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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 1695/24
In the matter between
FIRST RAND BANK LTD APPLLICANT
AND
NAHARAH NOLAN DEFENDANT
CASE NO: 22648/23
FIRST RAND BANK LTD APPLICANT
AND
TOFIQUE FAKIR DEFENDANT
CASE NO: 14955/23
FIRST RAND BANK LTD APPLICANT
AND
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ZIA FREDERICKS CITED IN HER CAPACITY AS EXECITRIX FOR DEFENDANT
THE ESTATE LATE SHEILA HENDRICKS
CASE NO: 20766/23
FIRST RAND BANK LTD APPLICANT
AND
ROBYN EDNA EMMA VAN AS N.O. 1ST DEFENDANT
MICHAEL ANDREW VAN AS 2ND DEFENDANT
Date Judgment: 24 July 2024 (to be delivered via email to the respective counsel)
______________________________________________________________________
JUDGMENT
______________________________________________________________________
THULARE J
[1] All four matters in respect of which the applicant sought written reasons, were heard
in the unopposed motion roll on 24 May 2024. In all four matters First Rand Bank Ltd (the
Bank) applied for an order for payment of a sum of money plus interest, an order declaring
immovable property specially hypothecated under the mortgage bond executable, an
order authorizing the sheriff to sell the property by way of a sale in execution and costs
as between attorney and client. In all four matters, a member of the public came forward
either in person or on behalf of a close relative when the matter was called . No papers
had been filed, including a notice to oppose the application for judgment by default. In
open court, I allowed the people who came forward to tell the court why they came
forward. After they had explained the reasons for their presence in court, in matters where
counsel was not aware of their presence, I stood the matters down to allow cou nsel to
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engage with them . In other matters counsel was aware and had already engaged with
them.
[2] In all four matters, I made the following order respectively:
“1. The application for default judgment and the application in terms of Rule 46A are postpo ned
to 13 September 2024.
2. The plaintiff is directed to ake contact with the defendant and to enter into reasonable
negotiations with her in an attempt to make payment arrangements and/or settle the matter. In
the event of such negotiations not resulting in an arrangement, the plaintiff shall file an affidavit
setting out the efforts made and various steps taken to settle the matter with the defendant,
without disclosing the substance of the offers and counter-offers made;
3. This order shall be served upon the defendant.
4. The costs of this postponement shall be costs in the cause.”
[3] To avoid prolixity which may result in an unnecessary long judgment, I will cite the full
record of proceedings in respect of the first matter involving Naharah Nolan as the
defendant. The transcript reads as follows:
“24-5-2024
COURT ASSEMBLES ON 24 MAY 2024 [10:16]
MR JONKER: As the court pleases, M’ Lord. In this matter the mother …[indistinct]. The mother
…
COURT: Ms Nolan is here; I think she raised her hand.
MR JONKER: Yes.
COURT: Yes.
MR JONKER: The mother of the defendant is in court. As I understand, that maybe the mother
can just indicate to Your Lordship what the position is of the defendant?
COURT: Alright. Let’s start here. Who are you Ma’am?
MS NOLAN ADDRESSES COURT: I’m Tasneem Nolan, the defendant’s mother, Nara Nolan.
She is currently in hospital with a newborn baby.
COURT: I see.
MS NOLAN: So that is why she is not able to – however, I was made aware of this situation when
I got back into the country three weeks ago; so I have literally been trying to get hold of FNB to
make arrangements. I have been liaising with the attorneys. Everything that I have taken to the
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table they’ve shot down, even though I am aware the bond is in arrears of R186 000. I told them
I have R125 000 in my account to transfer to them. They literally shot it down and said they want
the full R180 000 that is outstanding, knowing here was anybody at the bank or th e attorneys
wanting to make any sort of arrangement. As a mother I am coming to say that I don’t want my
daughter and grandson to lose their home, but for the bank and attorneys to take that stance, it’s
quite horrible that they are prepared to let someone sit without a hoe and not make an
arrangement, knowing the mother is there stating she’s got R125 000 to save a child’s home.
