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[2009] ZAGPPHC 165
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First National Bank Ltd v Rossouw and Another (30624/09) [2009] ZAGPPHC 165 (6 August 2009)
IN
THE N
NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 30624/09
Date:
06/08/2009
In
the application between:
FIRST
NATIONAL BANK LTD PLAINTIFF
and
BENJAMIN
ROSSOUW 1
st
DEFENDANT
SANDRA
WILSON ROSSOUW 2
nd
DEFENDANT
JUDGMENT
[1]
The plaintiff, First National Bank, lent and advanced the sum of
R1.5 million to the defendant, married out of community
of property
,
against
the
security
of
a first mortgage bond, no; B8380770& registered over Erf 2259,
Wierda Park Extension 2.
[2]
In the summons the plaintiff avers that the defendants failed to
maintain regular instalments as a result of which the outstanding
amount of R1.117 180.64 became due and payable,
[3]
Pursuant to the defendants entering appearance to defend the
plaintiff brought an application far summary judgment. The defendants
chose to file an affidavit in terms of Rule 32(3)(b) in an attempt to
satisfy the court that they have a
bona
fide
defence
to the plaintiffs claim,
[4]
"Satisfy"
does
not mean "prove": what the rule requires is that the
defendants in their apposing
affidavits
set up facts which, if proved at the trial, would constitute an
answer to the plaintiffs claim.
[5]
In the opposing affidavit of the first defendant, which was confirmed
by the second defendant firstly raised the argument that
the
plantiff's summons is vague and embarrassing, in that in terms of
section
130(2)
of the National Credit Act, Act 34 of 2005, hereinafter referred to
as the "NCA", "a
creditor
cannot claim a shortfall on a mortgage loan agreement and may only
ask for the property to be (declared) executable".
Section
130 of the National Credit Act provides as follows;
"(1)
Subject to subsection (2), a credit provider may approach
the
court for an order to
enforce
a credit agreement
only if, at that time the consumer is in default and has been in
default under that credit agreement for at least 20 business days
and
-
(a)
At least ten business days have elapsed since the credit provider
delivered
a
notice
to the consumer as contemplated in section 86(9) or section 129(1),
as the case may be.
(b)
In the case of a notice contemplated in section 129(1) the consumer
has-
(i)
Not responded to that notice; or
(ii)
Responded to the notice by rejecting the credit provider's
proposals; and
(iii) In the case of an instalment agreement, secured loan or
lease the consumer has not surrended the relevant property
to the
credit provider as contemplated in section 127.
in
addition to the circumstances contemplated in subsection (1), in the
case of an instalment agreement, secured loan, or laase
a credit
provider may approach the court for an order enforcing the remaining
obligations of a consumer under
a
credit
agreement at any time if-
(a)
ail relevant property has been sold pursuant to-
(i)
an attachment order, or
(ii)
surrender of property in terms of section 127;
and
(iii)
the net proceeds of sale were insufficient to discharge ail the
consumer's financial obligations under the agreement."
(My
emphasis added)
[6]
It was argued by Mr van Heerden who appeared on behaif of the
defendents that the omission from section 130(2) of any reference
to
a mortgageor mortgageloan indicates"that' the legislature
intended that the maximum judgment that may be granted against
a
person on default of a mortgage ban is the value of the property so
mortgaged. He argued that the only order that
i
may
give is an order that the property be declared executable.
[7]
I disagree with Mr Van Heerden's submission. Whilst it is
undoubtedly correct that section 130(2) does not apply to mortgage
loans, but only to the pledge or cession of movables, that plaintiffs
claim falls squarely within the confines of section 130(1),
which is
not in any way limited
by
section
130(1), at least not in so far as mortgage loans are concerned,
[8]
The second point raised by the defendants is that they did not
receive
t
he
notice provided for in section 129. Section 128(1) provides as
follows:
"If
the consumer is in default underthe credit agreement, the
credit
provider-
(a)
May draw the default to the notice of the consumer in writing and
propose that the consumer refer t
he
credit
agreement to a debt councillor
aitemativeiv
dispute resolution agent consumer court orombud with jurisdiction
with the intent thai the parties resolve any dispute under
the
agreement or develop and agree on a plan to bring thepayments
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."
[9]
In terms of section 130(1) of the NCA the credft provider may only
approach the court for an order to enforce a credit agreement
if the
consumer has been in default for at least 20 business days and at
least 10 business days have elapsed "...
since
the credit provider delivered a notice to the
consumer
as
contemplated...
in section 129(1)..."
and
the consumer has responded to that notice.
