by
the
plaintiff. In
Rees and Another
v
Investec
Bank
Ltd
2014 (4) SA 220
(SCA) at 220 G,
224E it was stated that ''.4
verifying
affidavit
for
summary judgment
deposed
to
by
a
deponent
of
a
corporation
need
not
have
first-hand
knowledge
of
every
fact
compromising
corporations
cause of action".
In
Van Niekerk & Other:
Summary
Judgment:
A
Practical
Guide.
Pages 5 to 15 it is stated
that it is not necessary for a deponent to supply reasons for the
allegation that the facts fall within
his personal knowledge but
he must at least give an indication of his office to support the
inference that he has had the
opportunity to obtain personal
knowledge of the facts he verifies. In this case I am satisfied
that the deponent had provided
more than sufficient reasons why he
could attest to the facts in his
capacity
as a manager: Specialised Personal
and Business Banking in the Credit division of the plaintiff.
[6]
NON-COMPLIANCE WITH THE REQUIREMENTS OF SEC 86(10)
The
real complaint the respondents have is the alleged failure of the
plaintiff to give them notice of termination of the debt review
process in terms of
section 86
(10) of the
National Credit Act No 34
of 2005
. When the credit provider seeks to cancel the debt review
process it is required to give notice to the defendants, the debt
councillor
and the National Credit Regulator. The plaintiff
dispatched the termination notice to the address stated in the loan
agreement
to be the address at which all notices must be sent, being
11 Georges Court, 81 Commissioner Street, Bethlehem, 9701. The
defendants
contend having advised the plaintiff that their address
had changed to that of the bonded property being 24 Pres Steyn
Street,
Morelig, Bethlehem 9700 as per form 17.1 sent to the
plaintiff by the defendants debt counsellor. This was done in terms
of paragraph
22.3 of the loan agreement requiring to be informed of
any change of address for delivery of notices. The notice of
termination
of debt review was sent per registered post to the
agreement address on 24 June 2015. Summons was served at the same
address being
11 Georges Court, 181 Commissioner Street, Bethlehem on
3 August 2015. The defendants entered appearance to defend on 21
August
2015 giving their address as 11 Georges Court, Commissioner
Street, Bethlehem, being the same address the termination notice was
sent to in June 2015. In my view the notice was properly delivered.
[7]
The relief sought by the plaintiff includes the declaration that the
bonded property namely Erf 1723 Bethlehem (Extention 19),
District
Bethlehem, Free State Province in extent 1489 (One Thousand Four
Hundred and Eighty Nine) square metres held by Transport
NR
T6369/2014 be declared specially executable. This being the
residential property of the defendants, I am of the view that the
order sought can be followed up in the ordinary course summary
judgment being such a drastic measure.
[8]
As a result the following orders are made:
8.1
Summary judgment application is granted.
8.2
The defendants are ordered to pay the amount of R626
654.51;
8.3
The defendants are ordered to pay interest on the above
amount at the
rate of 10.22% per annum calculated from 6 July 2015 till date of
payment.
8.4
The defendants are ordered to pay the costs of the action.
8.5
The defendants are ordered to pay the costs of the summary
judgment
application.
__________________
K.
J. MOLOI. J
On
behalf of the plaintiff:
Adv. VAN DER MERWE
Instructed by:
MCINTYRE VAN DER POST
BLOEMFONTEIN
On
behalf of the defendant:
Adv. ELS
Instructed by:
VAN DER HOVEN ATTORNEYS
BLOEMFONTEIN