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[2012] ZAGPPHC 166
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Standard Bank of South Africa v Wessels (64923/2011, 68363/2011, 70014/2011) [2012] ZAGPPHC 166 (20 April 2012)
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 64923/2011
DATE:20/04/2012
!n
the matter between:
THE
STANDARD BANK OF SOUTH
AFRICA
....................................................
Plaintiff
and
FRANCOIS
JACOBUS
WESSELS
......................................................................
Defendant
CASE
NO: 68363/2011
In
the matter between:
THE
STANDARD BANK OF SOUTH
AFRICA
....................................................
Plaintiff
and
CARL
NIENABER t/a MONTANA
AGENCIES
...................................................
Defendant
CASE
NO: 70014/2011
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA
….............................................
Plaintiff
and
P
J KOEKEMOER
…...........................................................................................
Defendant
JUDGMENT
DAVIS,
AJ
[1]
The abovementioned three matters came before me in the unopposed
motion court on the 11th of April (in respect of case numbers
68363/2011 and 64923/2011) and 13 April 2012 (in respect of case
number 70014/2011) respectively. The Plaintiff in all three matters
is the Standard Bank of South Africa Ltd and the various Defendants
were all represented by the same set of attorneys, who also
used the
same counsel to argue all three matters. All three matters were
opposed applications for summary judgment and in all three
matters
the answering affidavits followed the same pattern to the extent of
even listing the defences in the same wording, font
and sequence. Of
course different defendants might have the same defence but the
manner in which these were presented to the court
gave the definite
impression of a standard so-called "cut-and-paste"
affidavit. I will deal with the detail of the affidavits
more fully
hereunder. As will also appear, there is sufficient overlapping of
issues in ail three matters to render it appropriate
to deal with
them in one judgment.
[2]
In case number 68363/2011 the claim was for cancellation of a written
instalment sale agreement regarding a Tata motor vehicle
and for
return thereof. The agreement provided for monthly instalments in the
amount of R7 648,90 and the agreement would have
expired on 6 March
2011, that is more than a year prior to the hearing of the
application.
[3]
In case number 64923/2011, the Plaintiff claimed confirmation of the
cancellation of a written lease agreement in respect of
a certain
Nissan Hardbody motor vehicle and the return thereof. The lease
agreement provided for monthly instalments in the amount
of R2 820,28
and the agreement would have expired on 1 August 2011.
[4]
In case number 70014/2011, the Plaintiff claimed confirmation of
cancellation of a written instalment sale agreement in respect
of a
Toyota Corolla motor vehicle and the return thereof. The monthly
instalments were R3 985,35 and the agreement would have expired
on 1
December 2013.
[5]
As aforestated, in all three matters summary judgment was applied for
after the respective Defendants have delivered notices
of intention
to defend. In all three matters the Defendants were in arrears in
respect of the respective credit agreements. In
all three matters the
various Defendants had applied for debt review and had made offers to
the Plaintiff as credit provider. In
case number 68363/2011 the
Defendant therein proposed a debt restructuring proposal on 1
February 2011 in which he proposed monthly
repayments in respect of
the Plaintiff's credit agreement in the amount of R4 715,93 which
amount would increase over time and
with a proposed final termination
date of 7 April 2019. In case number 64923/2011 the Defendant therein
proposed a debt restructuring
proposal (on a date not indicated) in
which he proposed monthly repayments in respect of the Plaintiff's
credit agreement in the
amount of R4 500,00 which amount would
increase over time and with a proposed final termination date of 24
March 2013. In case
number 70014/2011 the Defendant therein proposed
a debt restructuring proposal on 24 November 2011 in which he
proposed monthly
repayments in respect of the Plaintiff's credit
agreement in the amount of R2 881,98 which amount would increase over
time
and
with a proposed final termination date of 1 August 2017. None of
these proposals were accepted.
[6]
In all three matters the Plaintiff sent notices in terms of
Section
86(10)
of the
National Credit Act, No. 34 of 2005
terminating the
respective debt reviews.
[7]
Save for a single sentence wherein it is denied that appearance had
been entered for purposes of delay (in case no. 70014/2011),
the
first seven paragraphs of the opposing affidavits in ali three
matters are virtually identical, to the extent that the debt
counsellor's name in case no. 64923/2011 (in which case a different
debt counsellor is involved than the one in the other two matters)
has initially been copied from the other affidavits and later been
amended in pen and initialled by the deponent therein (only).
