About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2008
>>
[2008] ZAFSHC 69
|
|
Nedbank Limited v Sutherland (4561/2008) [2008] ZAFSHC 69 (18 September 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No. :
4561/2008
In the
case
between:-
NEDBANK
LIMITED
Applicant/Plaintiff
and
LORRAINE
SUTHERLAND
Respondent/Defendant
_____________________________________________________
HEARD
ON:
11
SEPTEMBER 2008
_____________________________________________________
JUDGMENT
BY:
MABESELE,
AJ
_____________________________________________________
DELIVERED
ON:
18
SEPTEMBER 2008
_____________________________________________________
[1] This
is an opposed application for summary judgement in the amount of R2
547 646,08
,
together with interest at the rate of 14.40% per annum, from the 1
st
of June 2008 until date of final payment.
[2] The
plaintiff seeks an order also, declaring the immovable property, as
described in prayer 3(a) and (b) in the summary judgement
application, to be executable.
[3] The
defendant raised two issues
in
limine
.
First, that proper service of the summons was not effected in terms
of the Rules. Second, the action is premature and contrary
to the
provisions of the National Credit Act, (Act 34 of 2005), (“the
Act”). Mr. Pohl, who appeared on behalf of the
respondent,
abandoned the first point.
[4] Section
129 of the Act, which the defendant relies on, reads as follows:
“129 Required
procedures before debt enforcement
(1) If the consumer is in default
under a credit agreement, the credit provider-
(a) may
draw the default to the notice of the consumer in writing and propose
that the consumer refer the credit agreement to a
debt counsellor,
alternative dispute resolution agent, consumer court or ombud with
jurisdiction, with the intent that the parties
resolve any dispute
under the agreement or develop and agree on a plan to bring the
payments under the agreement up to date; and
(b) .....,
may not commence any legal proceedings to enforce the agreement
before-
(i) first providing
notice to the consumer, .....; and
(ii) meeting any
further requirements set out in section 130.”
[5] The plaintiff avers
that it complied with the provisions of the Act.
[6] In its particulars of
claim, the plaintiff avers, in paragraph 10, as follows:
“
Eiser het behoorlik voldoen aan
al die relevante bepalinge van die Nasionale Kredietwet, Wet 34 van
2005.”
[7] Mr. Snellenburg, who
appeared on behalf of the plaintiff, referred to a certificate
annexed to the papers as proof of delivery
of a notice to the
defendant.
[8] The certificate
contains the following:
“I,
Nonhlanhla Siluma (Foreclosure Manager) certify that:
1. I am employed by the Nedbank
Limited (the Bank). As part of my duties I attended to the affairs
of L. Sutherland, (the client)
account number 8944201400101, in terms
of a credit agreement Homeloan (the agreement) with the Bank.
2. The client has been in default for
20 (TWENTY) business days or more in regards to his obligations under
the agreement.
3. A notice in terms of section
129(1) of the National Credit Act No. 34 of 2005 (the Act) was
delivered to the client on 03/05/2008.
At least 10 (TEN) business
days have elapsed since the Bank delivered the notice to the client
(the notice).
4. The client has
not responded to the notice/The client has responded to the notice by
rejecting the Bank’s proposals.
5. To the best of my knowledge there
is no matter arising under the agreement that is pending before the
National Credit Tribunal
(the Tribunal) which could result in an
order affecting the issues to be determined by the court.
6. The Bank has not approached the
court in this matter:
6.1 during the
time that the matter was before a debt counsellor, alternative
dispute resolution agent, consumer court or a bank
ombudsman;
6.2 despite the client having:
6.2.1 surrendered any property to
the Bank in terms of section 127 of the Act and before the property
has been sold;
6.2.2 agreed to a proposal made in
terms of the section 129 notice and acted in good faith in fulfilment
of the agreement;
6.2.3 complied with an agreed plan
as contemplated in section 129(1)(a); or
6.2.4 brought the payments under
the agreement up to date as contemplated in section 129(1)(a) of the
Act.
7. No dispute exist in respect of
entries made as contemplated in section 111 of the Act, alternatively
if a dispute existed the
Bank complied with section 111(2)(b)(i).
The Bank explained/reversed the entry. Such dispute is not under
alternative resolution
procedures or before the Tribunal.
8. I respectfully submit that the
Bank is entitled to approach the court for an order to enforce the
agreement.”
[9] The defendant denies
that a notice was delivered to her. She explains that there is no
postal service to the unit in the sectional
title complex and that no
persons would have been allowed entrance to her unit.
[10] Mr.
Pohl argued,
inter
alia
,
that the plaintiff did not state the manner in which it delivered the
required notice. He argued that failure by the plaintiff
to state
how a notice was delivered, shows clearly that same was not
delivered.
[11] In
terms of section 65 of the Act, a notice may be delivered either in
person or by fax, or email, among others.
[12] The
defendant’s explanation that a notice could not have been
delivered
to
her due to the difficulties which are being experienced in entering
the entrance to her unit, has no merit. The Act does not
require
that the 129(1) notice must come to the notice of the defendant or
that the defendant must actually receive such notice.
