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[2016] ZAGPPHC 1205
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Standard Bank of South Africa v Jones (111/2016) [2016] ZAGPPHC 1205 (27 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, Functioning as MPUMALANGA DIVISION,MBOMBELA
CASE
NO: 111 \2016
DATE:
27 October 2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
IN
THE MATTER BETWEEN
THE
STANDARD BANK OF SOUTH AFRICA
APPLICANT
AND
MARGARET
PENNY
JONES
RESPONDENT
JUDGMENT
Matter
heard on:
18 OCTOBER 2016
Judgment
handed down on:
27 OCTOBER 2016
LEGODI,
J
[1]
This is an application for summary judgment to which the defendant,
Mrs Margaret Penny Jones failed to file opposing affidavit
after she
had entered an appearance to defend. The plaintiffs' cause of action
is a loan to which a bond was registered in favour
of the plaintiff,
Standard Bank.
[2]
The action instituted against the defendant was preceded by a debt
review restructuring order which was granted on 24 April
2010 by the
district court magistrate sitting at White River. In terms of the
order, a repayment period was extended and the defendant
had to pay a
reduced installment per month.
[3]
The defendant having defaulted to pay in terms of the order, the
present action proceedings were issued on 3 March 2016 by way
of
summons to which the defendant entered an appearance to defend, and
as I said but, failed to file an opposing affidavit to the
application for summary judgment. The present application for summary
judgment was therefore moved unopposed. The relief is sought
as
follows:
1.
" Payment of the amount of R431 334.46.
2.
Payment of interest on the amount of R431 334.66 at the rate of
9.
700%
per annum as from 15 January 2016 to date of final payment,
calculated daily and compounded monthly in arrears.
3.
Payment of monthly insurance premiums of R119.95 and assurance
premiums of R315.11 as from 10 February 2016 for the full period
the
plaintiff makes payment of such monthly insurance premiums until such
time that the property is no longer registered in the
name of the
defendant, alternatively until such date that the risk of the
property passes completely and remains with
a
new owner, both dates
inclusive.
4.
An order declaring specially executablethe property known as:
ERF
1458 WHITE RIVER EXTENT/ON 13 TOWNSHIP, REGISTRATION DIVISION J.U,
THE PROVINCE OF MPUMALANGA, MEASURING 352 (THREE HUNDRED
AND FIFTY
TWO) SQUARE METRES, HELD UNDER DEED OF TRANSFER T336828/2007.
5.
An order authorizing the Registrar to issue a writ of execution in
respect of aforesaid property.
6.
Costs of suit on an attorney and own client scale, to be taxed.
7.
Further and/or alternative relief."
[4]
At a first glance, this court raised the issue whether the action
proceedings should not have been preceded by a notice of intention
to
institute legal proceedings. Attorney for the plaintiff referred this
court to the following two cases: Jill v First Rand Bank
Ltd t/a
Wesbank 2014(3) SA 183 SCA and Ferris v FirstRand Bank Ltd
2014 (3)
SA 39
CC.
[5]
Section 88 (3) (b) (ii) of the National Credit Act does not require
notice- it merely precludes a credit provider from enforcing
a debt
under debt review unless, amongst others, the debtor defaults on a
debt restructuring order. Moreover, section 129(2) expressly
stipulates that the requirement to send a notice under section 129
(1) is not applicable to debts subject to debt-restructuring
orders.
[1]
A
credit provider is independently entitled to enforce the loan on the
basis of the breach of the debt restructuring order
and the
provisions of the debt restructuring order itself.
[2]
[6]
Section 88 (3) (b) (ii) of the National Credit Act provides:
"Subject
to the provisions of Section 86(9) and (10),
a
credit provider who
receives notice of court proceedings contemplated in section 83 or
85,
or
notice in terms of section 86 (4)(b)(i}, may not exercise or enforce
by litigation or other process any right or security under
that
credit agreement until-
"(a)
The consumer is in default under the credit agreement ; and
(b)
one of the following
has
occurred:
(i)
An event contemplated in subsection (1) (a) through (c); or
(ii)
the consumer
defaults on any obligation in terms of re-arrangement agreed between
the consumer and credit providers, or ordered
by a court of the
Tribunal". (My emphasis).
[7]
The restructuring order in the present proceedings was coached as
follows:
"
1. That the Consumer be declared over-indebted;
2.
That the Consumer payment to the Respondents be re-arranged in the
following manner :
That
the period for payment in respect of each credit agreement with each
Respondent be extended and the amounts payable per month
be reduced
accordingly, as per the draft Court order annexed hereto marked "X"".
3.
Ordering that the Respondent\s pay the costs of this application in
the event of same being opposed."
[8]
There is therefore nothing in the order which precludes the plaintiff
from instituting the present action proceedings without
a notice.
This then brings me to the next issue for consideration.
[9]
The property against which an order for declaring special executable
is sought is a primary residence on which a bond was registered
in
favour of the plaintiff. It is a bond which has been in existence
since 2007 in terms of which the defendant as on 3 March 2016
was
liable to pay the monthly installment of R3870.02. Furthermore, as on
15 January 2016, she was in arrears in the amount of
R 25 110.61 the
outstanding amount being R 431 334.66.
[10]
Every person has is in terms of section 26(1) of the Constitution the
right to have access to adequate housing. The court is
enjoined to
exercise judicial oversight in an application like in the present
proceedings and decide whether to declare the property
in question
specially executable.
[11]
Having regard to the amount of arrears outstanding and the monthly
installment, I am not satisfied that this is an appropriate
case to
declare the property in question specially executable. If the
respondent was to be able to put the arrears up to date that
could
safe her from losing her home and this she can do by having
executable movables sold. For this I am inclined to grant the
relief
in part.
[12]
Consequently an order is hereby made as follows:
12.1
Judgment is hereby granted in terms of prayers 1, 2, 3 and 6 of the
application for summary judgment dated 12 April 2016 and
quoted in
paragraph 3 of this judgment.
12.2
Prayers 4 and 5 of the notice of application aforesaid are hereby
postponed sine die pending the execution of the movables.
_______________________
M
F LEGODI
JUDGE
OF THE HIGH COURT
FOR
THE APPLICANTS: Attorney Mr Siebrits of SWANEPOEL & PARTNERS INC
FOR
THE RESPONDENTS: No Appearace
Instructed
by:
[1]
Para 14 of Ferris 's judgment supra
[2]
See further para 18 ferris supra