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NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO: EL 521/2025
In the matter between:
NEDBANK LIMITED Plaintiff
And
PHILLIP GERALD CLAASEN First Defendant
YVETTE CLAASEN Second Defendant
________________________________________________________________
RULING IN OPPOSED SUMMARY JUDGMENT
APPLICATION, AND BRIEF REASONS THEREFOR
________________________________________________________________
HARTLE J,
[1] The plaintiff seeks summary judgment against the defendants for
payment of the sum of R1 874 238.04 plus interest and costs in respect of a
home loan agreement arising from the defendants’ alleged breach of the
agreement’s terms.
[2] The defendants deny that they are in arrears. More particularly and
despite a formal debt review intervention that interposed itself, they allege that
they have faithfully maintained payments in respe ct thereof (their continuing
monthly payments are borne out by bank statements at least) and that the
restructuring plan relative to the debt review takes into account the final costs of
the contract for the duration of the home loan agreement so that the plaintiff will
not be prejudiced over the entire duration of the agreement.
[3] It is abundantly plain that there is a discord between the essential terms of
the home loan agreement and the plaintiff’s Declaration concerning the aspect
of the interest payable by the defendants under the home loan agreement.
Indeed one can hardly appreciate how the starting variable rate of interest of
7.25% plus prime factor (0.10%), equating to a minimum monthly instalment of
R14 892.92 at the time, escalated to 10.85% by th e date of the capital advance
(and climbing) since the capital under the home loan agreement was advanced
thereunder.
[4] The plaintiff should have pleaded how and when the escalations arose,
and the minimum monthly instalments were changed thereby, so that the
defendants’ supposed default at the time of the issue of the damning Certificate
of Balance makes sense. The variations in the interest rate ought to have been
in writing. Even though the home loan agreement makes provision for an
automatic increase/decrease in the instalments payable the plaintiff has failed to
illustrate its entitlement to such increases as and when they arose. There is
simply no indication on the statements provided how the defendants purportedly
got to be in arrears on the basis of the plaintiff’s averment that they failed to pay
the minimum monthly instalment.
[5] Further although the home loan agreement anticipated that there might
realistically be a debt review down the line, and provides for its impact in the
essential terms of the agreement, this has also not been dealt with in the
Declaration to appreciate how the debt review order, actually granted,
negatively impacted upon the parties’ contractual arrangement and debit interest
obligations. Indeed the plaintiff did not e ven plead in its Declaration that there
was a debt review and that this was terminated in compliance with section 86
(10) of the National Credit Act, No. 30 of 2005 (“NCA”).
[6] Thus, the plaintiff’s allegation that the debt rearrangement order was
ultra vire s the NCA, is not immediately apparent. Indeed the basis for the
plaintiff’s rejection of the “ partial payment ” received under the debt review
order supposedly justifying the rescission of the Magistrate’s Court’s order for
want of want of “the contractual payments … expected” is not clear.
[7] The plaintiff’s averment that the defendants failed to pay the “ minimum
monthly instalments” due under the agreement makes no sense, because on the
face of it, at the point the plaintiff’s system begins to reflect an arrears figure,
the amount indicated as “ received” exceeds the minimum monthly instalment
portended by the loan agreement. (To my mind the defendants’ claim that there
has been an error in the calculations by the plaintiff is not unrealistic.) Further
the terms of the loan agreements at least in its end goal, in relation to the debt -
restructuring plan that the defendants went along with for a long while, permits
of a conclusion that the plan could reasonably be accommodated with the terms
of the home loan agreement.
[8] It is common cause that the plaintiff managed to obtain an order
rescinding the debt review order in respect of the defendants’ obligations to it
under the impugned home loan agreement long after it was granted by the
Magistrate’s Court.
[9] The defendants aver however that such application was not served on
them in compliance with the provisions of section 86 (10)(a)(i) of the NCA.
They only came to learn of the rescission order upon being served with the
section 129 notice. The plaintiff f eebly pleads that they “ did have notice ” but
the reason why it so avers is on the basis that the bank served it on the debt
counsellor who was also their attorney of record at the time. Whilst the
defendants plead a break in their relationship with the de bt counsellor, it is
evident that the latter in fact filed a notice to oppose that application that
culminated in the recission of the debt review order.
[10] In any event the defendants were entitled as consumers to have been
personally served with the notice to terminate the review in the prescribed
manner.
[11] On the merits of the case, I am satisfied that the defendants raise a triable
issue. Indeed they strike me as responsible consumers who have commendably
kept up their payments and even at the commencemen t of their agreement paid
more than the minimum monthly instalment indicated.
[12] As for their request for an order that the debt review resumes, I am
satisfied that it is both competent for this court as the “ enforcing court” to grant
such relief, and indeed desirable that the debt rearrangement plan be reinstated
forthwith to give effect to the aim and objectives of the NCA which, inter alia,
seek to recognize mechanisms for resolving over-indebtedness and to encourage
and promote responsible consumer obligations under credit agreements.
[13] Given the plaintiff’s unreasonable resort to this application, I am satisfied
that the defendants are entitled to their costs of opposing the application.
[14] Thus, the order which I make is as follows:
1. The application for summary judgment is refused.
2. The defendants are given leave to defend the action.
3. The defendants’ debt restructuring order under Case No. 1435/2023, in
the Magistrate’s court for the District of East London, held at East
London, and dated 1 June 2023, insofar as it relates to the Nedbank
Homeloan under reference 8[...], is reinstated with the remaining term
of the order being 193 months.
4. The plaintiff is to pay the costs of the summary judgment application
on the party and party scale, including costs of counsel, on Scale B.
_________________
B HARTLE
JUDGE OF THE HIGH COURT
DATE OF HEARING : 2 September 2025
DATE OF RULING : 12 September 2025
Appearances:
For the plaintiff : Mr. B Tarr instructed by BLC Attorneys, East London (ref. C
Charlsey/Elmareth/L27135)
For the defendants : Ms. D Mostert instructed by Sharp, Crisp Inc., East London (ref. Ms. K
Crisp).