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[2011] ZAKZDHC 35
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Posthumous v First National Bank Ltd and Others (7773/2011) [2011] ZAKZDHC 35 (29 July 2011)
15
REPUBLIC OF SOUTH AFRICA
THE KWAZULU-NATAL HIGH COURT, DURBAN
JUDGEMENT
REPORTABLE
Case
no: 7773/2011
In the matter
between:
P.L. POSTHUMUS
…...................................................................................................
Applicant
and
FIRST NATIONAL BNK
LTD
…...................................................................
First
Respondent
THE SHERIFF OF THE
HIGH COURT,
PORT SHEPSTONE
…................................................................................
Second
Respondent
THE REGISTRAR OF
DEEDS
PIETERMARITZBURG
…...........................................................................
Third
Respondent
Neutral citation:
P.L. Posthumous v First National Bank Ltd (7773/2011) [2011] ZAKZD
(July 2011)
Coram
: MADONDO J
Heard
: 15 M arch 2011
Delivered: 29 July 2001
Summary
:
Application for debt review proceedings ─is made in the court
having jurisdiction over the person of the consumer. Termination
of
the debt review process while the debt review proceedings are pending
before court─ it is competent to do so depending
on the
circumstances of each particular case. In affording protection under
National Credit Act 34 of 2005
─ a balance between the
interests and the rights of the consumers and of the credit providers
must be achieved.
Rescission
of judgment ─judgment was erroneously granted if there was an
irregularity in that the court was not legally competent
for the
court to have granted it. Rescission application is brought under
Rule 42(1)(a).Default
judgment occurs where the defendant has failed
to enter an appearance to defend and the rescission application is
brought under
Rule 31(2)
(b) or common law. Requirements for
rescission ─ are not in willful default and bonafide defence to
the plaintiff’s
claim. Consumer’s over-indebtedness is
not a defence on merits. Joinder of parties ─a person to be
joined in the matter
must have a direct and substantial interest
which will be prejudicially affected by the granting of the judgment.
________________________________________________________________________
ORDER
________________________________________________________________________
Application is
dismissed with costs.
________________________________________________________________________
JUDGEMENT
________________________________________________________________________
MADONOD J
[1] In this application the applicant seeks an order:
(a) rescinding the default judgment granted on 11August 2010 in
favour of the first respondent against her; and
(b) restraining the second and third respondents from registering the
property known as Erf 712 Umtentweni (Extension 8) KwaZulu
Natal, in
the name of the purchaser of the aforesaid premises on execution
pending the finalization of the relief sought in paragraph
(a) above.
Parties
[2] The applicant is Petro Louise Posthumus, an adult female of 18
Mgazi Avenue, Umtentweni, KwaZulu-Natal Province.
[3] The first respondent is First National Bank – a division of
FirstRand Bank Ltd, a bank duly registered and incorporated
in terms
of the banking laws of the Republic of South Africa and registered as
a credit provider as defined in section 40 of the
National Credit Act
34 of 2005 (the Act), having its principal place of business situated
at 5
th
Floor, FNB Tower, 27 Diagonal Street, Johannesburg.
[4] The second respondent is the Sheriff of the High Court: Port
Shepstone situated at 17a Mgazi Avenue, Umtentweni, KwaZulu-Natal
Province.
[5] The third respondent is the Registrar of Deeds: Pietermaritzburg
in his representative capacity. No specific relief is sought
against
the second and third respondents save giving effect to the order
sought in terms of the Notice of Motion.
Factual background
[6] The application arises from the home loan credit agreement
entered into between the applicant and the first respondent during
2005 and in terms of which the first respondent loaned and advanced
the amounts of R495 000 and R350 000 to the applicant. The
aforesaid
amounts were secured by Mortgage Bond B9459/05 and Mortgage Bond
B33106/05 respectively.