The
defences raised by the Defendants in all three matters are
identically worded and described as follows:
TECHNICAL
SHORTCOMINGS IN THE PAPERS
•
ALLEGED
TERMINATION AND PROOF THEREOF
•
APPLICATION
IN TERMS OF
SECTION 86(11)
OF THE NCA
•
RE-ARRANGEMENT IN TERMS OF
SECTION 85
OF THE NCA
•
PERSONAL
CIRCUMSTANCES
•
COSTS"
(I quote these defences in the same fashion as they identically
appear in all three opposing affidavits.)
[8]
These defences are then dealt with in subsequent paragraphs in
similar fashion in all three matters. I shall similarly deal
with
them hereunder. I interpose at this stage to state that the three
Defendants also each quoted identical paragraphs from the
judgment in
Rossouw and Another v Firstrand Bank Ltd 2010(6) SA 439 (SCA) in
their affidavits to which I will also make reference
hereunder.
[9]
Before dealing with the aforementioned defences raised, I lastly
point to the following distinguishing features in the matters:
9.1
In case number 64923/2011 the answering affidavit was late and on 7
March 2011 Mngqibisa-Thusi, J, in postponing the matter,
ordered the
Respondent to file an application for condonation within 5 days from
that date. The condonation application was served
late on 23 March
2012 and although the telefaxed copy handed up to me in court bear
the court's date stamp of 27 March 2012, this
application was not
initially on the court file. Neither the application nor the
supporting affidavit explained why the application
was late and why
the Defendant should still be heard although before caught with dirty
hands.
9.2
In matter number 70014/2011 Molopa-Sethosa, J previously postponed
the matter and ordered the Defendant to pay the wasted costs,
presumably also due to a late delivery of the opposing affidavit.
9.3
in matters number 68363/2011 and 70014/2011 the affidavits in support
of the applications for summary judgment were deposed
to by Ms Lynn
Liesel Lawrence-Hall and in matter number 64923/2011 by Mr Jonas
Malosa Reginald Sema. Both these deponents are managers
in the Legal
Department of the Plaintiff's Vehicle and Asset Finance Divisions.
[10]
AFFIDAVITS IN SUPPORT OF THE APPLICATIONS FOR SUMMARY JUDGMENT:
In
matters number 68363/2011 and 64923/2011 the aforementioned
affidavits are in pari materia with each other and the relevant
portions thereof read as follows:
"3.
I verify and confirm that I have through my position access to all
records and information in the possession of the Applicant
pertaining
to this matter before this Honourable Court and am as such competent
to depose to this affidavit
4.
I have perused the records in my possession and acquainted myself
with the contents thereof and therefore the facts herein contained
herein (sic) fall within my direct knowledge unless the contrary is
indicated.
5.
I swear positively to the facts verifying the cause of action and
the amount claimed.
6.
I state that in my opinion there is no bona fide defence to the
action and that notice of intention to defend has been delivered
solely for the purpose of delay."
[11]
In matter number 70014/2011 the relevant portion of the affidavit in
support of the application for summary judgment reads
as follows:
"2.
I confirm that all files, documents and records pertaining to this
matter are in my possession and under my control.
3.
I can swear positively to the facts herein and state that the
Respondent/Defendant is indebted to the Applicant/ Plaintiff on
the
grounds stated in the summons and particulars of claim and I confirm
the content and correctness of the averments contained
in the summons
and particulars of claim and hereby verify the facts, cause of action
and the amount claimed.
4.
in my opinion the Respondent/Defendant does not have a bona fide
defence to the action and a notice of intention to defend has
been
delivered solely for the purpose of delay."
[12]
During argument of one of the matters I was referred to two as yet
unreported judgments in this division regarding the sufficiency
of
affidavits in support of applications for summary judgment. The first
is case number 32371/2010 in the matter between Standard
Bank of
South Africa (Plaintiff) vs Han-Rit Boerdery CC (First Defendant),
Bernardus Johannes Bezuidenhout (Second Defendant) and
Susanna Maria
Bezuidenhout (Third Defendant) by Southwood J . (judgment date 22
July 2011) (the "Han-Rit Boerderv case").