[WITNESS EMOTIONAL]
MS NOLAN: So, I’m standing in front of the court now to ask what can you do to help me save a
home that they don’t sit without a home?
COURT: I see, I’m sorry that you’re driven to those emotions but I do understand. Counsel?
MR JONKER ADDRESSES COURT: Yes. As the Court pleases, M’Lord. M’ Lord, just to start off
with, the atmosphere that’s been crated here; the bank is not a type of entity that says if you want
to pay us R125 000 we’re going to say no; please don’t pay us R125 000, we’re not going to
accept R125 000, we’re only going to accept R200 000. I’m just pointing out that if there was
R125 000 to be paid we are much definitely willing to accept that. That’s the first point. We’re not
the type of entities that say no … (intervenes)
MS NOLAN: Can I break your word?
MR JONKER: Please’ don’t pau us.
COURT: Just a minute, ma’am.
MR JONKER: The second issue is, given your Lordship’s approach on a previous matter …
COURT: Yes.
MR JONKER: … and now we’ve got a defendant requesting further assistance, May I request a
similar … [indistinct]? The reason for it is, we know at least it will be two or three months at the
very least before we’re back into motion.
COURT: Yes.
MR JONKER: Then the attorneys can make contact with the defendants. We can enquire further
about the payment and further arrangements and those circumstances which are not currently
before the court can then be set out in an affidavit and the court can then be in a better position
as to hear where … I don’t have those instructions as to exactly what discussions took place,
what were the offers made, why is the defendant’s mother saying well, the bank was simply not
inclined to agree to arrear arrangements. I may just point out the arrears are now over R200 000-
00. But that would be my proposal given the circumstances.
COURT: I see. Do you have anything to say to that ma’am?
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MS NOLAN IN REPLY: So, I have emails up until yesterday where they refused the R125 000
and they wanted the full amount. I’ve asked them to give me four weeks for the rest of my savings
to come loose to pay it finished. They shut that also down. I get it’s a business transaction, but
you can’t be that heartless knowingly a situation was explained that were furnished with the fact
that her husband died, and she literally just gave birth, and they’re not prepared to show any sort
of leniency. Is that the country we live in? I said to that beautiful gentleman over there, why could
I not have spoken to him in all of this time, because he pulled me aside. He said to me>”ma’am,
this is what we can do – what is it called? A Rogers’ order. He can propose that and give me the
buy-in time to be able to settle the R60 000 -odd. But in all of this time, banks and attorneys just
shot down everything. There should be more people like him in this world that is prepared to help
people.
COURT: I see. I can just say, just in passing, to say that I’m not the greatest fan of the Rogers’
order. I think counsel who appear before me know that.
MS NOLAN: I don’t even understand it.
COURT: One day when there is an opportun ity, you’ll know what it means and you’ll have my
reasons why I don’t agree with it. But be this as it may. That’s not taking us anywhere. I think I’m
inclined to counsel’s proposal that he will attend to the matter. You just have to sit down. We’ll
arrange a date. Once counsel has conveyed to you a date, then you can come back on that date.
If the date is arranged whilst I’m still sitting, you will be advised in court of the date. But if it’s after
I have adjourned counsel will prepare a draft order and yo u will just get a copy f that order. Do
you understand that? But it will be roughly three months and it is to give you an opportunity to
engage with the counsel and the gentleman that you say is helpful. Maybe the process can be
taken forward.
But I can just say to you, ma’am, that as you may have experienced with the gentleman that you’re
pointing out, in all institutions we have people who understand what is to be done and what needs
to be done, and we have those who don’t understand or refuse to understa nd what needs to be
done. But I can tell you that our leaders converged in Kempton Park for that document that others
call the bridge to a new ideal South Africa and others call it our country’s birth certificate, the
Constitution of the Republic of South Africa. I’m sitting here to mae sure that you become a
beneficiary of the ideals that are set out in that document. I’s not a false promise, you can rest
assured. Do you understand that? Thank you. You can stand down and counsel will attend to you
later.
MR JONKER: Than you, M’Lord. As the court pleases.