[7] The applicant, as security for her obligations under the bonds,
bound the property described as:
Erf 712 Umtentweni (EXTENSION 8) Registration Division ET, Province
of KwaZulu-Natal, in extent of 2498 (two thousand four hundred
and
ninety eight) square metres, held under Deed of Transfer No.
T26503/2004.
[8] The applicant was in terms of the agreement to pay certain
monthly instalments in reduction of the total amount owing under
the
bonds on or by the due date each month, provided therein.
[9] It was also an essential term of the agreement that should the
applicant breach the agreement by failing to pay the instalment
by
the due date, the full balance owing including interest would become
due owing and payable and that in such event the first
respondent
would be entitled, at its option, to institute proceedings for the
recovery thereof and for an order declaring the mortgaged
property
executable. A certificate signed by any manager of the first
respondent as to any amount owing in terms of agreement,
would
constitute
prima facie
proof of such indebtedness.
[10] The applicant breached the terms of the agreement by failing to
pay one month instalment and in consequence thereof an amount
of R945
734-70, being the total balance owing, together with interest
calculated at the rate of 8.5% per annum, became due owing
and
payable by the applicant under the bonds.
[11] On 4 March 2009 the applicant lodged an application with the
registered debt counsellor, Linda Yvonne du Plooy, for a debt
review
in terms of section 86(1) of the Act. On 13 March 2009 du Plooy
advised the first respondent that the applicant’s
application
for a debt review was successful.
[12] In a letter dated 16 July 2009, du Ploy requested the
applicant’s attorneys, CB Michael Attorneys, to set down the
application for review in the Pretoria Magistrate’s Court. On 4
August 2009 the applicant personally applied in Pretoria Magistrate’s
Court to have her debt obligations restructured and the matter was
set down for hearing on 16 September 2009. However, the debt
review
application was later removed from the court’s roll.
[13] On 20 April 2010 the first respondent directed a Notice of
Termination of the debt review process in terms of section 86(10)
of
the Act to the applicant, the debt counsellor and to the national
credit regulator.
[14] On 7 July 2010 the first respondent issued summons and it was
served on the applicant on 15 July 2010 at her chosen domicilium
address, 4 Pope Street, Umtentweni. In the said summons the first
respondent claimed the payment of R945 734-70 together with interest
thereon at the rate of 8.5% per annum, compounded monthly from the 15
of June 2010 to date of payment, and costs. Also, the first
respondent sought an order declaring executable mortgaged property.
[15] The applicant did not enter an appearance to defend and as a
result the first respondent applied for and was granted default
judgment against the applicant on 11 August 2010.
[16] On 22 October 2010 the applicant was advised of the impending
sale of the property by the registered post with no response.
The
property was sold in execution on 22 November 2010. Subsequent
thereto, the applicant entered an appearance to defend on 26
November
2010.
[17] On 29 November 2010 the first respondent lodged an application
for summary judgment. The applicant did not oppose the application
by
delivering an opposing affidavit, and it was granted on 22 December
2010. However, it is common cause between the parties that
such
judgment was in the circumstances of this case superfluous, and
therefore a nullity.
[18] Though the applicant alleges that she became aware of the
default judgment on 23 November 2010, she only lodged an application
for recession on 18 January 2010.
[19] The applicant alleges that she received an instruction to
reinstate section 86(1) application and as a result the application
was reinstated and set down for hearing on 24 August 2011 at Pretoria
Magistrate’s Court.
[20] The applicant’s contention is that she referred the debt
review application to the Pretoria Magistrate’s Court
for
hearing in terms of section 87 of the Act and that it is, therefore,
not competent for the first respondent to terminate the
debt review
whilst the application is still pending before the Magistrate’s
Court.
Issues
[21] The issues raised by the facts in this matter, are whether:
(a) the debt review application is properly before Pretoria
Magistrate’s Court;
(b) whether it was competent for the first respondent to terminate
the debt review proceedings in terms of section 86(10) whilst
the
matter was still pending before the Magistrate’s Court; and
(c) Whether the applicant has satisfied the requirements for the
rescission of judgment.