The second is in
case number 23054/2011 in the matter between Standard Bank of South
Africa Ltd (Applicant) vs Kroonhoek Boerdery
CC (First Defendant),
Andre Nortje (Second Defendant) and Andries Johannes Burger (Third
Defendant) by Tuchten, J (judgment date
1 August 2011) ("the
"Kroonhoek Boerderv case"). Southwood J upheld the
Defendants' point in limine in the matter
before him and refused
summary judgment whilst Tuchten J differed from Southwood J and
granted summary judgment. The
Kroonhoek Boerdery
judgment has been marked reportable but I understand is also being
taken on appeal.
[13]
The crucial portion of the judgment in the
Han-Rit Boerdery
case reads as follows:
"In
the present case it is clear that Ms Govender's knowledge is derived
entirely from the Applicant's ledgers, books of account
and files
pertaining to the Defendants' accounts. She does not allege that she
had any discussions or dealings with the Defendants
in connection
with their accounts and the amounts claimed."
The
learned judge agreed with the decisions in
Shackleton Credit
Management (Pty) Ltd v Microzone Trading 88 CC and Another
2010(5) SA 112 (KZP) and
Firstrand Bank Ltd v Beyer
2011(1) SA 196 (GNP) wherein it was found that a deponent who
acquires his knowledge from documents to which he has access cannot
positively swear to the facts. With reference to
Maharaj v
Barclays National Bank
1976(1) SA 418 (A) at 423A-424 and
Barclays National Bank Ltd v Love 1975(2) SA 514 (D), Tuchten J
differed from the approach in
the
Han-Rit Boerdery
judgment and its reliance on the position taken in
Firstrand
Bank Ltd v Beyer
as follows:
"In
my respectful view, this proposition may be too widely stated. The
question, I suggest, is not the general one whether
the deponent can
competently testify to all the documents with her employer bank but
whether she can competently testify to those
relevant to the case in
question. In the present case Ms Harripersad [the deponent] is the
official within the Applicant at the
head of the department
responsible for the recovery of amounts which the Applicant regards
as being in arrears. She had the means
to acquire personal knowledge
of the contents of the documents attached to the statement of claim
and she says, in effect that
she did so."
[14]
I am furthermore in respectful support of the approach taken in the
Kroonhoek Boerderv case in which reference was made to
Maharai v
Barclays National Bank supra which made "...it quite plain (at
423H) that the principle is that in deciding whether
or not to grant
summary judgment, the court looks at the matter 'at the end of the
day1, on all the documents that are properly
before if.
[15]
The existence of the agreements, the terms thereof, the monthly
payments and at least the issue of arrears (if not the full
extent
thereof) have not been placed in dispute in the three matters under
consideration. In fact, the proposals made to the credit
providers
confirm that the initial payments had not been made or were not
capable of being made, hence the offer of paying some
other amount.
These common cause facts appear to distinguish these cases from that
in the Han-Rit Boerderv case. I am, in these
circumstances, satisfied
that the requirements of
Rule 32
have sufficiently been complied with
and that the following finding in the Kroonhoek Boerderv case, is
equally apposite to all
three matters before me:
7n
these circumstances, in my judgment, it would in the present case be
entirely artificial and in conflict of the principle in
Maharai to
which I have referred to to non-suite the Applicant on any supposed
defect in its affidavit in support of the summary
judgment
application."
[16]
As a last resort, all three Defendants take issue with the fact that
the deponents to the affidavits in support of summary
judgment
verified "... the amount claimed ..." in each instance
whilst, as indicated earlier no specific amount was claimed
as a
prayer. Whilst this may be so, in each instance indebtedness, arrears
payments and damages, being the difference between the
full
outstanding amounts on the various agreements (in each instance
confirmed by an agreed to certificate of balance) minus the
value of
the goods as at the date on which the Plaintiff obtains possession of
same were pleaded. Clearly this calculation and
particularly the
certificates of balance constitute the "amounts claimed"
which had been confirmed on oath. In my view,
nothing turns on these
objections.
[17]
TERMINATION OF DEBT REVIEW:
As
stated above, in all three matters the Defendants have applied for
debt review and the Plaintiff has alleged termination thereof.
