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[2011] ZANCHC 21
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Standard Bank of South Africa Ltd t/a Standard Vehicle & Asset Finance v JCR Belange CC and Another (2138/2010, 2139/2010, 2141/2010, 2142/2010) [2011] ZANCHC 21 (30 September 2011)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Saakno: / Case number:
2138 / 2010
2139 / 2010
2141 / 2010
2142 / 2010
Datum verhoor: / Date
heard:
09 / 09 / 2011
Datum gelewer: / Date
delivered:
30 / 09 / 2011
In the matter between:
STANDARD BANK OF
SOUTH AFRICA LIMITED T/A
STANDARD VEHICLE &
ASSET FINANCE
…..................
Applicant
and
JCR BELANGE CC
…..........................................
First
Respondent
PHILIP RUDOLF RABIE
…............................
Second
Respondent
Coram:
Hughes-Madondo AJ
JUDGMENT
HUGHES-MADONDO AJ
[1] The applicant
sought summary judgment against the respondents in four separate
actions. In view of the fact that the claims
were similar in their
nature against the respondents, all four applications were dealt with
simultaneously. All four applications
proceeded as opposed.
[2] In the summons the
applicant sought the following relief, jointly and severally, against
the respondents:
2.1 a specified amount
of money as set out in the agreements upon which the actions were
based;
2.2 interest at a zero
rate; and
2.3 costs on a scale as
between attorney and client plus VAT thereon;
ALTERNATIVELY:
2.4 confirmation of
termination of the agreement;
2.5 return of the
goods;
2.6 damages to be
proved in terms of the provisions of each agreement;
2.7 interest in terms
of the provisions of each agreement; and
2.8 costs on the scale
as between attorney and client plus VAT thereupon.
[3] In these summary
judgment proceedings the applicant sought the relief as claimed in
the summons and costs of the applications.
[4] It is trite that in
terms of Rule 32 of the Rules of court a court might grant summary
judgment in respect of claims based on
a liquid document, for a
liquidated amount, for delivery of specified movable property and for
ejectment together with interest
and costs.
[5] The respondent when
opposing an application for summary judgment is required to satisfy
the court that he or she has a ‘
bona fide’
defence
to the action. In the respondent’s papers it must disclose
fully the nature and grounds of its defence and the material
facts
that it relies upon. See
MAHARAJ V BARCLAYS NATIONAL BANK Ltd
,
1976 (1) SA 418
(A) AT 426. In essence the set of facts set out must
be such that if proven at trial they would constitute a defence to
the claim
of the plaintiff. See
BREITENBACH V FIAT SA (EDMS) Bpk
,
1975 (2) SA 226
(T) at 228B-D and D-E;
TESVEN CC AND ANOTHER V SA
BANK OF ATHENS
,
2000 (1) SA 268
(SCA).
[6] If the defendant
fails to set out a bona fide defence or to raise a triable and
arguable issue and the plaintiff can establish
its case clearly, then
summary judgment should be granted. On the other hand if the
plaintiff has an unanswerable case and it’s
reasonably possible
that the defendant has a good defence, then the defendant must be
granted leave to defend. See
MARSH AND ANOTHER V STANDARD BANK
,
2000 (4) SA 947
(W) at 949-950.
[7] During June 2007,
the applicant entered into four credit transaction instalment
agreements (the “agreements”) with
the first respondent.
The claims against the second respondent are in relation to the four
suretyship agreements signed by the
second respondent in favour of
the applicant in respect of the agreements with the first respondent.
[8] The respondents in
their opposition to the summary judgment application raised a number
of defences. The issue that I am required
to decide is whether or not
the defences raised by the respondents are sufficient to resist
summary judgment and are they defences
envisaged in terms of Rule
32(3)(a).
[9] I will not deal
with all the defences raised as there are many. However in respect of
the first respondent, there exists one
defence of substance. The
first respondent alleges that the actions instituted by the applicant
are premature, in that the applicant
failed to comply with the
provisions of the National Credit Act No. 34 of 2005 (the “NCA”).
[10] The failure on the
part of the applicant to comply with the NCA lies squarely within in
the ambit of section 129 of the NCA.