Debt
review application
[22]
In March 2009 the applicant acting in terms of section 86(1) of the
Act applied to the debt counsellor to have her declared
over-indebted. It is common cause that at the time the first
respondent had not under the credit agreement taken steps, as
contemplated
in section 129 to enforce the agreement (see s86(2)).
The first respondent only complied with the requirement of section
129(1)
of the Act on 16 June 2010. On receipt of the application the
debt counsellor notified the consumer, the first respondent and the
credit regulator thereof.
[23]
Section 86(6) sets out the procedure the debt counsellor must follow
on acceptance of the application as follows:
“
(6)
A debt counsellor who has accepted an application in terms of this
section must determine, in the prescribed manner and within
the
prescribed time-
Whether
the consumer appears to be over-indebted; and
If
the consumer seeks a declaration of reckless credit, whether any of
the consumer’s credit agreements appear to be reckless.”
There is nothing to show in the present case that a determination
that the applicant was or is over-indebted or a declaration of
reckless credit has ever been made.
[24] After an assessment in terms of section 86(6), the debt
counsellor must come to particular conclusion, based on the
assessment
made. In this regard section 86(7) provides:
‘
(7) If, as a result of an assessment
conducted in subsection (6), a debt counsellor reasonably concludes
that-
the
consumer is not over-indebted, the debt counsellor must reject the
application, even if the debt counsellor has concluded
that a
particular credit agreement was reckless at the time it was entered
into;
the
consumer is not over-indebted, but is nevertheless experiencing, or
likely to experience, difficulty satisfying all the consumers
obligations under the credit agreement may recommend that the
consumer and the respective credit providers voluntarily consider
and agree on a plan of debt re-arrangement; or
the
consumer is over-indebted, the debt counsellor may issue a proposal
recommending that the Magistrate’s Court either
or both of the
following orders-
that
one or of the consumer’s credit agreements be declared to be
reckless credit, if the debt counsellor has concluded
that those
agreements appear to be reckless; and
that
one or more of the consumer’s obligations be re-arranged by-
(aa)
extending the period of agreement and reducing the amount of each
payment due accordingly;
(bb)
postponing during a specified period the duties on which payments are
due under the agreement ;
(cc)
extending the period of the agreement and postponing during a
specified period the dates on which payments are due under the
agreement; or
(dd)
recalculating the consumer’s obligations because of
contraventions of Part A or B of chapter 5, or Part A of chapter
6.’
[25] It does not appear from the papers in the present matter that
the debt counsellor has ever made any conclusion as to whether
or not
the applicant is over-indebted or that she is not over-indebted but
she is experiencing or likely to experience difficulty
in satisfying
her obligation under the credit agreement. Nor is it stated whether
or not any proposals have ever been made to the
Magistrate’s
Court that her credit agreement must be declared reckless credit or
that her obligation should be re-arranged
in any manor set out in
subsection 7(ii)(aa);(bb);(cc) and (dd).
[26] Save stating that the proposals were submitted on 29 May 2009,
there is nothing to show what proposals were those. Also, it
does not
appear from the papers whether or not any proposal was ever made to
the applicant and the first respondent with regard
to this matter. No
allegation has ever been made that the matter was referred to the
magistrate’s court since the parties
did not accept the
proposal. It is not apparent from the papers on what basis the matter
was referred to the magistrate’s
court.
[27] With regard the applicant’s claims to have referred the
matter under section 86(9) of the Act. In terms of this subsection
the consumer may only directly apply to the magistrate’s court
if the debt counsellor has rejected the application as contemplated
in subsection (7) (a), for an order contemplated in subsection
(7)(c).
[28] The application was initially set down for hearing at Pretoria
Magistrate’s Court on 16 September 2009. However, it
does not
appear from the Notice of Set Down, Annexure ‘F’, as to
who had set it down save to state that the founding
affidavit of
Petro Louise Posthumous and the supporting affidavit of Linda Yvonne
du Plooy were attached thereto and that there
would be used in
support of the application.
