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[2015] ZAGPPHC 49
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Integer Mortgage SPV Limited v Chimhandamba and Another (54386/2014) [2015] ZAGPPHC 49 (6 February 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NUMBER: 54386/2014
DATE:
6 FEBRUARY 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
INTEGER
MORTGAGE SPV (PTY)
LIMITED
.......................................................
APPLICANT
and
RAYMOND
CHIMHANDAMBA
................................................................
FIRST
RESPONDENT
NANCY
CHIMHANDAMBA
..................................................................
SECOND
RESPONDENT
J
U D G M E N T
CORAM:
PRETORIUS
J
,
1.
This
is an application for summary judgment for the payment of a debt and
for an order declaring property specia
lly
executable.
2.
According
to the defendants they have a
bona
fide
defence as they had not acted intentionally or negligently.
3.
The
defendants were under debt review and admit defaulting on the
payments in terms of the debt review arrangement, as the first
defendant had lost his employment. It is common cause that the debt
review was cancelled as a result of the failure by the defendants
to
adhere to the terms of the debt review. Both the first and second
defendants are currently employed and are of the opinion that
debt
review should be resumed. The
National Credit Act 34 of 2005
has the
purpose as set out in
section 3(1):
“
To
promote and advance the social and economic welfare of South
Africans, promote a fair, transparent, competitive, sustainable,
responsible, efficient, effective and accessible credit market and
industry, and to protect consumers…..”
4.
In
FirstRand
Bank Ltd v Adams & Another
2012 (4) SA (WCC) 14
Davis J held at paragraph 6:
“
In
short, the Act seeks to ensure the obligations which have been
incurred by consumers are discharged to the satisfaction of the
credit provider, but in circumstances where the interests of the
consumer are considered; hence, instead of the consumer such as
in
the present case losing their key asset, a restructuring mechanism is
established and can be utilised to achieve a necessary
balance
between the competing interests of consumer and credit provider.”
Factual
background
5.
The
plaintiff granted a mortgage bond of R1 830 000.00 to the defendants.
The instalments are R22791.43 per month. The first and
second
respondents breached their obligations and as at 9 June 2014 were in
arrears in the sum of R231 562.00.
6.
In
his affavit the first defendant submitted that:
“
We
have since made an offer and undertaking to the Applicant that we
will liquidate the arrears and bring to date all the arrears
in
within a period of 18-24 months using our bonuses and extra income
earned from my other business”
7.
This
offer was that the defendants would pay R14 000 per month for 3
months and thereater R17 000 per month. This would
mean that the
arrears would accumulate once again as the payments would only be for
the current arrears and no payments on the
instalments would be made,
resulting in further arrears. The only proof of the current financial
position of the defendants is
the employment contract of the first
defendant which is referred to and annexed to the opposing affidavit.
There is no information
as to his income from his other business and
as to which amount could be paid from bonuses and extra income.
8.
I
realise the court can resume a debt review in terms of
section 86
(11), but then the defendants have to justify their request by giving
adequate information to enable the court to make an informed
decision.
9.
In
Changing
tides 17(Pty) Ltd v Scholtz
[2010] JOL 25358
WCC
the court mentioned a list of what should be expected from a
defendant requesting the resumption of a debt review.
10.
In
this present matter there is no indication of the full income of both
defendants, their liabilities, their commitments in respect
of such
liabilities, whether they have dependants and if so, what their
living expenses are. There is no confirmatory affidavit
by the debt
counsellor or any proposal by the debt counsellor as to the
re-arrangement of debt.
11.
I
cannot, under these circumstances, find that there are good grounds
to exercise my discretion in terms of
section 86(11)
and to
order a resumption of debt review. It is so that the property is the
primary residence of the defendants, but that alone
cannot justify
the resumption of the debt review.
12.
Due
to the paucity of information the court cannot find that there is a
prospect of success. I have considered all the evidence
and come to
the conclusion that summary judgment should be granted in this
instance, due to the fact that I cannot find that
debt review in
terms of
section 86(11)
of the
National Credit Act should
resume. The
defendants admitted that they owe the arrears and could not provide a
bona
fide
defence.
Therefor summary
judgment is granted as follows:
1.
Summary
judgment is granted agaist the first and second defendants jointly
and severally, the one to pay the other to be absolved.
2.
Payment
in the sum of R 1 818 931.34(One million eight hundred and
eihteenthousand and nine hundred and thirty one Rand
and thirty four
cents) in respect of the defendants’ indebtedness arising from
the loan agreement;
3.
Interest
on the aforesaid sum at a rate of 7.50% from 01June 2014 to date of
payment, both days inclusive;
4.
Declaring
ERF 438 DOUGLASDALE EXTENSION 25 TOWNSHIP, REGISTRATION DIVISION I.Q.
PROVINCE OF GAUTENG, IN EXTENT 1513 (ONE THOUSAND
FIVE HUNDRED AND
THIRTEEN) SQUARE METERS, HELD BY DEED OF TRANSFER T54882/2004,
immediately executable;
5.
Costs
of suit on the scale of attorney and client.
___________________________
PRETORIUS J
JUDGE
OF THE HIGH COURT
Heard on: 28/1/2015
Judgment handed
down: 6/2/2015
Representation
for the Applicant:
Counsel: M JACOBS
Instructed by:
KATANYA CHETTY ATTORNEYS
c/o
NASIMA KHAN INCORPORATED
Representation
for Respondents:
Counsel:
R MARé
Instructed by: PAUL
FARINHA ATTORNEYS