[11] Section 129 of the
NCA reads as follows:
"129(1) If the
consumer is in default under a credit agreement, the credit provider
–
(a) may draw the
default to the notice of the consumer in writing and propose that the
consumer refer the credit agreement to a
debt counsellor, alternative
dispute resolution agent, consumer court or ombud with jurisdiction,
with the intent that the parties
resolve any dispute under the
agreement or develop and agree on a plan to bring the payments under
the agreement up to date; and
(b) subject to
section 130(2), may not commence any legal proceedings to enforce the
agreement before –
(i) first providing
notice to the consumer , as contemplated in paragraph (a), or in
section 86(10), as the case may be; and
(ii) meeting any
further requirements set out in section 130."
[12] The giving of
notice in terms of Section 129(1)(a) has been held to be peremptory.
This is in keeping with the Act in order
to strike a balance between
the interest of the credit grantor and the credit receiver. The Act
requires that the notice in terms
of Section 129 be delivered to the
address nominated. It however does not require that the credit
grantor prove receipt of such
notice. See
ROSSOUW V FIRST RAND
BANK Ltd
,
2010 (6) SA 439
(SCA).
[13] The agreements
between the first respondent and the applicant amount to credit
agreements. In terms of section 129 the applicant
is obliged to “
draw
the default to the notice
” of the first respondent before
commencing with any legal proceedings to enforce the agreement.
[14] The first
respondent does not deny that it failed to pay the instalments as
stipulated in the agreements and it was therefore
in default. As
s
tated the first respondent dis
putes that the applicant
notified it of the default before proceeding with the various
actions.
[15] On an examination
of the summons in respect of case no. 2138/10 and case no.2139/10,
the address reflected thereupon is “
14 Krog Street, Kuruman,
Northern Cape”. However
on perusal of the section 129
notices sent to the first respondent, the address reflected is
“
Krogstreet 14, Kurunran, Pretoria, 8460
” and
“
Krog Str 14 Kuruman 8460
” respectively.
[16] In the
circumstances clearly the applicant had not brought the default to
the first respondents notice and as such had
failed to comply with
section 129. During the co
urse of the applicant argument before
this court it correctly conceded this point. The obvious r
esult
being that the actions instituted
agains
t the first respondent
a
re therefore premature.
[17] As regards the
suretyship agreement between the applicant and the second respondent,
clause 16.1 thereof states:
“
I/We
choose the address set out under my/our identity number/registration
number below to which documents in any legal proceedings
against
me/us, including notices of attachment of movable or immovable
property, may be served”
.
[18] The suretyship
agreements concluded between the second respondent and the applicant,
stipulated the address for the service
of all notices and legal
documents as “Krogstraat 14 Kuruman”.
[19] The applicant did
send a notification of demand to the second respondent, however this
was sent to “333 Grosvenor St,
Hatfield, Pretoria, 0002”.
This was not the chosen
domicillium o
f the second respondent
as reflected above.
[20] Thus the action
proceedings instituted by the applicant in case no. 2138/10 and
2139/10, are premature against the second respondent
as he did not
receive any notification of demand from the applicant at his chosen
domicillium
.
[21] In case no.
2141/10 and 2142/10 the actions against the first and second
respondent are also based on credit instalment agreements
and
suretyship agreements respectively.
[22] In these cases,
there were no section 129 notices sent to the first respondent
neither were there notifications of demand in
terms of clause 16 of
the suretyship agreement sent to the second respondent. Here too the
actions in these cases are also premature.
[23] Accordingly the
failure to notify the first respondent in terms of section 129 and
failure to give notice in terms of clause
16 of the suretyship
agreement has the result of the respondents defence succeeding.
[24] In the
circumstances I find that the applicant has failed to make out a case
in terms of Rule 32 in that the action proceeding
against the
respondents were premature from the outset and as a result the
respondent was
bona fide
in its defence in law.
In the result
summary judgment is refused in each of the following matters: CASE
NO. 2138/10; CASE NO. 2139/10; CASE NO. 2141/10;
AND CASE NO.
2142/10.
The defendants are
granted leave to defend.
Costs of the
summary judgment applications are left over for determination of the
trial court.
___________________________________
W HUGHES-MADONDO
ACTING JUDGE
Northern Cape High
Court, Kimberley
On
behalf of Applicant:
Adv. A.G. van Tonder
o.i.o Du
Toit Attorneys
On
behalf of Respondent:
Adv. S.L. Erasmus
o.i.o Van de
Wall & Partners