[29] According to the applicant the matter was later removed from the
roll on the ground that the debt counsellor, du Plooy, sold
his book
to a new debt counsellor. However, the matter was thereafter set down
for hearing on 24 August 2011. In the Notice of
Set Down, Annexure
“G”, the name of the applicant’s attorneys, CB
Michael Attorneys, appear at the bottom but
the Notice is unsigned.
No explanation has been given as to why the re-instatement of the
application on the roll had to be done
by the applicant’s
attorneys not by the debt counsellor. I do not think that any
responsible officer of the court would take
an unsigned Notice of Set
Down seriously and set the matter down for hearing. It has not been
proved that the application has satisfied
all the requirements set
out in section 86(6), (7), (8) and (9) of the Act. In the premises,
the papers do not show that the application
was on 16 September 2009
and is presently properly before the Pretoria Magistrate’s
Court. Nor has it been alleged that after
the application had been
removed from the roll, the magistrate’s court ordered that the
debt review should be resumed (s
86(11)). The matter ought to have
been referred to the magistrate’s court by the debt counsellor.
[30] The application must be referred to the magistrate’s court
having jurisdiction in respect of the person of the consumer.
See
National Credit Regulator v Nedbank Ltd 2009(6) SA 295 (GNP) at
314.
In
casu
, no jurisdictional connection between the
application and Pretoria Magistrate’s Court has been
established. Nor does the
applicant reside or carry on business
within the jurisdiction of the Court in question. The applicant has
therefore failed to prove
that the Pretoria Magistrate’s Court,
before which the application is allegedly pending, has jurisdiction
to entertain the
application. Nor is it known, as stated above, who
referred it to the magistrate’s court and the circumstances
under which
such referral was made. Nor is it stated that the debtor
counsellor who allegedly replaced du Plooy re-set the matter down for
hearing and the basis for so doing.
(b)
Termination of the debt review proceedings in terms of section
86(10)
[31] On notice to the applicant the first respondent, the debtor
counsellor and the National Credit Regulator terminated the debt
review on 20 April 2010 in accordance with the provisions of section
86(10) of the Act, which provides:
‘
(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 agreement may give notice to
terminate the review in the prescribed manner to –
consumer;
the
debt counsellor; and
the
National Credit Regulator, at any time at least 60 business days
after the date on which the consumer applied for the debt
review.’
[32] The applicant’s contention is that it was not competent
for the first respondent to terminate the debt review process
whilst
the application was still pending before the Pretoria Magistrate’s
Court. In
Standard Bank of South Africa Ltd v Kruger; Standard
Bank of South Africa Ltd v Pretorius
2010 (4) SA 635(GSJ)
,
Kathree
– Setilone AJ
at p642
said:
‘
Accordingly, I am of the view that, once
the debt process has been initiated, which thereafter, results in the
referral of the debt
review to the magistrate’s court, the
credit provider is not entitled to institute court proceedings to
enforce its claim
until the magistrate’s court has made a
determination in terms of s87 of the Act’.
[33] The learned Acting Judge went on to hold that ‘any
contrary interpretation would render the entire debt review process
ineffectual since the credit provider will simply wait for 60 working
days, well knowing that no magistrates’ court will
be able to
adjudicate the debt review in terms of s87 of the Act to finality
within 60 business days from referral to it. In her
view, ‘such
an interpretation would circumvent the protection afforded by the
Act, and would be in conflict with the intention
of the legislature.’
[34] The purpose of the Act is to promote and advance the social and
economic welfare of South Africans, promote a fair, transparent,
competitive, sustainable, responsible, efficient, effective and
accessible credit market and industry and to protect consumers
by
promoting the development of a credit market that is accessible to
all South Africans. Also, to provide consumers with protection
from
deception and from unfair or fraudulent conducts by credit providers
and credit bureaux. The main intention of the legislature
in this
regard is to address and prevent over- indebtedness of consumers by
providing mechanisms for resolving over-indebtedness
based on the
principle of satisfaction by the consumer of all responsible
financial obligations.
