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2016
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[2016] ZAGPPHC 882
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Ex Parte Matthew and Another (41680/2016) [2016] ZAGPPHC 882 (22 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 41680/2016
22/9/2016
In
the matter between:
CHARLES
FREDRICK
MATTHEW
Applicants
MATHILDA
LOUISA MATTHEWA
JUDGMENT
MBONGWE
AJ;
[1]
The applicants, a couple married in community of property, seek the
following order: that the surrender of the estate of the
Applicant be
accepted and the estate be placed under sequestration in the hands of
the Master of The High Court.
[2]
As the basis for this application, the applicants state thus in
paragraph 6 of the founding affidavit
"6. Ons het as gevolg van
omstandighede buite ons beheer en sonder enige bedrog aan ons kant,
insolvent geraak en ons is inderdaad
tans insolvent."
The
deponent goes further to allege that he is the breadwinner in his
family and that his wife is unemployed. He ascribes his financial
woes to the fact that "my werkgewer (het) my werkure verminder
nawee moelike finansiele omstandighede."
[3]
In my view, ordinarily the applicant's would have made out a case
deserving of the order they seek at this stage for it is a
pre
requisite of the law that the unfortunate circumstances the
applicants find themselves in not be caused by their own doings,
including fraudulent ones.
[4]
The turning and adversarial fact in this application appears on
paragraph 6.1 where the applicant states: "Ons het verkeerdelike
begin om die te kort tussen ons uitgawes en inkomste te financier met
kort termynlenings en ander kredit produkte. Dit het veroorsaak
dat
ons al hoe verder en verder n moeilikheid beland het en ons uitgawes
gegroei het en net elke maand meer onbekostigbaar geword
het."
[5]
In my view, the deponent was already aware of looming financial
challenges when his working hours were reduced'. A reasonable
man in
his circumstances would have adjusted his life style and aligned it
with his earnings. In this case the deponent admits
that he
incorrectly sort short term loans and other credit facilities. It is
important to state that the National Credit Act, 2005
requires that
credit providers carefully assess the financial situation of a credit
seeker with specific reference to his ability
to repay the debt. To
ensure compliance, the Act defines as reckless lending any case where
credit should never have been given
had a proper evaluation of the
loan seeker been done.
[6]
That the applicant, despite the changes in the deponent's earnings,
still managed to raise loans and credits can only mean one
of two or
even both possibilities: the credit lender could have been reckless,
in which event the applicants have defence or, the
applicants may
have given misinformation to the lender regarding their financial
status and this induced the granting of the credit.
In the latter
case it is not open to the applicants to submit that the unbearable
financial difficulties they find themselves in
were not of their own
making, be it fraudulent or otherwise.
[7]
The present applicants had full knowledge of the fact that they had
no alternative means of repaying the loans they created,
yet went on
to obtain the loans. They are, therefore, the authors of their
misfortune.
[8]
Resulting from the findings in this judgment, the following order is
made: The application is dismissed.
_____________________
M
MBONGWE, AJ
ACTING
JUDGE OF THE GAUTENG HIGH COURT