All
three Defendants dispute that the termination was properly executed.
[18]
Regarding termination of debt review,
Section 86(10)
of the
National
Credit Act, No. 34 of 2005
, states as follows:
"(10)
If a consumer is in default under a credit agreement that is being
reviewed in terms of the 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; and
(c)
the national credit regulator at any time at least 60 business days
after the day on which the consumer applied for debt review."
[19]
In each instance the agreements concerned were included in the
respective Defendants' debt reviews and the 60 day time periods
have
elapsed. Issue has only been taken with the notices.
[20]
The first of the notices must be to the Defendants as consumers. A
notice constitutes a "document and, in respect of consumers,
Section 65
provides as follows:
"65
Right to receive documents
(1)
Every document that is required to be delivered to a consumer in
terms of this Act must be delivered in the prescribed manner,
if any.
(2)
If no method has been prescribed for the delivery of a particular
document to a consumer, the person required to deliver that
document
must....
(b)
deliver it to the consumer in the manner chosen by the consumer from
the options made available in terms of paragraph (a)"
Section
65(2)(a)(i)
makes provision for notice by ordinary mail.
[21]
It has already been held in Rossouw v Firstrand Bank supra at
paragraph [30] that the option to choose receipt by registered
mail
fall within the statutorily sanctioned postal delivery provided for
in
Section 65(2)(a).
[22]
The Defendants also do not object to the fact that the notices have
been sent by registered mail, they simply (in respect of
case number
68363/2011 and 64923/2011) allege that they have not received them
while in case number 70014/2011 it was alleged that
the debtor
"simply cannot remember" if the notice was received or not.
[23]
in case number 70014/2011 and 64923/2011 the notices provided by the
Plaintiff were each accompanied by an individual slip
from the post
office. These slips were date-stamped and provided for "full
tracking and tracing". For this purpose a
track and tracing
sticker with a unique tracing number is affixed to the slip
indicating mail by registered post. In case number
68363/2011, the
letter is indicated on a "registered mail control sheet. The
control sheet has a specific track and trace
sticker with a unique
tracing number in respect of the letter sent to the Defendant therein
and the control sheet also bears a
date stamp from the relevant post
office. Although the initials of the post office accepting officers
are absent (or unclear in
one instance) the date-stamping and the
tracing stickers in my view, sufficiently distinguish these three
matters from the position
in Rossouw v Firstrand Bank supra.
[24]
I therefore find that the notices to the Defendants as consumers
terminating their individual debt reviews were sufficient
dispatched
by the Plaintiff. The aside comment by the Defendant in case number
68363/2011 that the indication was that his letter
was sent to No. 5
Noas Apache Avenue, Cynthiavale 0182 whilst he lives at No 5 Apache
Avenue, Cynthiavale do not in my view take
the matter much further.
The probabilities are overwhelming that despite the insertion of the
letters "Noas" where it
has been in the letter all
indications are
that
it would have reached No, 5 Apache Avenue where the relevant
Defendant lives once it had got to Cynthiavale with the correct
postal code, lastmentioned which are not disputed.
[25]
The Defendants' objections to the notices having been e-mailed to the
debt counsellors in matters number 64923/2011 and 40014/2011
have a
bit more substance: There is no corresponding provision regarding
debt counsellors as there is for consumers in
Section 65
of the
National Credit Act. Insofar
as
Section 86(10)
makes provision for
the giving of notices "... in the prescribed manner" the
"manner" could only be prescribed
by regulation. None of
the regulations promulgated in terms of the
National Credit Act,
being
GNR 489 of May 2006, GNR 1209 of November 2006 and GN 789 of 28
August 2007 make provision for the notices contemplated in
Section
86(10).
Insofar as
Regulation 1
of GNR 489 of 31 May 2006 in its
definition of "deliver" makes provision for "sending a
document by e-mail, that
definition only applies for those notices
which are provided for in the regulations (and not the Act). See also
Rossouw v Firstrand
Bank supra, paragraphs [24] to [27].
[26]
My attention has, as in the Rossouw v Firstrand Bank matter,
repeatedly been drawn to the contents of
Section 168
of the
National
Credit Act which
provides as follows:
"Unless
otherwise provided in this Act, a notice, order or other document
that, in terms of this Act, must be served on a person
would have
been properly served when it has been either-
(a)
delivered to that person or
(b)
sent by registered mail to that person's lastknown address."
