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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2011] ZAKZPHC 34
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Reid v Standard Bank of SA Ltd [2011] ZAKZPHC 34; AR 6/11 (12 August 2011)
In
the KwaZulu-Natal High Court, Pietermaritzburg
Republic
of South Africa
Case
No : AR 6/11
In
the matter between :
Edward
John Reid
…................................................................................
1
st
Appellant
Mandy
Lynne Reid
…..............................................................................
2
nd
Appellant
and
The
Standard Bank of SA Limited
….........................................................
Respondent
Judgment
Lopes J
[1] On the 25
th
November
2009 the learned judge in the court a quo granted summary judgment in
favour of the respondent against the first and second
appellants for
payment of the sum of R859 850,87, interest thereon and costs
together with a further order declaring the immovable
property owned
by the appellants to be executable.
[2] The action instituted by the
respondent against the appellants was based upon a loan secured by
three mortgage bonds. The respondent
alleged that the appellants had
defaulted on the repayments they were bound to make in terms of the
agreement.
[3] This appeal comes before us by way
of leave to appeal which was granted on the 23
rd
September
2010.
[4] The facts of the matter which can
be gleaned from the record may be summarised as follows :-
a loan agreement was concluded
between the respondent and the appellants during 2005; and
pursuant to that loan, continuing
covering mortgage bonds were registered over the appellants’
immovable property, the last
one on the 28
th
June 2007;
and
pursuant to the appellants having
failed to make payment of the relevant instalments, a notice in
terms of sections 129 and 130
of the National Credit Act, 2005 (“the
Act”) was sent to them by the respondent by registered post at
the end of
March 2009; and
thereafter a summons was issued on
the 15
th
May 2009 which was served on the appellants on
the 19
th
May 2009; and
presumably pursuant to the entry of
an appearance to defend, an application for summary judgment was
served on the appellants’
attorney on the 4
th
June
2009. Affidavits opposing summary judgment were delivered by both
appellants. They raised the defence that on the 2
nd
July
2009 and the 11
th
August 2009 respectively, a magistrate
in the Durban Magistrates’ Court made orders in terms of sub-s
86(7)(c) of the Act
in respect of their estates. Ex facie those
orders the appellants’ consumer debt obligations were
re-arranged in respect
of, inter alia, the debts owed to the
respondent;
on the 24
th
November 2009
the respondent’s attorney filed a further affidavit indicating
that, notwithstanding those Magistrates’
Court orders, the
appellants had not paid any amounts in respect thereof.
[5] On that basis the respondent
persisted in its application for summary judgment which was heard and
granted on the 25
th
November 2009.
[6] The first issue which falls to be
dealt with is the further affidavit deposed to by the respondent’s
attorney, at least
insofar as that affidavit may have had any effect
on the grant of summary judgment by the learned judge in the court a
quo.
[7] Admission of the affidavit is
clearly in contravention of the provisions of r 32(4) of the Uniform
Rules which provides that
no evidence may be adduced by a plaintiff
otherwise than by the initial affidavit supporting summary judgment.
The filing of the
affidavit on the 24
th
November 2009 was
an improper procedure and it should have been struck out by the
learned judge.
[8] Central to the learned judge’s
reasoning for granting summary judgment was the assumption that the
application for debt
review was out of time, because the respondent
had already taken the steps and the procedure contemplated in terms
of sections
129 and 130 of the Act, between the 1
st
April
and the 19
th
May 2009. She also regarded the order of the
Magistrates’ Court as being void on the basis that it was
contrary to sub-s
86(2) of the Act.
[9] I have the following difficulties
with the approach of the learned judge :-
(a) there is nothing in the papers
before us to indicate that the application by the appellants to the
debt counsellor was made
after the end of March 2009;
(b) in those circumstances there was
no basis for the finding of fact by the learned judge that the
respondent had already complied
with the provisions of sections 129
and 130 when the application for debt review was made;
(c) in any event, the provisions of
sub-s 86(2) do not necessarily render a decision by a magistrate
pursuant to a debt review application
void. It may well be that a
debt counsellor is precluded from bringing such an application after
the credit provider has taken
steps in terms of s 129, but there is
nothing in the Act to indicate that once having done so, it is
visited with a nullity. In
my view it was incumbent on the respondent
to have applied to set aside the Magistrates’ Court orders
rather than seeking
simply to ignore them. Once a court order is
granted, it is valid and enforceable until and unless set aside. As
pointed out by
counsel for the appellants, any assumption of
invalidity would possibly affect other parties to the order.
See
:
Jacobs v Baumann NO
2009 (5) SA 432
(SCA), para 20
Tödt v Ipser
1993 (3) SA
577
(A) at 589 C
Clipsal Australia (Pty) Ltd and
others v Gap Distributors Ltd and others
[2009] 3 All SA 491
(SCA), para 22.
[10] In any event, and for the reasons
set forth above, there was no evidence before the learned judge that
the applications for
debt review had been made after the issue by the
respondent of the s 129 and 130 notice.
[11] In the premises I make the
following order :-
the appeal succeeds;
the summary judgment granted on the
25
th
November 2009 is set aside and replaced with the
following :-
‘
The usual
order is granted refusing summary judgment.’
the respondent is directed to pay the
costs of the appeal;
the matter is to be set down for
hearing on the expedited roll in accordance with practice directive
21.
Jappie J : I agree.
Ndlovu J : I agree.
Date of hearing : 8
th
August 2011
Date of judgment : 12
th
August 2011
Counsel for the Appellant :K J Kemp SC
(instructed by Booysen & Co Inc)
Counsel for the Respondent : B S M
Bedderson (instructed by Goodrickes)