[10]
Wallis J in
Mtinien
v
BMW Financial Services fSA) (Ptv) ttd & Another
[2009]
ZAKZDHC 6, held that:
"Although
the Act does not contain
a
definition
of 'deliver the Minister has determined in regulation 1 of the
National Credit Regulation published in Government Notice
R489 in the
Government Gazette of 31 may 2006 that, 'deliver' takes place when
the notice is
sent
by registered post My conclusion therefore is that the Minister has
prescribed the manner of delivering documents to a consumer
in terms
of the Act and thai the method of delivery must be in accordance with
the provisions of the definition of delivered in
the regulations
rather than in terms of section 65(2) although as I witt explain
later I do not think that the result would alter
/f
the
latter section applied. For the present the question is whether
a
notice
under section 129(1){a) is delivered if it is sent by registered post
to an address selected by the consumer irrespective
of whether it is
capable of being delivered at that address and whether it comes to
the attention of the consumer. In my view that
question must be
answered in the affirmative for the simple reason that this is what
the definition of 'delivered' says. H says
thai a document is
delivered where it has been sent by one of four possible methods to
the proposed recipient."
[11]
I find myself in respectful agreement with the judgment of Waliis
J.
[12]
In addition to the aforesaid I need to draw attention to clause 211
to 213 of the agreement between the parties which read
as follows:
“
21.1
Any Notice given by the bank in terms of this bond may at the bank's
option be addressed to the mortgagor at the domicilium
referred to in
clause 20 or to the mortgagor's last postal address recorded with the
bank and may be served by registered post.
21.2
Notices
so posted
shall
be deemed to be received bv the mortgagor three days after posting
21.3
A
certificate signed on behalf of the bank stating that a notice has
been
given shall be sufficient and satisfactory proof thereof and the
authority of the signatory and the validity of the signature
need not
be proved."
[13]
Such a certificate was attached to the summons as annexure "B"
and confirmed under oath by the plaintiff in the affidavit
supporting
summary judgment.
[14]
If I
am
wrong in my acceptance of the correctness of the judgment of Wallis
J
referred
to above, the parties in the agreement itself agreed upon a method of
communication and proof thereof which was
complied
with.
[15]
I therefore find that there is no substance in this defence either.
[16]
Thirdly the defendants aver that they have paid an amount of R101
950.00 towards the arrears and contend that the outstanding
balance
should then be only R1. 005 052.00. They contend that they are only
R12 850.00 in arrears. The defendants do not state
that, in addition
to these payments they also paid the regular bond instalments since 1
May 2009.
[17]
On their own version the defendants did not purge their default and
the plaintiff was eratitled to proceed to issue the summons
and
enforce payment.
[18]
At this stage I wish to add that, by agreement between counsel, a
fresh certificate of balance among other documents was handed
up. By
the very nature of these proceedings I cannot and did not have regard
to any such documents.
[19}
The defendants aiso stated that they had invoked debt counselling,
and werepresented by the debt counsellor with a payment
plan,
whereupon they cancelled the debt counselling process. Since this
process has not been completed, it does not stand in the
way of the
plaintiff exacting its rights in terms of the bond.
[20]
Lastly, the defendants rely on section 26 of the Constitution. They
say that they have two children and have a right to adequate
housing.
That is ail. Firstly, it must be emphasized that section 26 of the
Constitution does not stipulate or protect a right
to adequate
housing but a right to housing". (See:
Government
of the Republic of South Africa v Grootboom
2001(1)
SA 46 (CC) para 97.) All that section 26(3) Constitution requires is
that all relevant, circumstances must be considered.
In
Brislev
v Drotskv
2QQ2f4)
SA
1
(SCA)
at
para
[41]
and [42] the majority held that the personal socio-economic
circumstances of the inhabitant do not constitute legally relevant
circumstances, sufficient to refuse an eviction oerder to the owner,
and semble to refuse the relief sought by the plantiff herein.
I am
bound by that decision.
[21]
I am therefore of the view that the defendants have not succeeded in
satisfying me that they have
a
defence
against the
plaintiffs
claim
which
is
valid in law.
[22]
In the result I make the following order;
"Summary
judgment is granted against the first and second defendants, jointly
and severally, the one paying the other to be
absolved for:
Payment
of the amount of R1.117 180.65;
interest
on the aforesaid amount at the rate of 10,1 %.per annum from 1 May
2009 to date of payment, both dates inclusive;
An order
declaring Erf 2259 Wierda Park Extension 2 Township Registration
Division J.R,, Gauteng Province measuring 1022m
2
and being the mortgaged property, the street address of which is
44Uvongo Street, Wierda Park X 2, Centurion, Gauteng Province,
executable for the aforesaid sum
4
Costs
of suit on the scale as between attorney and client"
P.
ELLIS
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Plaintiff: A P Ellis
Attorneys
for the Plaintiff; Salomon & Nicalson
Counsel
forthe Defendants: . DJ van Heerden
Attorneys
for the Defendants: Lombards Attorneys