[27]
It has already been found (in Rossouw v Firstrand Bank supra at
paragraph [31 ]) that the "... catch-all provisions of
Section
168
of the Act, dealing with service of documents, which in the legal
context is synonymous with 'delivery of documents' ... deems sending
a document by registered mail to a person's lastknown address proper
service
[28]
It is clear from a reading of the Act that a debt counsellor is a
very important cog in the debt review machinery and clearly
a very
important person in the life of a consumer who has applied for debt
review. One can say this without even listing the functions
and
duties of a debt counsellor. The importance of the debt counsellor
and the fact that he should be notified with regards to
anything that
pertains to consumers for whom he acts as debt counsellor, in
particular when the debt review process which he manages
or
participates in is sought to be terminated is readily understandable.
It is quite easy to envisage that the legislature would
have
envisaged and intended that documents of this nature be "served'
on a debt counsellor. In the absence of any other provision
in the
Act or as prescribed in the regulations, I find that
Section 168
is
applicable to notices sent in terms of
Section 86(10)
to debt
counsellors, i.e., they must be delivered or sent by registered mail.
The practice of plaintiffs by unilaterally choosing
to send these
notices by e-mail or, as in the case in case 68363/2011 by fax, does
not comply with the Act.
[29]
I interpose to state that in case number 68363/2011 the notice was
faxed to the debt counsellor with a fax number in which
the last
digit differed by one from the correct fax number. During argument,
counsel for the Plaintiff conceded this but argued
that the point was
not taken in a bona fide manner as the alleged incorrect fax number
was indeed that of the CEO of the debt counselling
firm. Counsel
sought to convince me of this fact by way of the handing up of a
letter in response by the said CEO. Although the
point does appear to
be somewhat spurious, I cannot of course accept documents from the
Plaintiff outside that which was provided
for in
Rule 32
and which
should have formed part of the annexures to its particulars of claim.
I must therefore disregard this fact and find that
the notice was
sent to the incorrect fax number. Having regard to the conclusion
reached above, this is of course of no consequence
and merely pointed
out for the sake of completeness.
[30]
The Defendants also object to the fact that the termination notices
were sent in each instance to the National Credit Regulator
by
e-mail. The e-mail address was to terminationsi&ncr.orcj.za.
Counsel for the Defendants conceded in argument that this was
a
standard practice.
[31]
The e-mailing of letters to the National Credit Regulator is on a
different footing than that of debt counsellors. The National
Credit
Regulator is not, in the instance of termination of the debt review,
individually involved and, upon a reading of the Act,
need to receive
notice of such terminations for reporting and statistical purposes.
[32]
Upon a re-reading of the regulations, the "definitions"
contained in
Regulation 1
of the regulations referred to above,
contained under the definition of the term "deliver" two
further sentences. These
sentences appear not to be definitions but
rather substantive regulations and provide as follows:
"Where
notices or applications are required to be delivered to the National
Consumer Tribunal, such delivery shall be done
in terms of the
Tribunal's rules. Where notices or applications are required to be
delivered to the National Credit Regulator,
such delivery shall be
done by way of hand, fax, e-mail or registered mail to the registered
address of the National Credit Regulator"
[33]
One can easily imagine a number of reasons why the various options
are given. Vast amounts of notices and documents must as
a matter of
course be received by the National Credit Regulator. Electronic mail
will facilitate this. The volume of documents
received by the
National Credit Regulator (i.e. in respect of each and every consumer
under debt review) must, by its very nature,
be much more than that
received by individual debt counsellors who only have to deal with
their "own" consumers under
debt review. Apart from the
fact that the above quoted portions from the regulations appear to be
substantive prescriptions (and
not only defining what the term
"deliver" means), I have been informed from the Bar that
the e-mail address referred
to above was a specific "portaf
created and chosen by the National Credit Regulator for the specific
purpose of receiving
notices of terminations of debt review. It is
therefore clearly a publicly announced address of choice by the
statutory body. This
creation of the portal and express choice of
address by the National
Credit
Regulator corresponds with my reading of the substantive nature of
the above quoted portion of the regulations. I therefore
find that
notice of termination of a debt review by e-mail to the National
Credit Regulator at its chosen e-mail address (and proof
of the
sending thereof) constitute sufficient compliance with the
regulations and the
National Credit Act.
