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[2009] ZAGPPHC 197
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Changing Tides 17 (Pty) Ltd NO v Adendorff and Another (7133/2009) [2009] ZAGPPHC 197 (3 June 2009)
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
GAUTENG HIGH COURT, PRETORIA)
Case No: 7133/2009
DATE: 03/06/2009
In
the matter between:
CHANGING
TIDES 17 (PROPIETARY) LIMITED N.O.
…........................
APPLICANT
And
JOHN
ADENDORFF
....................................................................................
1st
RESPONDENT
(I.D.:
….)
WILHELMINA
ELIZABETH ADENDORFF
…............................................
2nd
RESPONDENT
(Identity
Number: ….)
(Married
to each other in community of property)
JUDGMENT
MAVUNDLA,
J.:
[1]
This is an opposed application for summary judgment against the
defendants, jointly and severally, the one paying the other
to be
absolved, for (a) payment in the amount of R416 211. 26 together with
monthly capitalized interest on the aforesaid amount
calculated at
the rate of 14.10% per annum from the 1st January 2009 to date of
payment; an order declaring executable certain
sectional title
immovable property registered in the names of both the defendants, as
well as cost between attorney and client.
For purposes of
convenience, I shall refer to the applicant as the plaintiff and the
respondents as the defendants, respectively,
[2]
The plaintiff's claim arises from a written credit agreement between
the parties, namely a bond payment in respect of which
an amount of
R41S 211 26 is alleged to be outstanding .
[3]
In paragraph 26 of its particulars of claim the plaintiff alleges
that:
''26.1.
In terms of the provisions of the National Credit Act No. 34 of 2005
(The NCA"):
26.1.1
Defendant(s) applied for debt review.:
26.2.
A period of more than 60 (SIXTY) business days lapsed since the
defendant(s) applied for debt review and is/are in default:
26.3.
Therefore the plaintiff gave notice in terms of Section 86(10) of the
NCA and terminated the debt review process, a copy attached
marked
Annexure “L
1
".
26.4.
A period of at least ten business days have lapsed since the Trust
delivered the notice in terms of Section 86(10) of the
NCA to the
Defendant(s) and the Defendant(s) have not responded to the
aforesaid:
26.5.
The Defendant(s)are and has been in default of their obligations
under the loan for a period of at least 20 (TWENTY) business
days;
26.6.
There is no matter arising under the loan, as contemplated in Section
130(3)(b) of NCA, pending before the National Consumer
Tribunal
established in terms of Section 26 of the NCA that could result in an
order affecting the issue to be determined by"
this Court.
26.7.
None of the circumstances contemplated in Section 130 (3) (c) of the
NCA exist in respect of the loan."
[4]
In opposing the summary judgment application the defendants deny that
they do not have a bona fide defence and that they entered
the
appearance to defend sofely for purposes of delay. They have raised
points in limine in their defence. The first point in limine
is that
the applicant has in the summons not prayed for canceflation of the
agreement. They further contend that although a credit
provider, in
the event of alleged breach of the agreement by a consumer, is
entitled to approach a court for enforcement of its
remedies by means
of cancellation and repossession and enforcement of the outstanding
balance under credit agreement, in the absence
of a prayer for
cancellation of the agreement the other prayers cannot be granted.
[5]
Secondly they contend that they have applied for debt review to the
debt counsellor in terms of section 86 of the National Agreement
Credit Act 34 of 2005 on the 18 June 2008, and that the applicant was
notified in terms of section 86(4) (b) (i) (ii) of the aforesaid
Act
34 of 2005. They further aver that on 18 June 2008
2
they requested the applicant to provide the credit agreements and
statements in respect of themselves. On 15 October 2008 they
notified
the plaintiff that their application for debt review was successful
3
.
On the same date the respondents sent to the applicant the debt
restructuring proposal
4
.
[6]
The respondents commenced to effect payment to, inter alia, the
applicant in accordance with the debt restructuring
5
.