What is
required is that notice must be given to the defendant. Be that as
it may, the plaintiff must still comply with the provisions
of the
Act for summary judgement to be granted.
[13] The
argument raised by Mr. Pohl insofar as it relates to the plaintiff’s
failure to comply with the provisions of section
65 of the Act, has
no merit. The Act clearly requires compliance with the provisions of
section 129(1) only, before a debt is
enforced. In any case, the
defendant did not raise non-compliance with the provisions of section
65 as a
bona
fide
defence.
[14] Section
130 of the Act prescribes the circumstances under which a credit
provider may approach the court for an order to enforce
a credit
agreement.
[1
5] Sub-section
(1) of section 130 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) .....
(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;”
[1
6] In
paragraph 4 of the aforementioned certificate, Ms Nonhlanhla Siluma,
who is employed as Foreclosure Manager by the plaintiff,
said:
“
The client has not responded to
the notice/The client has responded to the notice by rejecting the
Bank’s proposals.”
[1
7] Paragraph
4 of the certificate is clearly ambiguous. It states that a client
has not responded to a notice or has responded
by rejecting the
Bank’s proposals.
[18] Mr.
Snellenburg conceded that Ms Siluma did not make herself clear.
[
19] Mr.
Pohl pointed out that the court may not assist the plaintiff by
breathing life into a poorly presented case. He submitted
that the
court should consider itself bound by the terms in which the
plaintiff has elected to formulate its claim.
[20] In
the matter of
GULF
STEEL (PTY) LTD v RACK-RITE BOP (PTY) LTD AND ANOTHER
1998 (1) SA 679
(O) at 683H/I – 684B, Gihwala AJ said:
“
In view of
the nature of the remedy the Court must be satisfied that a plaintiff
who seeks summary judgment has established its
claim clearly on the
papers and the defendants have failed to set up a
bona
fide
defence as required in terms of the Rules of this Court. There are
accordingly two basic requirements that the plaintiff must meet,
namely a clear claim and pleadings which are technically correct
before the Court. If either of these requirements is not met,
the
Court is obliged to refuse summary judgment. In fact, before even
considering whether the defendant has established a bona
fide
defence, it is necessary for the Court to be satisfied that the
plaintiff's claim has been clearly established and its pleadings
are
technically in order. Even if a defendant fails to put up any
defence or puts up a defence which does not meet the standard
required of a defendant to resist summary judgment, summary judgment
should nevertheless be refused if the plaintiff's claim is
not
clearly established on its papers and its pleadings are not
technically in order and in compliance with the Rules of Court.”
(See
also
NORTHERN
CAPE SCRAP & METALS (EDMS) BPK v UPINGTON RADIATORS & MOTOR
GRAVEYARD (EDMS) BPK
1974 (3) SA 788
(NC).)
[21] In
paragraph 10 of the particulars of claim, the plaintiff avers that it
complied with all the relevant requirements of the
Act. The
plaintiff then referred to a certificate annexed to the papers in
support of its averment. However, when regard is had
to paragraph 4
of the certificate, it is clear that the statement in that paragraph
is ambiguous. Therefore, it cannot be said
with certainty that the
defendant responded to a notice or not.
[22] Mr.
Snellenburg’s attempt to clarify this ambiguity did not help
the plaintiff in curing a defect in the certificate.
[23] In
the matter of
MOWSCHENSON
AND MOWSCHENSON v MERCANTILE ACCEPTANCE CORPORATION OF SA LTD
1959 (3) SA 362
(W), Marais J, said at 366E – F that:
“
The proper
approach appears to me to be 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 that it permits a judgment to be
given without trial. It closes the doors of
the Court to the
defendant. (See the case of
Symon
& Co., supra
).
That can only be done if there is no doubt but that the plaintiff has
an unanswerable case. If it is reasonably possible that
the
plaintiff's application is defective or that the defendant has a good
defence, the issue must, in my view, be decided in favour
of the
defendant.”
[2
4] As
I have stated earlier, paragraph 4 of the certificate is ambiguous
and thus rendering the plaintiff’s application defective.
In
my view, the plaintiff commenced legal proceedings to enforce the
agreement before properly meeting the requirements set out
in section
130 of the Act. As a result, the plaintiff did not comply with the
provisions of section 129(1)(b) of the Act. Therefore,
summary
judgement should be refused.
[25] Mr. Snellenburg
asked that costs should stand over. Mr. Pohl left the issue of costs
in the hands of the court.
[26] I have considered
carefully the argument raised by Mr. Snellenburg regarding costs and
I deem it appropriate that costs be
determined at the trial.
[27] In the premises, the
following order is made:
(a) Summary judgement is
refused.
(b) Leave is granted to
the defendant to defend the action.
(c) The costs shall be
determined at the trial.
__________________
M.M. MABESELE, AJ
On
behalf of plaintiff: Adv. N. Snellenburg
Instructed
by:
Hill,
McHardy & Herbst Inc.
BLOEMFONTEIN
On
behalf of
defendant: Adv.
L. Pohl Instructed by:
Webbers
BLOEMFONTEIN
/sp