[34
]
In terms of
Section 130(4)(b)(ii)
, a court is entitled to adjourn any
matter before it to enable compliance with such outstanding
provisions of the
National Credit Act as
the court may deem
appropriate. I intend exercising this right and, having regard to the
novel influence the provisions of the
National Credit Act has
on
pending legal proceedings as illustrated in the CoMett judgment, I do
not believe that such orders would undermine summary judgment
procedures. I am fortified in this view by the judgment in Standard
Bank of South Africa Ltd v Rockhill & Another 2010(5) SA
252
(GSJ).
[35]
APPLICATIONS IN TERMS OF
SECTION 86(11)
OF THE
NATIONAL CREDIT ACT:
In
each of the three applications under consideration, the Defendants
stated that, should I find that the debt review was in fact
terminated, they will launch an application for resumption thereof in
terms of
Section 86(11)
of the Act. They attempted to indicate that
they have reasonable prospects of success regarding such resumption
applications and
requested adjournments of the summary judgment
applications for purpose of filing such applications.
[36]
The finding to which I came in paragraph [28] supra, strictly renders
these requests inapplicable but, having regard to the
orders which I
intend making, the issue of the requests may still be relevant.
Before considering the Defendants' requests, it
is apposite to be
mindful of what the Supreme Court of Appeal has found in Co I left v
Firstrand Bank Ltd 2011(4) SA 508 (SCA).
Therein it was found that:
"
Section
86(10)
entitles a credit provider to terminate the debt review
relating to a specific credit agreement ('if a consumer is in default
under
a credit agreement that is being reviewed), not the 'hearing'.
The hearing continues and, if several credit agreements are being
reviewed, continues in respect of the others.... The right of the
credit provider to terminate the review is balanced by
Section 86(11)
which provides that, if the credit provider has given notice to
terminate and proceeds to enforce the agreement, the Magistrate's
Court may order that the debt review resumes on any conditions the
court considers to be just in the circumstances"
See
paragraphs [17] and [18].
[37]
It is clear that this is also what has happened in all three of the
abovementioned instances before me.
[38]
It is also clear that the three Defendants in the applications before
me each have no defence on the merits of the Plaintiffs
claims
against them. They in fact rely on their inability to comply with
their contractual obligations and the debt review processes
which
resulted therefrom. Despite the absence of a defence on the merits,
the following has also been found in Collett v Firstrand
Bank supra
at 518G-519A:
"Over-indebtedness
is not a defence on the merits. However, because of its extraordinary
and stringent nature, a court has
an overriding discretion to refuse
an application for summary judgment. It would be proper for a
defendant to raise termination
of the debt review by reason of the
credit provider's failure to participate or its bad faith in
participating when application
for summary judgment is made. These
issues may be raised, not as a defence to the claim, but as a request
to the court not to grant
summary judgment in the exercise of its
overriding discretion."
[39]
In similar fashion as in the Collett-matter. no request for a
resumption of the debt review was made to this court but merely
a
request for a postponement so as to enable the Defendants to make it
in the Magistrate's Court.
[40]
I can find no indication of bias or mala fides on the part of the
Plaintiff in seeking to enforce its contractual rights and
in not
accepting the Defendants' proposals. In each instance, the amount
and/or time of arrears are substantial. The acceptance
of the
proposals would also mean that the time for termination of the
initial agreements is extended in each instance, allowing
the
Defendants to ride around with and/or make use of the Plaintiff's
vehicles without making payment in the terms as initially
contracted
between the parties and for an even longer period than initially
envisaged. One can well understand a plaintiff's frustration
and
motivation in enforcing its contract which included the finance
charges from which the Plaintiff makes its living as it were
and/or
from which it complies with its obligations, to its shareholders.
[41]
On the other hand, one has both the indication of dire circumstances
of the Defendants and their stated intention to comply
with the
proposals prepared by their debt counsellors.
