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
>>
2011
>>
[2011] ZAFSHC 198
|
|
Firstrand Bank Ltd v Weyers and Another (3787/2011) [2011] ZAFSHC 198 (8 December 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
CASE NO. 3787/2011
In
the matter between:
FIRSTRAND
BANK LIMITED
…............................................
PLAINTIFF
and
HELENA
MARIA WEYERS
…......................................
1
st
DEFENDANT
PETRONELLA
CATHARINA JOHNSON
…................
2
nd
DEFENDANT
_____________________________________________________
CORAM:
NAIDOO, AJ
_____________________________________________________
JUDGMENT BY:
NAIDOO, AJ
HEARD ON:
24
NOVEMBER 2011
DELIVERED ON:
8
DECEMBER 2011
_____________________________________________________
NAIDOO AJ
[1] This is an
application for Summary Judgment. The Plaintiff, issued summons
against the defendants for payment of the sum of
R931, 769.00,
interest thereon and costs, together with an order declaring the
property of the defendants specially executable
by virtue of the
provisions of a mortgage bond that the plaintiff held over the
property. The plaintiff was represented by Mr HJ
Benade and the
defendants were represented by Mr JJ Buys.
[2] The defendants
obtained a home loan from the plaintiff in July 2007 as a result of
which a mortgage bond was registered over
their property to secure
the loan. It appears that the defendants experienced financial
difficulties and applied for debt review
in terms of section 86 of
the National Credit Act 34 of 2005 (the Act) in March 2011. It
further appears that an order, in terms
of section 87(1)(b) of the
Act, re- arranging the debts of the defendants was granted on 12
August 2011. The relevant papers or
order were not placed before me.
[3] The plaintiff’s
claim was excluded from the debt review as well as the order
rearranging the defendants’ debts.
In September 2011, the
plaintiff issued summons against the defendants. The action was
defended by the defendants, hence the application
for summary
judgment, which was opposed by the defendants. After the plaintiff
launched the application for summary judgment, the
defendants filed
an application in terms of section 86(11) of the Act in the
Magistrates Court, and only thereafter filed their
affidavit opposing
summary judgment. The defendants deny, in their opposing affidavit,
that they have no bona fide defence to the
plaintiff’s claim,
and it appears that the defence they rely on is the fact that they
have filed an application in terms
of section 86(11) of the Act,
which they claim should be heard before the summary judgment
application is heard.
[4] Rule 32 (3) of the
Uniform Rules of Court requires the defendants to have a defence that
is bona fide and good in law. In the
matter of
Breitenbach v Fiat SA (Edms) Bpk
1976(2) SA 226 (TPD), Colman J stated at p227 G
“
One of the things clearly required of a
defendant by Rule 32(3)(b)is that he set out in his affidavit facts
which, if proved at
the trial, will constitute an answer to the
plaintiff’s claim”.
It is clear, therefore,
that in order for the court to assess whether the defence raised by a
defendant is bona fide he/she must
provide adequate information about
such defence, which amounts to a full disclosure of his/her defence.
While the sub-rule requires
the defendant to
“
disclose
fully the nature and grounds of the defence and material facts relied
upon”,
it
does not, however, demand the impossible and it will suffice
“
if the defendant swears to a defence, valid in law, in a manner which
is not inherently and seriously unconvincing”
.
(See
Breitenbach above)
[5] The defendants do not
deny the plaintiff’s claim, nor do they deny being in arrears
with their repayments in terms of
the loan agreement entered into
with the plaintiff. Although the court’s best efforts to elicit
the reason for the exclusion
of the plaintiff’s claim from the
debt rescheduling arrangement did not yield any satisfactory answer,
the fact remains that
the plaintiff’s claim was so excluded.
[6] Section 86(10) of the
Act provides as follows:
“
(10) If a consumer is in default under a
credit agreement that is being reviewed 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; and
(c)
the National Credit Regulator,
at any time at least 60 business days after the date on which the
consumer applied for the debt review.”
It is clear that this
section gives to the credit provider the option of terminating a debt
review relating to a credit agreement
“
that is being
reviewed in terms of this section”
(my emphasis
).
