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[2012] ZAWCHC 278
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Firstrand Bank Ltd v Schilder and Another (9704/10) [2012] ZAWCHC 278 (30 July 2012)
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
CASE NO: 9704/10
In the matter between:
FIRSTRAND
BANK LIMITED
....................................................................................
Plaintiff
and
DESMOND
NORMAN SCHILDER
..................................................................
First
Defendant
GLYNNIS ANNE
SCHILDER
......................................................................
Second
Defendant
JUDGMENT : 30 JULY 2012
GAMBLE, J:
[1]
On 13 May 2010 the Plaintiff (“the Bank”) issued summons
against the two debtors in this matter who were then jointly
described as (“the Defendants”). The cause of action was
the repayment of the sum of R933 619.55, together with interests
and
costs, being monies lent and advanced by the Bank to them under a
written agreement of loan, which loan was secured by a mortgage
bond
over the property which they jointly owned. The parties are married
to each other in community of property.
[2]
The debtors entered an appearance to defend the claim and the Bank
applied for summary judgment, which was opposed by the debtors.
[3]
The matter was enrolled in the motion court on various occasions over
the following twenty months or so, and seems to have been
the subject
of various agreed postponements.
[4] When application was made for
summary judgment in June 2010 the citation of the debtors jointly as
Defendants was altered (without
a notice in terms of Rule 28) so that
Desmond Norman Schilder was thereafter described as the First
Defendant and Glynnis Anne
Schilder as the Second Defendant, Neither
party objected to this non-compliance with the rules, and the matter
thereafter proceeded
against the two Defendants so cited.
[5] After an
agreed postponement of the matter for an indefinite period on 7 July
2011, the Bank re-enrolled the matter for hearing
on 9 May 2012. At
this hearing
Ms. Liebenberg
,
counsel for the Bank moved for summary judgment while
Mr.
Joubert
, attorney for the debtors,
argued two procedural points. Firstly, it was said that the notice
issued by the Bank in terms of Section
86(10) pf the National Credit
Act, No. 34 of 2005 (“the NCA”), in terms whereof the
Bank terminated the debtors’
debt review, was not properly
served in that there was only delivery by registered post to Ms.
Schilder, the Second Defendant.
Secondly, and only in the event of
the Court finding that there was proper termination in terms of
Section 86(10), the Court was
asked to exercise its power under
Section 86(11) of the NCA and to order that the debt review process
be reinstated.
[6] If a debtor
is under debt review, a creditor may
not
commence ; legal proceedings against
the debtor until it has complied with the provisions of Section
129(i)(b) of the NCA. In the
instant case this required the Bank to
provide notice to the debtors in terms of Section 86(10) of the NCA.
This notice is compulsory
.
1
,
and without it the summons may not be issued
2
.
[7] It is common
cause that the Section 86(10) notice in this case was sent only to
the Second Defendant, albeit at the parties’
residential
address, which was their chosen
domicilium
citandi et exeoutandi.
In the
affidavit opposing summary judgment Mr. Schilder takes the point that
there was non-compliance with Sebtion 86(10), but
does not amplify
the allegation in any detail, in argument, however,
Mr:
Joubert
argued that there should
have been service of the Section 86(10) notices on both the
Defendants.
[8] I am of the
view that there is some substance in this argument.
Ms.
Lieberberg
argued that the point was formulaic and that it is inconceivable that
the notice did not come to the attention of Mr. Schilder,
given the
fact that he and the Second Defendant resided in the same house. That
argument may hold water after all the evidence
has been heard at the
trial of this matter.
[9] However, in
light of the decisions in
Zammit v
Standard Bank of South
Africa
Limited
3
and
Subramanian v Standard Bank
Limited
4
,
I consider that, the Defendants may be successful on this point at
the trial of this matter. Such success could, of course, vitiate
the
ehtire proceedings.
[10] In light of
the
dictum
of Navsa JA in
Joob Joob Investments
(Ptv) Ltd v
Stocks
Mavundla Zek Joint Venture
2009 (5)
SA 1
(SCA) at 11G-12D, I ^m wary of “
shutting
out”
the Defendants at this
stage in circumstances where the initiating of the proceedings may be
found to be fatally defective. In
such circumstances it would not be
appropriate to grant summary judgment.
[11] Accordingly I make the.following
order:
The application lor summary judgment
is refused.
The Defendants are given leave to
defend the matter.
C. The costs of the summary judgment
application will stand over for .determination at the trial.
GAMBLE J
1
Sebola
and another v Standard Bank of SA Limited and others
[20121ZACC11
2
Section
88(3) of the NCA