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[2015] ZAGPPHC 456
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Firstrand Bank Limited t/a RMB Private Bank v Mazibuko and Another (60498/2014) [2015] ZAGPPHC 456 (5 June 2015)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No.: 60498/2014
DATE:
5 JUNE 2015
In
the matter between:
FIRSTRAND
BANK LIMITED
t/a
RMB PRIVATE
BANK
.................................................................................................
APPLICANT
And
THEMBA
DUPLEIX
MAZIBUKO
.........................................................................
1
st
RESPONDENT
TAFADZWA
MAZIBUKO
......................................................................................
2
nd
RESPONDENT
JUDGMENT
HIEMSTRA
AJ
[1]
This is an application for payment of
the sum of R1 855 620.73 in respect of a Single Credit Facility
Agreement entered into between
the applicant and the first and second
respondents, who are husband and wife. The facility was secured by a
mortgage bond
over fixed property registered in the name of the
respondents, namely Erf 1......... R......... R........ Extension
1....... Township,
Registration Division IQ, Gauteng.
[2]
The first respondent appeared in person
on his own behalf and that of the second respondent.
[3]
It is not in dispute that the
respondents exceeded the facility by the amount of R355 620.73 on 9
April 2014, rendering the full
amount of the balance due and
payable. On that date the balance, as certified by an authorised
official of the applicant,
was R1 856 620.73. The applicant seeks and
order declaring the said property specially executable.
[4]
The
respondents raised a number of defences to the claims, namely:
1.
They
deny that the applicant had complied with the provisions of the
National Credit Act, 34 of 2005
, in particular
sections 129
and
130
thereof;
2.
The
respondents did not timeously respond to a settlement proposal made
by them;
3.
The
applicants had referred the credit agreement to a debt councillor, as
they had been invited to do in the applicants’ letter
of
demand;
4.
The
respondents failed to comply with the provisions Paragraph 8.6 of the
Code of Banking Practice by failing to advise the respondent
prior to
instituting legal proceedings of the process and the costs
implications thereof;
5.
They
have complied with a revised payment plan and are accordingly not in
arrears.
COMPLIANCE
WITH
SS 129
AND 130
[5]
The applicant attached a letter
addressed to the respondents in his founding affidavit that
complies with the provisions of
ss 129(1)
and
130
. The letter does
not state that it is in compliance with these provisions, but it
patently is. The respondents allege that
it had been sent to the
wrong e-mail address and fax number. That may be so, but it is of no
consequence as it was sent by registered
post and the first
respondent admitted that he had collected it from the post
office. He did not concede this in his answering
affidavit, but he
admitted as much during argument.
[6]
The respondents did not exercise anyone
of the two options granted to them in terms of
s 129(1)
, and set out
in the letter in compliance therewith, namely to remedy the default
or to refer the matter to a debt councillor, alternative
dispute
resolution agent, the Consumer Court of an ombudsman with
jurisdiction. The first respondent claims that they had done
so, but
they clearly did not do so within the period of 20 business days
referred to in
s 130(1)
and the
s 129
letter.
[7]
It is now trite law that once a credit
provider has given the
s 129
notice in respect of a specific credit
agreement, a debt review relating to that specific agreement is
excluded.
[I]
[8]
I therefore find that the applicant has
complied with the provisions of the
National Credit Act.
TIMEOUS
RESPONSE TO THE SETTLEMENT PROPOSAL MADE TO BY THE RESPONDENTS
[9]
Whatever settlement proposal that may
have been made in respect of this specific credit agreement, was made
out of time. In any
event the credit provider is not obliged to
accept such a proposal.
PROCEEDINGS
DESPITE THE DEBT REVIEW APPLICATION
[10]
There is not pending debt review
application. The application referred to by the respondents is out of
time.
CODE
OF BANKING PRACTICE
[11]
The
s 129
letter sufficiently complies
with the requirements of the Code of Banking Practice. No
separate compliance is required.
REVISED
PAYMENT PLAN
[12]
Whatever payment plan the respondents
refer to, is their own plan and was never agreed to by the
applicant. The respondents
are therefore still in default.
CONCLUSION
[13]
The applicant has established its claim
and the respondents have failed to disclose any cogent defence.
In
the result and order is made in terms of prayers 1, 2, 3, 4 and 5 of
the Notice o Motion, except that the word “own”
where it
appears in prayer 5 is not part of this order.
J.
HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
Date
heard: 1 June 2015
Date
of Judgment: 4 June 2015
Counsel
for the applicant: Adv J. Roux
Attorney
for the applicant: Delport van den Berg Inc First respondent appeared
in person.
[I]
Nedbank Ltd v The National Credit Regulator &
Another
2011 (3) SA 581
(SCA)