The respondents further aver that on 01/ 03/ 2009 the clerk of the
civil court in Pretoria issued their application with number
27444/09. The application was launched in terms of section 86 and 87
of the Credit
National Credit Act for
the rearrangement order
6
.
They further say that the application has been served upon ail their
creditors, including the applicant, and that it would be
heard on 10
June 2009.
[7]
It is submitted on behalf of the defendants that, before the
applicant is entitled to issue summons against them, it must first
comply with section 129 and 130 of the National Credit Agreement Act
No 34 of 2005. It is further averred that the applicant has
not
attached any proof that it has complied with the aforesaid sections,
nor attached any proof that the respondent has not effected
any
payment in accordance with the restructured debt payment.
[8]
It is further contended by the defendants that the applicant has
deprived them of their rights flowing from section 129 which
they are
entitled to rely on. Section 129, inter alia, bars the applicant
from, commencing with legal proceedings until it has
satisfied the
court that it has complied with the procedural requirements of the
Act; vide 120(1)(b).
[9]
In order to successfully resist summary judgment, the defendants must
show that they have a bona fide defence disclose fully
the facts upon
which they rely for their defence; Maharaj v Barclays National Bank
Ltd
7
.
In Arend and Another v Astra Furnishers (Ptv) Ltd
1974 (1) SA 298
(CPD) at 303H Corbett J, as he then was, said:
"In
the first place, it is clear that all that a defendant need do in
order to defeat a claim for summary judgment is to satisfy
the court
that he has a bona fide defence to the action. Me would normally do
so by deposing to the facts which, if true, would
establish such a
defence. At this stage he is not required to persuade the Court of
the correctness of the defence of probability
in his favour. The
Court, in turn, does not endeavour to weigh or decide disputed
factual issues; it merely considers whether the
facts alleged by the
defendant constitute a good defence in law and whether that defence
appears to tie bona fide. In order to
do so the Court must be
apprised of the facts upon which defendant relies with such
completeness as to be able to hold that if
these statements of fact
are found at trial lo be correct, judgment should be for defendant;
ant that the defence appears to be
bona fide one.., “
...an
important factor to be taken into account by the Court in determining
how to exercise its discretion is the extraordinary
and very
stringent remedy; it permits a final judgment to be given against a
defendant without a trial. It is designed lo prevent
a plaintiff
having lo suffer the delay and additional expenses of the trial
procedure where thee defendant’s case is a bogus
one or is bad
in law and is raised merely for purposes of delay, hut in achieving
this it makes drastic inroads upon normal right
of the defendant to
present his case Lo the Court." At page 305C-1-' Corbett J
proceeds, with approval, with the following
citation:
'In
Wise & Co. (Africa) Ltd v Gin,
1946 C.P.D. 524
, Fagan, J., after
referring to Maisel's case, supra, and Roscoe 's case, supra, stated
(at p. 526) that in those decisions the
principle was accepted-
"That
the Courtan only grant summary judgment if on the papers before it,
it has no reasonable doubt I h;n the plainstiff's
entitled lo
judgment and fee is able to say I hat the defendant has not got a
defence which may possibly succeed, even though the
Court may not
think he is likely to succeed”.
(See
also Lombard v Van Dvr Wexthuizen. 1953 (4) SA (C) at p. 89;
Fischercigeseli.schafi F. Basse & Co Kommanditgeselkchaft
v
African Frozen Products (Fty) Ltd.,
1967 (4) SA 105
(C) at p. 1 1).
In Mowschenson v Mercantile Acceptance Corporation,
1959 (3) S.A. 362
(W), Marais, J., stated, with reference to the Transvaal Rule of
Court 42 bis (at p. 366)―
‘
'The
proper approach appears to me to tic the one which keeps the
important fact in view that the remedy for summary judgment is
an
extraordinary remedy, and a very stringent one. in tbal il permits
judgment to be given without trial. It closes the doors of
the Court
lo the defendant. (See the case of Symon & Co., supra). That tan
only be done if there is no doubt bu| that the plaintiff
has an
unanswerable ease. If it is reasonably possible that the plaintiffs
application is defective or that the defendant has a
good defiance.