COURT: Thank you.
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COURT ADJOURNS:
[4] In the Western cape Division, a n order granting leave to execute against residential
immovable property but suspending the sale in execution for a period of six months is
commonly referred to in this division as a "Rogers Order'', in honour of Rogers J who
introduced the practice. Generally the terms of that order are payment of a sum of money,
the amount being the total arrears as at that date of order and costs of suit, an order
declaring the property specially executable and an order directing that no sale in
execution of the property could take place on a date earlier than 6 months from the date
of the court order, but authorising the bank to issue a writ of ex ecution and the sheriff to
attach the property in the interim.
[5] One of the purposes of the National Credit Act, 2005 (Act No. 34 of 2005) (the NCA)
is provided as promoting equity in the credit market by balancing the respective rights
and responsibilities of credit providers and consumers [section 3 (d) of the NCA]. In First
Rand Bank Ltd v McLachlan and Others 2020 (6) SA 46 (SCA) it was said in para 9:
“[9] The NCA was promulgated against the background of a history of inequality in bargaining
power which often resulted in large credit providers imposing their will, unreasonably, upon
vulnerable credit consumers. The purpose of the NCA, broadly speaking, is therefore to promote
a fair, transparent, competitive, sustainable, responsible, efficient, effective and accessible credit
market a nd industry. It provides for the protection of credit consumers against the historical
abuses by credit providers in a manner articulated in ss 3(a) – (i). For purposes of the present
inquiry three of these protections are of particular significance. Section 3(d) is directed at
promoting equity in the credit market by balancing the respective rights and responsibilities of
credit providers and consumers. Sections 3(g) and (i) are directed pertinently at the protection of
over indebted consumers. Section 3(g) seeks to protect over indebted consumers by providing
mechanisms for resolving their over indebtedness 'based on the principle of satisfaction by the
consumer of all responsible financial obligations'. In similar vein s 3(i) seeks to protect consumers
by 'providing for 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 agreement'.
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[6] Parties may rearrange their agreement, including through court procedure where
necessary. The point of departure in any rearrangement must of necessity be the
provisions of the NCA and in particular s 3 as set out earlier [para 15 of Mclachlan]. A
rearranged debt may extend the repayment period and may even reduce the monthly
instalments. In my understanding, the arrangement must be economically rational and
must lead to the full payment of the debt within a reasonable time. In the matters before
me, the respondents or those who attended court to help the court mete out justice, made
statements which suggested that the court was not dealing with defendants who
deliberately disregarded their obligations and did not even bother themselves with cou rt
processes where they were served.
[7] In the matter of Fakir, substantial payments were made, although erratic, but way
above the instalment payable per month. It did not seem to me that the rearrangement
was earnestly considered, or if considered why it was not appropriate in this matter. The
matters of Fredericks and Van As involved deceased estates. In both, the executrix
clearly needed some guidance, whilst in grief of a close relative. One appreciated the fact
that the statements were made from the bar. However, they were made in court and could
not be ignored , in the interests of justice. It is against this background that I was not
satisfied that the Rogers’ order was appropriate under the circumstances. In my view, it
will be a salutary practice producing good effects for both debtors and creditor if the
creditor in these types of matters were to take the courts into their confidence and file an
affidavit setting out what steps if any, were taken to settle the matter with a defendant
who responded to them or their attorneys after the process was served until the date of
hearing of the default judgment application.
[8] I am in favour of a statement under oath because it seems that some allegations in
the particulars of claim are simply recited, b ut may be far from the truth. These include
allegations that the defendant had not agreed to a proposal or has not complied with an
agreed plan, when it may be the creditor who did not agree to a proposal made by a
debtor, in good faith, in fultilment of a debtor’s obligations. In other words, like the Nolan
matter suggested, it was FNB who did not agree to a proposal for the immediate payment
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of R125 000 of the outstanding R186 000 and thereafter a few weeks indulgence to pay
R60 000, and not the other way round. For these reasons the orders dated 24 May 2024
were made.
____________________________
DM THULARE
JUDGE OF THE HIGH COURT