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[2015] ZAFSHC 146
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Firstrand Bank Ltd t/a Wesbank v Conradie (116/2015) [2015] ZAFSHC 146 (30 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case number: 116/2015
DATE: 30 JULY 2015
In the matter between:
FIRSTRAND BANK LTD T/A
WESBANK
...........................................................................
Applicant
And
JACOBUS DANIEL
CONRADIE
........................................................................................
Respondent
CORAM: MBHELE, AJ
HEARD ON: 23 APRIL 2015
JUDGMENT BY: MBHELE, AJ
DELIVERED ON: 30 JULY 2015
INTRODUCTION AND BACKGROUND
[1] First Rand Bank Ltd, the applicant
in these proceedings, seeks summary judgment against the respondent
for:
1.1 A cancellation of the agreement.
1.2 An order in terms of which the
property which forms the subject matter of this application is
delivered to the Applicant alternatively
that the sheriff take the
property into his possession and place the Applicant in possession
thereof;
1.3 Damages to be postponed until
return of the property.
1.4 Leave to approach the court on the
same papers, supplemented by a damages affidavit, evaluation thereof
and calculations of
damages;
1.5 Interest on the amount of damages
yet to be determined, and
1.6 Cost of the action.
[2] The application is opposed by the
Respondent. Adv. Benade appeared for the applicant and Adv. Le Roux
for the respondent.
[3] On 12 November 2009 the Respondent
was placed under debt review by the Bloemfontein Magistrate Court
under case number 36282/2009.
[4] On 13 March 2013 Respondent and
Applicant entered into a written instalment sale agreement, in terms
of which the Respondent
purchased a 2013 Volkswagen Polo Vivo 1.4
Blueline 5 DR motor vehicle with engine number [CLP 1………..]
and
chassis number [AA……………..]
[5] The Respondent would pay the loan
amount in 73 monthly instalments of R2810.39.
[6] During April 2014 Respondent
approached his debt counsellors for an order involving the Applicant
in the debt restructuring
order.
[7] On 16 January 2015, an application
was made by the debt counsellors for an amendment of the Respondent’s
debt review order
to include Applicant as one of the creditors in the
court order.
[8] On 20 October 2014 the Applicant
gave notice of the debt review process in terms of section 86 (10) of
the National Credit Act
(the Act). The notice was served on the
chosen domicilium citandi et executandi by the sheriff.
[9] Summons was issued in this court on
12 January 2015 and served on the Respondent. Respondent’s
chosen domicilium citandi
et executandi on 20 January 2015.
[10] On 21 January 2015 the Respondent
sent an application for amendment of the order provided on 12
November 2009 to the Applicant.
ISSUES IN DISPUTE
[11] I am being called upon to
determine whether the applicant’s termination notice is valid
as the respondent disputes service.
[12] The parties are, further, in
dispute as to whether the Respondent’s opposition of summary
judgment has merit.
APPLICANT’S CONTENTIONS
[13] Mr Benade, on behalf of the
Applicant submits that the respondent has failed to disclose a
defence which is bona fide and good
in law.
[14] It is further, submitted on behalf
of the Applicant that the section 86 (10) notice was properly served
on the domicilium address,
the respondent’s debt counsellor and
the National Credit Regulator.
[15] It is contended that the fact that
the respondent does not disclose how he came into possession of the
section 86 (10) notice
attached to his opposing affidavit is an
indication that the respondent was aware of the section 86(10) notice
issued by the Applicant
RESPONDENT’S CONTENTIONS
[16] Mrs. Le Roux, on behalf of the
Respondent submits that the credit provider is not entitled to
terminate the debt review process
after an application for debt
review has been filed in the court or the tribunal. She finds support
for her argument from section
86(10)(b) of the National Credit
Amendments Act, Act 19 of 2014.
[17] The amendment Act only came into
operation on 13 March 2015 after all the events had taken place in
this matter, it is therefore,
not applicable in the current case.
[18] It is further argued that the
application to include the Applicant in the debt review process was
filed prior to the action
being taken against the respondent.
[19] She contends further that the
applicant continued to receive payments from the Payment Distribution
Agency and the fact that
payment was not made for January 2015 cannot
be blamed on the respondent. It is the Payment Distribution Agency
that defaulted
on payment for the month of January 2015.
APPLICABLE LEGAL PRINCIPLES
[20] The prescribed manner for filing
termination notice is defined as follows in the Government Notice
R489, Government Gazette
28864 of 31 May 2006 as follows:
“Unless otherwise provided for,
means sending a document by hand, by fax, by email or registered mail
to address chosen in
the agreement by the proposed recipient.”
[21] The notice was delivered by the
sheriff on the address chosen by the respondent in the agreement
entered into between the parties.
[22] The copy of the notice was sent
per email to the debt counsellor chosen by the Respondent. It is
correctly pointed out on
behalf of the applicant that the debt
counsellor does not anywhere in the papers dispute receipt of the
said email.”
[23] It is correct as pointed out by
Mr. Benade that a credit provider, in the position of the Applicant,
is entitled to enforce
its rights under the credit agreement where
the consumer is in default in terms of the credit agreement.
(See: Firstrand Bank Limited v Fillis
and Another
2010 (6) SA 565
ECP and Collet v First Rand Bank Limited
2011 (4) SA 508
(SCA).
Section 86(10) provides as follows:
“If a consumer is in default
under a credit agreement that is being received in terms of this
section, the credit provider
in respect of that credit agreement may
give notice to terminate the review in the prescribed manner to –
(a) the consumer
(b) the debt counsellor
(c) the National Credit Regulator of
any fine at least 60 business days after the date on which the
consumer applied for the debt
review.”
[24] In the current matter it is clear
that the above requirements have been met.
[25] It is clear from the papers that
the respondent only filed the application for the amendment of the
court order to include
the Applicant after the notice to terminate
was served and summons was issued.
[26] The defendant must disclose a
defence which is bona fide and good in law. (See: Joob Joob
Investment v Stocks Mavundia 2009
(5) SA (1) (SCA).
[27] I am not persuaded that the
respondent has a fairly triable and arguable issue. The Respondent
has failed to make out a defence
to the Plaintiff’s case. He
has not set out facts upon which I can exercise my discretion in his
favour.
[28] I accordingly make the following
order.
Summary Judgment is granted against the
respondent in terms of prayers 1, 2, 3, 4, 5 and 6.
N.M. MBHELE, A.J
On Behalf of the Applicant: Adv.
Benade
Instructed by: Simington & De
Kok
BLOEMFONTEIN
9301
On Behalf of the Respondent: Adv. L
Le Roux
Instructed by: Jordaans Rijkheer
Attorneys
BLOEMFONTEIN