About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2012
>>
[2012] ZAFSHC 219
|
|
Standard Bank of South Africa Ltd v Du Randt (2985/2012) [2012] ZAFSHC 219 (22 November 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2985/2012
In the matter between:-
STANDARD BANK OF
SOUTH AFRICA BEPERK
....................
Plaintiff
and
HELENA DU RANDT
...............................................................
Defendant
_____________________________________________________
JUDGMENT BY:
MATLAPENG, AJ
_____________________________________________________
HEARD ON:
15 OCTOBER 2012
_____________________________________________________
DELIVERED ON:
22 NOVEMBER 2012
_____________________________________________________
[1]
This is an application for summary judgment wherein the following is
claimed against the defendant:
(a)
confirmation of cancellation of the agreement as cited in the
plaintiff’s particulars of claim;
(b)
return of the following goods namely Audi TT motor vehicle with
engine number TRUZZZ8J471011625, chassis no BWA090454;
(c)
costs on attorney and client scale;
(d)
remainder of the prayers as contained in the particulars of claim to
be postponed sine die.
The
application is opposed.
[2]
The factual matrix is briefly: In 2007 the plaintiff and the
defendant entered into a written instalment sale agreement for
the
sale of the Audi motor vehicle at the agreed price of R525 705,60. In
terms of the agreement, the defendant bound herself to
pay monthly
instalments of R8 761,68. The defendant failed to comply with her
monthly obligations and is in arrears. In terms of
the written
agreement the defendant will be in breach of the agreement, amongst
others, if she fails to make stipulated payments
at regular intervals
or if judgment is entered against her name and remains unsatisfied
for a period of seven days. This will entitle
the plaintiff to
terminate the agreement.
[3]
The defendant entered appearance to defend the action which resulted
in the current application for summary judgment by the
plaintiff.
[4]
It is trite that for a defendant to successfully resist an
application for summary judgment, he has by an affidavit to satisfy
the court that he has a
bona fide
defence to the claim. Such a
defence has to be a defence in law and the facts set out in the
affidavit must fully disclose the
nature and grounds of such defence
and the material facts relied upon. See
MAHARAJ v BARCLAYS
NATIONAL BANK LTD
1976 (1) SA 418
(A).
[5]
An application for condonation for the late filing of the defendant’s
affidavit in opposition was made and not opposed.
I granted the said
condonation. In her opposition to the application, the defendant
raises a technical objection namely that her
financial affairs are
currently under debt review in terms of the National Credit Act, 35
of 2005 (“the NCA”) and the
plaintiff is debarred from
enforcing the current claim unless the jurisdictional requisites
envisaged in s 88(3) of the NCA have
been met.
[6]
Defendant submits that in order for s 88(3) of the NCA to find
application the jurisdictional requirements mentioned in s 88(3)(a)
should co-exist with any of the requirements mentioned in s 88(3)(b).
In support of her contention that s 88(3) is not applicable,
the
defendant mentions the following:
(i)
that she was not in arrear with the monthly instalments in terms of
the agreement when the application for debt review was made;
(ii)
that she is not in arrears with the rearranged payment and if any
non-payment has occurred, it was not due to any fault of
hers;
she
was not aware of the judgments that were obtained against her.
[7]
On behalf of the plaintiff it was submitted that in order for s 88(3)
to apply, any one of the jurisdictional requisites mentioned
in that
section has to be present. As the defendant has defaulted on the
agreed re-arranged payment plan, one of the requisites
has been
established and the plaintiff was thus entitled to institute the
action against the defendant. In support of this contention,
the
plaintiff referred to a passage in the matter of
FIRSTRAND BANK
v FILLIS
2010 (6) SA 565
(ECP) (the
FILLIS
case) where it was stated at paragraph [14]:
“
[14]
The second argument raised is, in my view, equally lacking in merit.
The Act provides very extensive protection to a consumer
who has
become overindebted, whether it be of his or her own making or
through circumstances beyond his or her control. Not
only does a
rearrangement afford him or her alleviation from the onerous monthly
obligations that he or she has in all seriousness
undertaken to his
or her credit providers, but he or she also enjoys the protection of
s 103(5) against the ravaging effect of
escalating interest whilst he
or she remains in default under the credit arrangement. If,
however, he or she fails to embrace
this opportunity, or he or she
is, notwithstanding this very considerable assistance, unable to
comply with his or her restructured
debt commitment, the Act permits
the common law to run its course.”
I am of the view that the
paragraph referred to does not support the plaintiff’s cause.
