About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 293
|
|
Standard Bank of South Africa v Nijiri (30057/2012) [2012] ZAGPPHC 293 (16 November 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 30057/2012
Date:
16 November 2012
In
the matter between:
THE
STANDARD BANK OF SOUTH
AFRICA
....................................
Plaintiff
And
ELIZAPHANSON
MWAURA
NIJIRI
......................................................
Defendant
JUDGMENT
PRETORIUS
J.
[1]
The defendant opposes this application for summary judgment. He is
unrepresented and has been appearing as such from 30 August
2012. On
30 August 2012 the defendant applied for a postponement to enable him
to file a supplementary affidavit. On 17 October
2012 the defendant
filed a further affidavit. In the supplementary affidavit he set out
that he had not received the notice in
terms of section 129 of the
National Credit Act.
[2]
The plaintiff lent and advanced monies to the defendant on an
overdraft facility. The defendant acknowledges that the address
that
the notice in terms of section 129 of the National Credit Act was
sent to is correct. The plaintiff proved that the notice
was sent to
the designated post office. In Sebola v Standard Bank
2012 (5) SA 142
(CC) the Constitutional Court held at paragraph 87:
“
The
requirement that a credit provider provide notice in terms of s
129(1)(a) to the consumer must be understood in conjunction
with s
130, which requires delivery of the notice. The statute, though
giving no dear meaning to ‘deliver1, requires that
the credit
provider seeking to enforce a credit agreement aver and prove that
the notice was delivered to the consumer. Where the
credit provider
posts the notice, proof of registered despatch to the address of the
consumer, together with proof that the notice
reached the appropriate
post office for delivery to the consumer, will in the absence of
contrary indication constitute sufficient
proof of delivery. ”
[3]
In this instance the “track and trace” report shows that
the item had not been collected at the Bryanston Post Office
by the
defendant. The court finds that the plaintiff had complied with the
directive by the Constitutional Court as set out in
the Sebola
decision.
[4]
The complaint by the defendant that the plaintiff had recklessly
granted credit to him cannot be entertained as he had indicated
during argument that he had a property which sale would have enabled
him to pay off his overdraft. His further contention that
the amount
is not correct is not set out in sufficient detail as he only
indicates it is wrong with no details.
[5]
The defendant admitted during argument that he does not have the
means presently to pay the plaintiff the amount owing. The
summons
had already been served on 23 June 2012 and the defendant entered his
notice of intention to defend the matter on 27 July
2012. The
application for summary judgment was delivered on 7 August 2012. The
application was in court on 30 August 2012 where
the defendant
applied for a postponement to deliver a supplementary affidavit. The
court granted the request and the defendant
delivered a supplementary
affidavit, although he did not rely on the fact that he had applied
for debt counselling in the first
supplementary affidavit.
[6]
The first time the defendant mentions debt counselling is in the
third affidavit and the letter of confirmation by the debt
counsellor
is dated 16 October 2012 - 6 weeks after the defendant had initially
appeared in court and after the defendant had served
his second
suplementary affidavit. Therefore no legal proceedings were commenced
in this matter whilst the claims were pending
before a debt
counsellor. It seems as if the defendant is desperate to avoid
summary judgment in this matter, although he has no
bona fide
defence.
[7]
The court has considered all the arguments, and read all the
affidavits, but can come to no other conclusion than that the
defendant owes the money to the plaintiff, that he has no bona fide
defence and he has admitted that he is trying to delay the matter
to
enable him to pay the amount in the future.
[8]
In these circumstances the court grants summary judgment as follows:
1.
Payment of the sum of R430 814.81;
2.
Interest on the sum of R430 814.81 at the rate 15% per annum as from
26th March 2012 to date of final payment;
3.
Costs on an attorney and client scale;
Judge
Pretorius
Case
number : 30057/2012
Heard
on : 14 November 2012
For
the Applicant / Plaintiff : Adv Mollentze
Instructed
by : Blakes Maphanga inc
For
the Respondent : In Person
Date
of Judgment : 16 November 2012