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[2015] ZAFSHC 117
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Standard Bank of South Africa Ltd v Visagie and Another (1199/2015) [2015] ZAFSHC 117 (25 June 2015)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : 1199/2015
In
the matter between:-
STANDARD
BANK OF SOUTH AFRICA
LTD
Applicant
and
JOHAN
FRANCOIS
VISAGIE
1
st
Respondent
JULIANA
VISAGIE
2nd Respondent
HEARD
ON:
18 JUNE 2015
JUDGMENT
BY:
KRUGER, J
DELIVERED
ON:
25 JUNE 2015
[1]
Plaintiff applies for summary judgment, seeking payment of
R683 220.66, interest, an order declaring fixed property
executable
and costs on the attorney and client scale.
[2]
The defence is that Defendants applied for debt review during August
2014. On 25 August 2014 plaintiff served its notice
to oppose
the debt review. In the opposing affidavit the defendants say
the plaintiff did not file an opposing affidavit
resisting debt
review. Defendants were informed by an attorney of the
plaintiff that plaintiff would not file an affidavit
resisting the
debt review application. The defendants say summons was issued
while the debt review is pending, which cannot
be done.
[3]
On behalf of plaintiff Mr Zietsman submits that the plaintiff gave
notice of termination of the debt review procedure in terms
of
section 86(10)
of the
National Credit Act 34 of 2005
. Mr
Zietsman says the Notice of termination of the debt review process
was sent to the address furnished in the loan application.
He
says all the plaintiff has to prove is that the notices reached the
correct post office, with reference to
Sebola
and Another v Standard Bank of South Africa Ltd and Another
2012 (5) SA 142
(CC).
[4]
From the track and trace report of plaintiff’s termination
letter it appears that the letter reached the post office,
but was
not collected. It was returned to sender (D.3 p. 60 “The
posted item has Returned back to Sender”.)
[5]
In
Absa Bank Ltd
v Mkhize and Another and Two Similar Cases
2012 (5) SA 574
(KZD) Olsen AJ gives a detailed exposition of the
position. He had evidence of postal practice. The
evidence showed
that between 50 – 70 % of registered mail items
were unclaimed (par [29]). Ordinary post is by a substantial
margin
more reliable than registered post (par [35]). Olsen AJ
points out (par [45]) that
Sebola
held that despatch of a notice under
section 129
is insufficient.
There must be proof that the registered item reached the addressee’s
post office (par [45]).
Olsen AJ held that he cannot ignore the
fact that the track and trace report established conclusively that
the item did not reach
the consumer (par [45]). Olsen AJ went
on to hold that the majority judgment in
Sebola
decided that actual notice to the consumer is indeed the standard set
by
section 129(1).
He refered specifically to par [77] of the
Sebola
judgment were it is said that a reasonable assumption of notification
can be made.
“
In
that context what is conveyed in paragraph 77 of the majority
judgment is clear enough. Coupled with the required allegations
in
the credit provider’s summons, proof that the notice reached
the correct post office brings about that:
‘
it
may reasonably be assumed
in
the absence of contrary indication
,
. . that notification of its arrival reached the
consumer and that a reasonable consumer would have ensured retrieval
of the item from the post office’.”
(Olsen
AJ para [56])
Olsen
AJ concluded that there had not been compliance with the procedure
under
section 129
and postponed the applications for default judgment
where proof of notice to the consumer had not been established
prima
facie
.
[6]
Ms Le Roux points out that
section 86(10)
gives the debtor a
moratorium of 60 days after having applied for debt review with
reference to
Collett
v Firstrand Bank Ltd
2011 (4) SA 508
(SCA) par [12] per Malan JA. Mr Zietsman refers
to
Hardenberg and
Another v Nedbank Ltd
2015 (3) SA 470
(WCC) where the Western Cape Full Court referred to
the SCA case of
Collett
and held that in the context of what the court was asked to decide in
Collett
,
that it was not part of the
ratio
in the
Collett
case that the default had to exist at the time that the consumer
applied for debt review. In this case the first and main
question is whether the debt review has been terminated. Mr
Zietsman sought to distinguish the
Mkihize
case and the basis that here the track and trace report is attached
to the summons, whereas the track and trace was only produced
after
the opposing affidavit had been filed it the
Mkhize
case. I cannot see the difference. The defendant makes
the point clearly and unambiguously that no opposing affidavit
was
filed by the plaintiff in the debt review process. The
defendants did not receive notice of the plaintiff’s
termination
of the process.
[7]
Courts are generally reluctant to deprive a defendant of the right to
defend the action, except in a clear case (
Skead
v Swanepoel
1949 (4) SA 763
(T) at 767). A circumstance which makes this to
be not a clear case is the recently enacted
section 86(10)(b)
of the
National Credit Act which
came into operation on 13 March 2015 by
virtue of
section 26
of Act 19 of 2014 and Proclamation 10 of 2015
dated 13 March 2015:
“
(
b
)
No credit provider may terminate an application for debt review
lodged in terms of this Act, if such application
for review has
already been filed in a court or in the Tribunal.”
[8]
A court may take the view that defendant’s position is covered
by the new section 86(10)(b). The tendency and intent
of the
legislation is to allow the debtor time to get out of debt. It
is arguable that the debt review has not been properly
terminated.
Thus section 86(10) constitutes a further possible defence for the
defendants. In the circumstances Summary
Judgment cannot be
granted.
ORDER
1.
Summary judgment is refused.
2.
Defendants are granted leave to defend.
3.
Costs are costs in the cause.
____________
A.
KRUGER, J
On behalf of
applicants:
Adv P Zietsman SC
Instructed by:
Matsepes Inc
BLOEMFONTEIN
On behalf of
respondents: Adv L le
Roux
Instructed by:
Jordaans Rijkheer Attorneys
BLOEMFONTEIN
wm/