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[2014] ZAGPPHC 486
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Greenhouse Funding (Pty) Ltd v Willemse and Another (71399/2011) [2014] ZAGPPHC 486 (12 March 2014)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE NO:
71399/2011
DATE: 12 MARCH
2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
GREENHOUSE
FUNDING (PTY)
LTD
...........................................................................................
Applicant
v
MARIUS
PIETER
WILLEMSE
................................................................................................
1
st
Respondent
ALECIA
WILLEMSE
...............................................................................................................
2
nd
Respondent
DATE OF HEARING:
2 February 2014
DATE OF JUDGMENT:
12 March 2014
JUDGMENT
MALINDI AJ
INTRODUCTION
[1] The Applicant in
this matter initially issued summons against the first and second
respondents on 14 December 2011.
[2] The summary
judgment was set down for hearing on 2 April 2012. However, on 26
March 2012, a week before the summary judgment
hearing, the first
respondent entered into a settlement agreement with the plaintiff.
The first respondent was responsible for
the debt and the second
respondent, to whom he was married was not pursued in respect
thereof.
[3] The respondent
resists the application on the grounds that a S129(1)(a) notice in
terms of the National Credit Act was not issued
to him, which
requires that it be sent to a defaulting consumer in respect of a
specific credit agreement before debt enforcement.
It is further
submitted that since the applicant does not refer to such notice in
its founding affidavit nor in the replying affidavit,
I should hold
that it was never sent. The respondent, denies having received it in
any way. He submits therefore that this application
should not be
granted for lack of the S129 notice in the main proceedings.
[4] In
substantiation of the denial of receipt of the notice the respondent
asserts that the notice by registered mail was diverted
by the postal
services to an incorrect post office.
[5] The respondent
submits, lastly, that the settlement agreement which was envisaged to
be made an order of court in terms of Rule
41(4) in the event of a
default on the part of the respondent is incapable of enforcement
because the applicant has not taken the
step envisaged in Rule 41(4),
that is, that the agreement be made an order of court first.
[6] The applicant on
the other hand submits that the agreement was entered into in order
to afford the respondent an opportunity
to meet his obligations. It
was envisaged that no further dispute would arise and that settlement
will be enforced.
[7] The applicant
submits further that the S129 notice was attached to the summons and
the respondent entered his intention to defend.
The settlement
agreement came after the S129 notice and after the intention to
defend. The respondent therefore cannot aver that
he did not receive
the notice.
[8]
The applicant submits that in any event the proceedings in this case
were commenced before the
Sebola
v Standard Bank of
SA
1
case
which ruled that the credit provider must make averments that will
satisfy the court that the S129 notice, on a balance of
probabilities, reached the consumer.
[9] In this case the
respondent has responded to the notice as envisaged by S130(1 )(b)(i)
by entering into the settlement agreement.
The respondent does not
state what he has done for nearly 2 years to satisfy the agreement or
to make other arrangements as set
out in S129(1)(a), which he
received as attached to the summons.
[10] I am satisfied
that the applicant issued a proper S129 notice which was received by
the respondent and that the parties developed
and agreed on a plan to
bring the payments under the agreement up to date and that the
respondent has defaulted in that regard.
The applicant avers in its
replying affidavit that the agreement was made an order of court on 2
April 2012.
[11] The applicant
is entitled to the prayers in terms of the Notice of Motion because
in terms of Rule 41(4) a party may approach
the court for the
settlement to be made an order of court and also seek judgment for
the outstanding obligations even if the agreement
had not been made
an order of court.
[12] I make the
following order:
Payers 1 - 5,
inclusive, of the Notice of Motion dated 4 June 2013 are granted.
SIGNED ON THIS
12TH DAY OF MARCH 2014
MALINDI AJ
ACTING JUDGE OF THE
HIGH COURT
Appearances:
For Applicant: Adv J
H Mollentze
Instructed by:
Velile Tinto & Associates Inc.
For Defendant: Adv C
Richard
Instructed by:
Jordaan Attorneys
1
2012
(5)SA 142(CC)