[8]
Section 88(3) of the NCA provides as follows:
“
(3)
Subject to section 86(9) and (10), a credit provider who receives
notice of court proceedings contemplated in section 83 or
85, or
notice in terms of section 86(4)(b)(i), may not exercise or enforce
by litigation or other judicial process any right or
security under
that credit agreement until-
(a) the consumer
is in default under the credit agreement; and
(b) one of the
following has occurred:
(i) An event
contemplated in subsection (1)(a) through (c); or
(ii) The
consumer defaults on any obligation in terms of a re-arrangement
agreed between the consumer and credit providers, or ordered
by a
court or the Tribunal.”
[9] It seems clear to me
that the whole question depends on the interpretation of s 88(3) and
such an answer will be resolutive
to the issue at hand. In order to
give proper meaning to the section, it has to be read as a whole,
especially paragraphs (a) and
(b) which have to be read together. In
my judgment the word “
and
” at the end of s
88(3)(a) is used in a conjunctive sense. Had it been the intention of
the legislature that any one of the
jurisdictional requisite should
suffice it would have achieved that purpose by the use of the word
“
or
”. It follows therefore that the jurisdictional
requirements in s 88(3)(a) and s 88(3)(b) are not stand alone and
have to
be present at the same time to enable plaintiff to proceed
with an action against the defendant. This is also the conclusion
reached
in the
FILLIS
case (
supra
) where the
following is stated in paragraph [16]:
“
[16] It
follows, in my view, as a matter of interpretation, that once the
jurisdictional requirement set out in s 88(3)
(a)
co-exists with any one of the jurisdictional requirements set out in
s 88(3)
(b)
,
the credit provider is at liberty to proceed and to exercise and
enforce, by litigation or other judicial process, any right
or
security under his credit agreement, without further notice.”
[10] The assertions of
the defendant that none of the jurisdictional requirements were met
are belied by the annexures to the plaintiff’s
summons. When
the debt restructuring order was granted by the magistrate’s
court on 19 August 2010 firstly there were already
two judgments
obtained against the defendant. That these judgments were granted on
6 January 2010 and were more than seven days
old is beyond dispute.
This went against the provisions of the instalment sale agreement. In
answer to this, the defendant states
that she has instructed her
attorneys to attend to the rescission of the judgments. In my opinion
giving instructions to an attorney
to apply for rescission of
judgment, will not cure the breach of agreement as the conduct
complained of has already occurred. Secondly,
when the application
for debt review served before the magistrate’s court, the
defendant according to her own record of payments
was making
irregular payment.
[11] Her travails do not
end there. After the debt review order was granted, the defendant did
not comply with the order in that
she continued making irregular
payments that were less than the agreed amount as per restructured
payment plan. When faced with
difficulty she explains that she had
paid in full and the fault lies with the debt counsellor. She makes
this bald statement unsupported
by any proof in the form of bank
statements showing that indeed she made payments to the debt
counsellor.
[12]
The NCA was enacted to be a cushion to consumers who are in financial
trouble either as a result of their own folly or through
the
vicissitude of economic climate, not to fall with a big bang but to
have a soft landing. It was never meant to be used as shield
and a
refuge for people who though unable to comply with agreed financial
commitments would cling to the life style they became
accustomed to
even though it is evident that they cannot afford such life style.
[13] In view of the
above, the conclusion is inescapable that the defendant does not have
a
bona fide
defence. The nature and grounds of the defence and
the material facts relied upon are not borne by the facts. Her
reliance on s
88(3) of the NCA is unfortunately misplaced and has no
merit. The facts clearly show that the plaintiff has established that
the
jurisdictional requirements as provided in s 88(3)(a) and (b) are
present in this matter and is entitled to succeed.
ORDER
[14] As a result I make
the following order:
1. Cancellation of the
agreement between the parties as cited in the particulars of claim is
hereby confirmed;
2. The defendant is
ordered to return the following goods to the plaintiff:
Audi TT 2.0T FSI
Tronic
Registration Number:
Unknown
Engine number:
TRUZZZ8J4711625
Chassis number:
BWA090454
Costs on attorney and
client scale;
Remainder of the prayers
contained in the plaintiff’s particulars of claim are
postponed
sine die
.
__________________
D.I.
MATLAPENG, AJ
On behalf of plaintiff:
Adv. L.W. de Beer
Instructed by:
Symington & De Kok
BLOEMFONTEIN
On behalf of defendant:
Adv. J.J. Buys
Instructed by:
Botha Hefer Inc
BLOEMFONTEIN
/sp