See section 3(a)(e)(iii) and (8) of the
Act.
[35] In
Wesbank, division of First Rand Bank Ltd v Papier
(14256/10) [2011] ZAWCHC2,
it was held:
‘…
on a proper interpretation of
subsection 86(10), the consumer is protected against enforcement
proceedings by the credit provider,
not only once a re-arrangement
order has been made by a magistrate in terms of s87, but also while
proceedings for such an order
are pending. The corollary in that
delivery of a notice of termination by a credit provider in term of s
86(10) is not competent
once any of the steps referred to in ss86 (7)
(cc), 86(8) or 86(9) have been taken. Obviously this impediment will
cease to exist,
once a magistrate’s court has dismissed the
application for re-arrangement or the application has been withdrawn
or abandoned’.
In this case the action was stayed in order to allow the debt review
process to take its course in the magistrate’s court.
[36] It is apparent in the aforesaid decided cases that the court
placed much emphasis on the protection and promotion of the
consumers’ rights to the neglect of the rights and interests of
the credit providers. While protecting the interests and the
rights
of the consumers the court should always be mindful of the fact that
it is also the purpose of the Act to ‘promote
equity in the
credit market by balancing the respective rights and responsibilities
of credit providers and consumers’, as
well as the provision of
‘a consistent and harmonised system of debt restructuring,
enforcement and judgment which places
priority on the eventual
satisfaction of all responsible consumer obligations under the credit
agreements’.
See section 3(d) and (i) of the Act
.
[37] In
Collet v First Rand Bank (766/2010)[2011] ZASCA 78 (27 May
2011
), regard being had to the purpose of the debt review, not to
relieve the consumer of his obligations but to achieve either a
voluntary
debt re-arrangement or a debt re-arrangement by the
magistrate’s court, it was held that the Act does not only
serve the
interests of consumers and that its construction therefore
calls for a careful balancing of all relevant interests. In this case
the court drew a distinction in the application of the provisions of
section 86(10) between the consumer who is in default of his
or her
obligations and the consumer who is not in default when the matter is
referred for debt review. The court held that where
the consumer is
not in default of any obligations, the credit provider is unable to
terminate the process because section 86(10)
gives the right to
terminate the debt review only where the consumer is in default. In
such a case the court held that the credit
provider must await the
hearing in terms of section 87. Nor can the credit provider proceed
to enforce the credit agreement because
the consumer is not in
default, where the consumer is in default the credit provider is
entitled to enforce that credit agreement.
The court held that a
sounder approach is to recognise the express words of section 86(10)
which gives the credit provider a right
to terminate the debt review
in respect of the particular credit transaction under which the
consumer is in default, and only when
he is in default, at least 60
business days after the application for debt review was made. The
credit provider must also have
complied with the requirements of
section 129 and 130 of the Act.
[38] In the aforesaid case, the proposal by the debt counsellor in
respect of the mortgage bond envisaged a debt re-restructuring
in
terms of which the monthly instalments payable on the mortgage be
reduced from R6644-93 to R3500-00 but payable over the same
period of
time, that was 240 months this would deprive the respondent of nearly
one half of what it was entitled to under the credit
agreement. The
court then held that in the circumstances the termination of the debt
review by the respondent was understandable.