The issue must, in my view, be decided in favour of the defendants"
[10]
The respondents have attached proof of the fact that on 01st t 03/
2009 the clerk of the civil court in Pretoria issued their
application with number 27444/09 The application was launched in
terms of section 86 and 87 of the Credit
National Credit Act for
the
rearrangement order
8
.
That application is scheduled for hearing on 10 June 2009.
[11]
Although the aforementioned application is at the magistrate court
and was issued on 01st / 03/ 2009, the summons in casu were
issued on
11 February 2009. The spirit and purpose of the NCA is inter alia, to
provide for debt re-organisation in case of over
indebtedness,
9
to promote equity in the credit market and protect the consumers and
to balance the rights of the consumers and credit provider
10
.
[12]
In my view, the ethos envisaged by the NCA, flowing from the preamble
and
section 3
, taken together with the provisions of
section 130(3)
and (4) of NCA and the draconian effect of summary judgment
proceedings, make it an imperative that the courts, in deciding the
exercise of their discretion, must have regard to these ethos and be
slow to shut the door in the face of a litigant.
[13]
Section 130
provides inter alia:
(1)
...
(2)
.....
(3)
Despite any provision of law or contract to the contrary, in any
proceedings commenced in a court and in respect of credit agreement
to which this Act applies, the court may determine the matter only if
the court is satisfied that―
(a)
in the case of proceedings to which section 127, 129 or 131 apply,
the procedures required by those sections have been complied
with;
(b)
there is no matter arising under that credit agreement, pending
before Tribunal, that could result in an order affecting the
issues
to be determined by the court; and
(c)
that the credit provider has not approached the court―
(i)
during the time that the matter was before the counsellor,
alternative dispute resolution agent, consumer court or the ombud
with jurisdiction; or
(ii)
despite the consumer having―
(aa)
(bb)
agreed to a proposal made in terms of section 129(1)(a) and acted in
good faith in fulfilment of that agreement;
(cc)
complied with an agreed plan as contemplated in section 129 (1) (a);
or
(dd)
brought the payments under credit agreement up to date, as
contemplated in section 129(1) (a).
(4)
In any proceedings contemplated in this section, if the court
determines that―
(a)
....
(b)
the credit provider has not complied with the relevant provisions of
this Act, as contemplated in subsection (3) (a), or has
approached
the court in circumstances contemplated in subsection (3) (c) the
court must―
(i)
adjourn the matter before it; and
(ii)
make an appropriate order setting out the steps the credit provider
must complete before the matter may be resumed;
(c)
the credit agreement is subject to a pending debt review in terms of
Part D of Chapter 4. the court
(i)
adjourn the matter, pending a finat determination of the debt review
proceedings;
(ii)
order the debt counsellor to report directly to the court, and
thereafter make an order contemplated in section 85 (b);
(iii)
if the credit agreement is the only credit agreement to which the
consumer is a party, order the debt counsellor to discontinue
the
debt review proceedings, and make an order contemplated in section 85
(b);
(d)
there is a matter pending before the Tribunal, as contemplated in
subsection (3) (b), the court may―
(i)
adjourn the matter before it, pending a determination of the
proceedings before the Tribunal; or
(ii)
order the Tribunal to adjourn the proceedings before it and refer the
matter to the court for determination; or
(e)
the credit agreement is either suspended or subject to a debt
re-arrangement order or agreement, and the consumer has complied
with
the order or agreement, the court must dismiss the matter.
[14]
The defendants, over and above showing that there is a matter
relating to the agreement between the parties pending at the
magistrate court and coming on 10 June 2009, and that the applicant
has not prayed for the cancellation of the contract, and that
they
also deny that they were in default with regard to the restructured
payment, have, in my view, established a prima facie case.
I need not
decide the factual issues that are placed in dispute
11
.
[15]
I am therefore of the view that, in the circumstances of this case,
in the exercise of my discretion, I must not grant the
summary
judgment. In the result I make the following order:
1.
That the summary judgment application is dismissed;
2.