It
is common cause that the plaintiff’s claim was excluded from
the debt review in this matter, and was therefore not being
reviewed.
The plaintiff, however, inexplicably gave notice of termination of
the debt review in terms of this section on 25 August
2011, some
thirteen days after the court made an order in terms of section 87 of
the Act, re-arranging the debts of the defendants.
Mr Benade, in his
address to court, put this down to “over-cautiousness” on
the part of the plaintiff and asked the
court to ignore that notice.
The notice does indeed fall to be ignored, as it was out of order,
firstly because the debt review
did not include the plaintiff’s
credit agreement and secondly because it was served considerably
after the debt rescheduling
order was made.
[7] Section 86(11)
provides thus:
“(1 1) If a credit provider who has given notice to terminate a
review as contemplated in subsection (10) proceeds to enforce
that
agreement in terms of Part C of Chapter 6, the Magistrate’s
Court hearing the matter may order that the debt review
resume on any
conditions the court considers to be just in the circumstances.”
As indicated above, the
plaintiff’s claim in terms of the credit agreement it entered
into with the defendants was not included
in the debt review nor was
it part of the rescheduling order. In the light of the available
information, the application by the
defendants in terms of this
section appears to be inappropriate, and not applicable. It may have
stood the defendants in better
stead if they had applied for a
variation of the debt rescheduling order.
[8] The next issue to
consider is whether the plaintiff is entitled to summary judgment. It
is well settled in our law that summary
judgment should only be
granted where the plaintiff has established his claim clearly and the
defendant has failed to establish
a bona fide defence. In my view,
this means that the plaintiff must show not only that he has a claim
which falls within the ambit
of Rule 32 of the Uniform Rules, but
that he has complied with all legal requirements, including statutory
requirements, in order
to perfect his claim and make it unanswerable.
[9] . Having said all of
the above, it must also be said that the lack of details of the debt
review proceedings or the court order
relating to the re-arrangement
of their debts has created much doubt about the debt review process
in this matter and the correctness
of the manner in which the parties
proceeded. More importantly, neither the defendants nor the plaintiff
have been able to provide
any satisfactory information as to why the
plaintiff’s claim was excluded from the debt review, especially
as the plaintiff
appears to be the creditor with the largest claim.
The plaintiff’s act in filing the notice in terms of Section
86(10) of
the Act, as it did, simply adds to the doubts that have
been created.
[10] As things stand, it
is clear that the defendants are over-indebted and appear to be in
need of the remedies afforded them by
the
National Credit Act.
Whatever
the reasons are for the current situation regarding the
exclusion of the plaintiff’s claim from the debt review, it
seems
to me that the plaintiff’s claim is not clearly
established.
Section
32(5)
gives the court a discretion to grant or refuse summary
judgment. In this matter it is
reasonably possible that
the plaintiff’s application is defective or that the defendants
have a good defence (
Mowshenson & Mowshenson v Mercantile
Corporation of SA Ltd
1959 (3) SA 362
(W) at 366F-G).
The
granting of summary judgment is based upon the supposition that the
plaintiff’s claim is unimpeachable and also that
the
defendant’s defence is bogus or bad in law – per Corbett
JA in Maharaj v Barclays National Bank Ltd 1976(1) SA
418 (A) at
423G-H. In this case, the situation is much too nebulous at the
moment and I am of the view that granting summary judgment
at this
point would amount to closing the doors to the defendants and would
be unduly prejudicial to them. In my view, therefore,
summary
judgment ought not to be granted.
[11] I, accordingly, make
the following order:
The application for
Summary Judgement is dismissed;
The defendant is given
leave to defend the action;
The costs are to be
costs in the cause.
____________
NAIDOO, AJ
Counsel for Plaintiff:
Adv HJ Benade
Instructed by
Symington and De Kok 169b Nelson Mandela Drive
Bloemfontein
Counsel for the
Defendants: Adv JJ Buys
Instructed by:
Botha Hefer Inc
Property Park
60B Kellner Street
Bloemfontein