[39] It is common cause, in
casu
that when the applicant
applied to the debt counsellor to be placed under debt review
process, she was already in default of her
financial obligations
under the credit agreement. Nor was the credit provider requested to
participate in good faith in the review
or in any negotiations
designed to result in responsible debt re-arrangement in terms of
section 86(5)(b) of the Act. At the time
the first respondent
terminated the debt review the applicant had been in default of her
financial obligations for thirteen (13)
months. During this period
the applicant did not make any attempt to pay any amount in reduction
of the amount owed notwithstanding
the fact that she was by then
receiving rental in respect of the property in question. This evinces
an intention on the part of
the applicant not to meet her financial
obligations under the credit agreement but to benefit illegitimately
out of leasing the
property in question. Such conduct by the
applicant is in conflict with the provisions of section 3(i) which
places priority on
the eventual satisfaction of all responsible
consumer obligations under the credit agreement.
[40] It is common cause that the matter was removed from the roll on
16 September 2009. Therefore, it follows that when the first
respondent terminated the debt review in April 2010 there was no
application pending before the magistrate’s court. Nor does
it
appear from the papers as to when the matter was re-instated and set
down for hearing on 24 August 2010, and who set it down.
Annexure “G”
purported to be a Notice of Set Down is unsigned. Nor is there
anything to show that the debt counsellor,
who allegedly took over
after du Plooy had ceased to handle the application, reinstated the
application on the court’s roll.
No proof has ever been
tendered to show that the application was initially referred to the
magistrate’s court in accordance
with the provisions of section
86 of the Act.
[41] Though it appears from annexure “A” that du Plooy in
a letter dated 16 July 2009 requested the applicant’s
attorneys
to bring a debt review application to a proper court. A procedure is
not sanctioned by the provisions of the Act. The
debt review
application must be brought to the magistrate’s court by the
debt counsellor. It is also alleged in the document
that proposals
were submitted on 26 May 2009 but there is nothing to explain what
those proposals were or whether they were at
any stage directed to
the first respondent. It cannot, therefore, be said that the first
respondent failed or refused to negotiate
in good faith with the
applicant. In any event at the time the applicant was in default of
her obligations for more than sixty
(60) days, in effect for thirteen
(13) months’, and this justified termination of the debt
review. In the circumstances of
this case, I am satisfied that the
termination of the debt review was justified and reasonably
necessary.
[42] In fact, such termination was a formality since there were no
longer any debt review proceedings pending before the magistrate’s
court. The application had been removed from the roll six (6) months
prior to the formal termination of the debt review process.
No
evidence has ever been tendered to prove that at the time the debt
review was terminated there were, in fact, debt review proceedings
pending before the magistrate’s court. Nor does it appear from
the papers that at the time the proceedings were reinstated,
such
reinstatement was properly done in accordance with the provisions of
the Act.
(c)
Rescission Application
[43] The applicant has in terms of Rule 42(1)(a) lodged an
application for the recession of the Default Judgment granted on 11
August 2010 in favour of the first respondent against her on the
ground that the judgment was erroneously sought and erroneously
granted. However, it is common cause that the property which is the
subject of the judgment was sold to a third party at the sale
in
execution. It therefore follows that the third party has a legal
interest in the subject – matter of the application which
could
be prejudicially affected by the granting of the order sought. The
third party has not been joined in this matter and this
application
may fail on the ground of non joinder alone. See
United Watch &
Diamond Co. (Pty) Ltd v Disa Hotels Ltd
1972 (4) SA 409(C)
at 415H.
Parkview Properties (Pty) Ltd v Haven Holdings (Pty) Ltd
1981 (2) SA
52(T)
; Standard General Insurance Co Ltd v Gutman NO 1981(2) SA 426
(C) at436B.
[44] However, in order to bring this matter to finality on merits, I
propose to deal with the rest of the questions raised by the
facts of
the matter. The judgment is erroneously granted if there was an
irregularity in the proceedings or if it was not legally
competent
for the court to have it granted. See
De Wet v Western Bank
1979(2) SA 1031 (A) at 1038D; Tshabalala v Peer 1979(4) SA 27(T) at
30 H-31A; Athmaram v Singh 1989(3) SA
953(D) at 956D and 956 I.
In
casu, it has not been contended that it was legally incompetent for
the court to have granted such judgment and that it is for
this
reason the judgement is said to have been erroneously sought and
granted.