That the costs of this application, including the reserved costs of 8
May 2009 will be costs in the cause.
3.
That leave to defendant is granted to the defendants.
N.
M. MAVUNDLA
JUDGE
OF THE HIGH COURT
HEARD
ON THE :29 MAY 2009
DATE
OF JUDGEMENT :3 JUNE 2009
PLAINTIFF’S
ATT :VELILE TINTO & ASSOCIATES
PLAINTIFF’S
ADV :MR. WROOS.
DEFENDANTS’ATT :MABULE
& MOLELE INCORPORATED.
1
'
This
is is a letter dated 7 January 2009 addressed on behalf of the
applicant to Maita Projects, the defendants stating that-
"We
confirm that the payment restructuring has nit been completed. We
have forwarded the proposal to you on the 20th of October
and have
not received any further feedback. Furthermore we confirm that no
payments have been allocated to us either via PDA
nor has client
been maintaining their installment. Notice is hereby given in terms
of
section 86
(10) of the
National Credit Act No 34 of 2005
, that we
terminated the debt review in respect of the consumer."
2
They have attached
annexure "B" which is a letter from Maita Projects CC
dated 1 June 2008 stating as follows:
"We
therefore request that you supply our office within five (5) days of
receipt of this letter in terms of the National
Credit Regulations
24 (3) of 2006, with credit agreements and statement in respect of
the above mentioned and/or account held
with yourself."
3
They have attached annexure "D"
which is a letter dated 15/10/2008 by the Debt Counselor stating
that:
(b) the above mentioned
consumer's application for debt review as successful the debt
obligations are in the process of being
restructured.
........
All
credit Bereau are advised to list the abovementioned consumer within
5 days of receipt of this notice as having applied for
debt review.
4
Annexure
"E"
5
The
respondents have attached annexure "F" as proof of
payments
6
Annexure
"G" has been attached in this regard. The current
installment is R5489, 57 and the restructured installment
is R2104,
74
7
1976 (1) SA418 where at 426 A-C Corbett JA said that:
"Accordingly,
one of the ways in which a defendant may successfully oppose a claim
for summary judgment is by satisfying
the Court by affidavit that he
has a bona vide defence to claim. Where the defence is based upon
facts, in the sense that material
facts alleged by the plaintiff in
his summon or combined summons are disputed or new facts are alleged
constituting a defence,
the Court does not attempt to decide these
or to determine whether or not there is a balance of probabilities
in favour of the
one or the other party. All the Court enquires into
is: (a) whether the defendant has fully disclosed the nature and
grounds
of his defence and the material facts upon which it is
founded. (b) whether on the facts so disclosed the defendant appears
to
have as to either the hole or part of the claim, a defence which
id bona fide and good in law. If satisfies on the these matters
the
Court must refuse summary judgment either wholly or in part as the
case may be....while the defendant need not deal exhaustively
with
the facts and the evidence relied upon to substantiate them, he must
at least disclose his defence and the material facts
upon which it
is based with sufficient particularly and completeness to enable the
Court to decide whether the affidavit discloses
a bona fide defence.
(See generally, Her Dryers (Pty( ltd v Mahommed and Another
1965 (1)
SA 31(1)
; Caltex Oil (SA) Ltd v Webb and nother 1695 (2) (N); Arend
and Another v Astra Furnishers (Pty) Ltd
(1974 (1) SA 298
(C)at
303.4; Shepstone v Shepstone
1974 (2) SA 462
(N) at 467 F-H. At the
same time defendant is not required to formulate his opposition to
the claim with the precision that he
would be required of a plea nor
does the Court examine is by the standard of pleading (See Estate
Potgieter v Elliot
1918 (1) SA 1084
at 1088-9; Herb Dryers case
supra at 323
8
Annexure "G"
has been attached in this regards. The current installment is
R5489.57 and the restructured installment
is R2104.74
9
Vide
Preamble of Act No 34 of 2005
10
Vide section 3 of the Act.
11
Vide the Arend and
Another v Astra Furnishers (Pty) case supra