[42]
From the facts originally stated by me above, there is, to my mind, a
very important distinguishing feature in this regard
between the
three Defendants: Whilst the proposals by the Defendants in case
number 68363/2011 and 70014/2011 contain proposed
instalments
amounting to somewhere between 60% and 70% of the original
instalments, the Defendant in case number 64923/2011 proposes
making
instalments to settle the outstanding balance due on his contract in
the amount of R4 500,00 per month, whilst the original
instalments
amounted to only R2 820,28 per month. When I posed the question as to
why the Plaintiff as credit provider was not
prepared to accept a
higher instalment than initially agreed to, the answer was that the
credit provider had now "waited long
enough", was not
satisfied with the delay already caused by arrears payments and has
no faith in the Defendant making good
his promise contained in his
proposal. Whilst these may be valid considerations, the refusal of
the Defendant's proposal do not
sound consonant with the tenor of the
Collett v Firstrand Bank judgment and is surely a factor which a
court must take into account
in exercising its discretion.
[43]
Save for the issues raised above and, in view of the orders which I
propose to make, I am not inclined to otherwise accede
to the
requests for postponement.
[44]
REARRANGEMENT IN TERMS OF
SECTION 85
OF THE
NATIONAL CREDIT ACT:
>
In
the last instance, the Defendants state that this court may rearrange
their payment obligations in terms of the agreement in
the event of
them being over-indebted. There is no need for such a finding in
respect of the Defendants in case number 68363/2011
and 70014/2011 as
their debt counsellors have already made such findings and their
payment obligations will presumably then be
rearranged at the
resumption of their debt review processes (in respect of their other
obligations than those presently under consideration).
In respect of
the Defendant in case number 64923/2011, in view of the order which I
propose to make, I find no need to make a further
finding in terms of
Section 85
of the
National Credit Act.
[45
]
SUMMARY OF FINDINGS:
In
summary then, I find as follows:
45.1
The Defendants have disclosed no defences on the merits of the
Plaintiffs claims against them.
45.2
But for the provisions of the
National Credit Act and
the fact that
the Defendants have initiated debt review processes, the Plaintiff
would be entitled to summary judgment in the terms
as claimed as
against each of the three Defendants.
45.3
The notices terminating debt review processes sent by e-mail or by
fax to debt counsellors do not comply with the
National Credit Act.
Such
notices must be served according to the provisions of
Section
168
of the
National Credit Act.
45.4
The
terminations of the debt review processes in respect of the
agreements under consideration would not prevent the Defendants from
applying to the Magistrate's Court for the resumption of their debt
review processes and the hearings in respect of their other
obligations can, in accordance with the Rossouw-iudament, proceed.
45.5
I do not intend making findings or orders in terms of
Section 85
of
the
National Credit Act.
45.6
I
intend exercising my discretion in case number 64923/2011 only in
favour of the Defendant.
45.7
Although the Plaintiffs in case numbers 68363/2011 and 70014/2011
have not complied with the provisions of the
National Credit Act in
respect of service of their termination of debt review notices on the
debt counsellors, this appears from the number of similar
conduct in
various applications in this court, to have constituted a practice. I
therefore do not intend punishing the Plaintiff
in these cases with
costs.
45.8
The Defendant in case number 64923/2011 was, as already aforestated,
in default with the delivery of his opposing affidavit.
He also has
not fully nor timeously complied with his condonation application
requirements. He should bear the wasted costs occasioned
by his
dilatoriness but, as is apparent from this judgment and, in the
interests of justice, I still allowed and considered his
opposing
affidavit rather than close the doors of this court on him in respect
of a summary judgment procedure.
[46]
ORDERS.
I
make the following orders:
46.1
In case number 64923/2011: Leave is granted to the Defendant, costs
to be costs in the cause.
46.2
In case numbers 68363/2011 and 70014/2011:
46.2.1
The summary judgment applications are postponed sine die.
46.2.2
Should the Plaintiffs wish to continue with the summary judgment
applications, they must, in terms of
Section 130(4)(b)(ii)
comply
with
Section 168
of
the
National Credit Act in
respect of the serving of their notices of
termination of the respective Defendants' debt review processes as
provided for in
Section 86(10)(b).
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ine-height: 200%">
46.2.3
Save for ordering the Defendant in case number 64923/2011 to pay the
wasted costs occasioned by the postponement of the application
on 7
March 2012, I make no further order as to costs.
N
DAVIS AJ
ACTING
JUDGE OF THE HIGH COURT