[45] In casu, such a situation did not arise. The default judgment
was obtained against the applicant on 11 August 2010 on the
ground
that she had failed to enter an appearance to defend within the
prescribed period, after summons had been duly served on
the
applicant at her domicilium address, 4 Pope Street, Umtentweni, on 15
July 2010.
[46] In my view, the applicant should have brought the application
for rescission in terms of Rule 31(2)(b) on the ground that
the
judgment was granted in her absence, if she was not in wilful default
and having
bona fide
defence to the first respondent’s
claim. However, the applicant was entitled to lodge the application
for rescission within
twenty (20) days after she had knowledge of
such judgment. The applicant became aware of the sale of the property
on 23 November
2010 and she only filed an application for recession
on 18 January 2011. Nor has she lodged an application for
condonation. Her
application may also fail on this ground.
[47] The applicant claims that at the time the summons was served,
she was not resident in the property which has been declared
executable. According to the applicant at the time the property was
rented by tenants who according to her failed to notify her
of the
summons served. Once again the letter by the first respondent
notifying her of the impending sale of the property dated
22 October
2010 was served at the same address. The applicant also claims not to
have received it. Surprisingly, the letter addressed
to the applicant
at the same address by the second respondent dated 23 November 2010,
in which the second respondent was notifying
the applicant that the
property had been sold in execution on 22 November 2010, she received
it. This, in my view, could not have
been a sheer coincidence. The
applicant had obviously received the prior documents and she ignored
them. The latter was different
from the first ones in that it
informed her that the property was then sold and it was for that
reason she stood up in order to
save the property which was valuable
to her. I am therefore not satisfied that she was not in wilful
default.
[48] The second requirement the applicant must satisfy in order to
succeed on her application for recession is that she has a
bona
fide
defence to the first respondent’s claim. In her papers
she does not show any defence on merits to the first respondent’s
claim. She only relies on the ground that it was not competent for
the first respondent to terminate the debt review whilst they
were
proceedings, in this regard, pending before court. In Collet case,
supra,
it was stated that over-indebtedness is not a defence
on merits. The proof that the first respondent’s failure to
participate
in or its bad faith during the debt review negotiations
might have weighted in her favour. In the present case it has never
been
alleged that the applicant and the first respondent has ever
been requested to facilitate the evaluation of the applicant’s
state of indebtedness and the prospects for responsible debt
re-arrangement and that the first respondent failed to participate
in
good faith in the debt review.
[49] On the contrary, it was the applicant’s conduct which led
to the termination of the review process. No blame can legitimately
be attributable to the first respondent’s conduct. It is common
cause that the applicant has been in default with her repayments
under credit agreement for a period of more than two years. Nor has
she made any attempt to pay any amount in reduction of the
capital
amount owing under credit agreement. The applicant has leased the
property to certain persons in return for rental. All
this period she
has been benefitting out of the property to the detriment of the
first respondent.
[50] It is evident from the above that the applicant does not need
the property in question as a primary residence but for the
purposes
of generating income to the detriment of the first respondent. In
consequence thereof, I come to the conclusion that the
present case
cries loudly for the balancing of the right and interest of the
consumer with the right and interest of the credit
provider. By her
conduct the applicant has sufficiently demonstrated that she does not
intend to eventually meet her financial
obligations under the credit
agreement.
[51] In the premises, I do not find any merit in the application for
rescission and an order restraining the second and third respondents
from registering the property in question in the name of the person
who purchased it at the sale in execution on 22 November 2010.
[52] In the result, the application is dismissed with costs.
APPEARANCES
APPLICANT : Adv Collingwood
Instructed by : C/O Dickinson & Theunissen Inc.
Ref : (Mr Smith/mg/MAT8464)
FIRST RESPONDENT : Adv Konigkramer
Instructed by : Strauss Daily Inc.
Ref : (V Naidu/RL/FIR93/0244)