First Rand Bank Ltd v Makhoba

• Jurisdiction: South Africa
• Judge: Mavundla J
• Judgment Date: 14 October 2011
• Docket Number: 55443/10
• Court: North Gauteng High Court, Pretoria
• Hearing Date: 30 August 2011
• Citation: 2011 JDR 1349 (GNP)

Mavundla, J:

[1]

This is an opposed application for summary judgment against the respondent for:

1.1

payment in the amount of R1,355,684. 05

2011 JDR 1349 p2

Mavundla, J

1.2

interest at the rate 8.00 % per annum, compounded daily and capitalized monthly in terms of the Mortgage Bond, with effect from the 2nd of September 2010 to 9th September 2010 and at 7.50% from 10th September 2010 to date of payment both dates inclusive;

1.3

An order declaring the ERF 532 NOORDHANG EXTENSION 42 TOWNSHIP, REGISTRATION DIVISION IQ, THE PROVINCE OF GAUTENG, MEASURING 511 (FIVE HUNDERED AND ELEVEN) SQUARE MERES AND HELD UNDER DEED OF TRANSFER T 43932/2006 executable for the said sum.

1.4

Cost of suit on the scale as between attorney and client.

[2]

The applicant's claim against the respondent arises from moneys lent and advanced by the applicant to the respondent, which are secured by a covering bond registered against the immovable property of the respondent mentioned in paragraph 1 herein above. The agreement was entered into on or about 6 August 2009 and was attached to the summons as annexure

2011 JDR 1349 p3

Mavundla, J

"A". The Mortgage Bond securing the debts was attached to the papers as annexure "B".

[3]

The respondent, in opposing the application for summary judgment filed an affidavit in which he takes a point in limine that:

(a)

whereas its claim is based .on a loan & Mortgage Bond agreement which is a liquid document, the applicant failed to attach any such Loan Agreement.

(b)

the applicant failed in his action to address the applicability of the NCA or its compliance therewith.

(c)

the applicant's cause of action is fatally defective and the application should be dismissed.

[4]

The respondent, in respect of the merits, contended that the applicant was neither allowed to terminate his debt review in terms of section 86(10) of the NCA nor was such termination valid because the purported notice of termination was sent to 21 Nouvelle, 113 Bellairs Drive North Riding, 2169 which was not the chosen domicilium citandi et executandi address 6

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Mavundla, J

Andiamo, Hyperion Street, Noordhang Extension 42 Randburg, Gauteng.

[5]

The respondent further contended that he applied for debt review on or about 2 January 2008 in terms of s86 of the NCA at the offices of Ms Elizabth Mokgata, a registered Debt Counsellor. His debt review application was never referred to the magistrate's court in terms of s87 of NCA. He further contends that he was not aware that his debt review application should have been referred to the Magistrate's court and his debt counsellor never informed him thereof. He further contends that he is bona fide with his debt review and will refer the debt review to the Magistrate's Court in terms of s87.

[6]

The respondent further contended that in terms of s86(10) the applicant should have sent a notice to him, the debt counsellor and the National Credit Regulator. The applicant failed to annex any such notice as proof of delivery to the National Credit Regulator.

2011 JDR 1349 p5

Mavundla, J

AD POINT IN LIMINE

[7]

With regard to the first point taken, namely that the applicant failed to attach the Loan Agreement and Bond, which are the liquid documents upon which the claim is founded, I need refer to the matter of Caltex Oil (SA) Ltd v Crescent Express (Pty) Ltd and Others [1] where it was held that: "For there to be verification of a cause of action within the meaning of Rule of Court 32 (2), there must be made to appear a complete cause of action. Rule of Court 32 (2) contemplates that to the summons, in a case where summary judgment may be applied for...