Firstrand Bank Ltd v Christofi (3568/2009) [2009] ZAFSHC 104 (22 October 2009)

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[2009] ZAFSHC 104
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Firstrand Bank Ltd v Christofi (3568/2009) [2009] ZAFSHC 104 (22 October 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3568/2009
In
the
matter
between:-
FIRSTRAND
BANK LIMITED
Plaintiff
and
MR
SAVVA CHRISTOFI
Defendant
_____________________________________________________
CORAM:
H.M.
MUSI, JP
_____________________________________________________
HEARD
ON:
15
OCTOBER 2009
_____________________________________________________
DELIVERED
ON:
22
OCTOBER 2009
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M.
MUSI, JP
[
1] On
16 October 2009 I made an order granting the defendant condonation
for the late filing of his affidavit opposing the summary
judgment
application that the plaintiff had brought against him and further
adjourning the matter
sine
die
and setting out the steps that the plaintiff had to take before the
matter could be resumed as is provided for in section 130(4)(b)
of
the National Credit Act, 34 of 2005, (the NCA). I indicated that I
would furnish the reasons therefor later. Such reasons
now follow.
[
2] The
plaintiff sued the defendant for payment of the amount of R295 626.34
plus interest, being in respect of a debt owing by
the defendant to
the plaintiff and which was secured by a mortgage bond registered in
favour of the plaintiff over Erf 187 Deneysville,
district Heilbron,
Free State. The plaintiff also seeks an order declaring Erf 187
Deneysville executable, plus costs of suit.
[
3] The
defendant filed a notice of intention to defend, whereupon the
plaintiff brought an application for summary judgment in terms
of
rule 32. The defendant filed an affidavit opposing the summary
judgment application, but such affidavit was out of time and
the
defendant had to apply for condonation. The application for
condonation was launched pursuant to an order of 27 August 2009.
[4
] There
are therefore two applications before me, which are both opposed.
They were argued together. I am referring to the parties
as
plaintiff and defendant, for the sake of convenience.
[5] The
requirements for the grant of condonation are well-known and I need
not repeat them here. They are captured in the heads
of argument
filed by Mr. Johnson, for the defendant, at page 3. The defendant’s
opposing affidavit was filed only two days out
of time. In my view,
the defendant has given a reasonable explanation for the delay and
there was no wilful default on his part.
This much was conceded by
Mr. Els for the plaintiff. The focus of argument was whether the
defendant has disclosed in his condonation
application that he has a
bona
fide
defence to the plaintiff’s claim.
[6] In
his founding affidavit to the condonation application, the defendant
refers to the defence he raised in his affidavit opposing
the summary
judgment application. Mr. Els suggested that this was not good
enough, that the defendant should have set out the
particulars of his
defence in the founding affidavit. The answer to this is that the
plaintiff was fully aware of the details
of such defence and dealt
with it in full in his answering affidavit in an attempt to show that
such defence was not
bona
fide
.
In particular, it annexed a document showing that the R15 000,00
that the defendant claimed he had paid and was not credited
to his
account, had in fact been credited. I hold that the defendant was
entitled to incorporate the details of his defence by
reference to
his affidavit opposing the summary judgment.
[7
] The
question is whether the defence thus disclosed is
bona
fide
.
In this regard it will be noted that in the summary judgment
application the plaintiff would have been unable to deal with the

merits of the defendant’s defence by virtue of the nature of such
application where a replying affidavit is normally not allowed.

However, in a condonation application the plaintiff is entitled to
deal with such defence. See
SOUTH
AFRICAN BREWERIES LTD v RYGERPARK PROPS (PTY) LTD AND OTHERS
1992 (3) SA 829
(WLD) at 833 B – D.
[8] The
defendant’s defence is based on two grounds. The first ground is
that he was not in arrears with his instalments at the
time when the
plaintiff commenced legal proceedings, in that he paid an amount of
R15 000,00 on 15 January 2009, which the plaintiff
has not credited
to his account. In my view, the plaintiff has shown that this amount
was in fact credited and taken into account.
This leg of defendant’s
defence falls off. The second ground was raised by Mr. Johnson
during the course of oral argument when
he contended that the
plaintiff has failed to place the defendant
in
mora
as provided for in the relevant credit agreement and that this
rendered institution of legal proceedings premature. Mr. Els
countered
this by pointing out that such defence was not part of the
defendant’s papers. In my view, this puts to rest such defence.
At any rate, a notice in terms of section 129(1) of the NCA, if
validly delivered, would serve the same purpose.
[9] The
third ground is that the plaintiff has failed to comply with the
requirements of section 129(1) of the NCA. Quite clearly
if no
proper notice in terms of this section has been delivered to a
consumer, that would be a complete bar to the institution
of legal
proceedings to enforce the terms of the credit agreement. See
ABSA
BANK LTD v PROCHASKA t/a BIANCA CARA INTERIORS
2009 (2) SA 512
(D&CLD) at 520 par. [35];
MARIMUTHU
MUNIEN v BMW FINANCIAL SERVICES (SA) (PTY) LIMITED AND ANOTHER
,
Case no. 16103/2008, an unreported judgment of the KwaZulu-Natal High
Court at p. 2 par. [2]. The defendant contends that he
did not
receive the notice, which was posted to an address other than his
chosen
domicilium
.
[10] It
will be noted that in the credit agreement, the defendant chose Erf
no. 187, Deneysville, Heilbron, Free State, as his
domicilium
citandi
et executandi
whereas the notice in terms of section 129(1) was dispatched by
registered post to No. 11 Kloof Road, Oriel, which is apparently
in
Johannesburg. Where a consumer has chosen a
domicilium
in the relevant credit agreement, the notice in terms of section
129(1) must be sent to such address. See
ABSA
BANK LTD v PROCHASKA
,
supra
,
at
524 I - 525 B. If the notice is sent to a different address, there
would not be compliance with the requirements of the section
unless
it is proved that the consumer has actually received the notice.
In
casu
the notice was sent to an address that was not chosen by the
defendant and he alleges that he did not receive it. I conclude that

the provisions of section 129(1) have not been complied with. On
that basis alone the institution of legal proceedings against
the
defendant was premature and this constitutes a
bona
fide
defence.
[
11] I
therefore granted the application for condonation of the defendant’s
late filing of his affidavit opposing the summary judgment
and
naturally the costs had to follow the cause.
[12] Counsel
were both agreed that should I find that there has not been
compliance with section 129(1) I could make an order in
terms of
section 130(4)(b) of the NCA. That section provides that where the
court finds that there has not been compliance with
the requirements
of section 129, it must adjourn the matter and make an appropriate
order setting out the steps that the credit
provider must complete
before the matter can be resumed. In other words, the proceedings
must be suspended pending completion
of the steps that the credit
provider has been ordered to complete.
___________
_
H.M.
MUSI, J
P
0
n
behalf of plaintiff: Adv. J. Els
Instructed
by:
Rossouws
Attorneys
BLOEMFONTEIN
On
behalf of
defendant: Adv.
J.M.C. Johnson
Instructed
by:
Harry
Goss Attorneys
c/o
Claude Reid Inc.
BLOEMFONTEIN
/sp