FirstRand Bank Ltd v Fillis and Another

• Jurisdiction: South Africa
• Judge: Eksteen J
• Judgment Date: 17 August 2010
• Citation: 2010 (6) SA 565 (ECP)
• Docket Number: 1796/2010
• Hearing Date: 03 August 2010
• Counsel: NJ Mullins for the plaintiff. AV Curtain (attorney) for the defendants.
• Court: Eastern Cape Division

FirstRand Bank Ltd v Fillis and Another
2010 (6) SA 565 (ECP)

2010 (6) SA p565

Citation	2010 (6) SA 565 (ECP)
Case No	1796/2010
Court	Eastern Cape High Court, Port Elizabeth
Judge	Eksteen J
Heard	August 3, 2010
Judgment	August 17, 2010
Counsel	NJ Mullins for the plaintiff.; AV Curtain (attorney) for the defendants.

Flynote : Sleutelwoorde G

Practice — Judgments and orders — Summary judgment — Verifying affidavit — Deponent thereof need not be authorised by plaintiff to depose to verifying H affidavit — Uniform Rules of Court, rule 32(2).

Credit agreement — Consumer credit agreement — Debt rearrangement — Consumer in default of rearrangement order — When credit provider may proceed against consumer — Once jurisdictional requirement in s 88(3)(a) of NCA co-existing with any one of jurisdictional requirements in I s 88(3)(b), credit provider entitled to enforce by litigation any right or security under credit agreement without further notice — Restraint placed upon credit provider in such case falling away on express authority of s 88(3) of NCA — National Credit Act 34 of 2005, ss 86(7)(c), 88(3)(a) and 88(3)(b). J

2010 (6) SA p566

Headnote : Kopnota

A Just as the deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit, so it is that the deponent to the verifying affidavit filed in terms of rule 32(2) of the Uniform Rules of Court in summary judgment proceedings need not be authorised by the plaintiff to depose to the affidavit. (Paragraph [13] at 569C - G.)

Once the credit review process has commenced in terms of the B National Credit Act 34 of 2005, s 88(3) of the Act prevents a credit provider from exercising or enforcing, by litigation or other judicial process, any right or security under any credit agreement until -

'(a)

the consumer is in default under the credit agreement; and (b) one of the following has occurred: (i) An event contemplated in subsection (1)(a) through (c); or (ii) the consumer defaults on any C obligation in terms of a re-arrangement agreed between the consumer and credit providers, or ordered by a court or the Tribunal.'

It follows, as a matter of interpretation, that once the jurisdictional requirement set out in s 88(3)(a) co-exists with any one of the jurisdictional requirements set out in s 88(3)(b), the credit provider is at liberty to proceed and to exercise and enforce, by litigation or other judicial process, any right or D security under his credit agreement without further notice. The restraint placed upon a credit provider in consequence of a credit review process and a rearrangement order in terms of s 86(7)(c) of the Act does, where the consumer has defaulted on the debt rearrangement order, fall away on the express authority of s 88(3). (Paragraphs [15], [16] and [18] at 569J - 570C and 570F.)

Cases Considered

Annotations: E

Reported cases

Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) ([2004] 2 All SA 609): dictum in para [19] applied

Pretoria City Council v Meerlust Investments (Pty) Ltd 1962 (1) SA 321 (A): F distinguished.

Rules Considered

Rules of court

The Uniform Rules of Court, rule 32(2): see The Supreme Court Act and the Magistrates' Courts Act and Rules 8 ed (Juta, 2009) at 52.

Statutes Considered

Statutes

G The National Credit Act 34 of 2005, ss 86(7)(c) and 88(3): see Juta's Statutes of South Africa 2009/10 vol 2 at 1-586.

Case Information

Application for summary judgment. The facts appear from the reasons for judgment.

NJ Mullins for the plaintiff. H

AV Curtain (attorney) for the defendants.

Cur adv vult.

Postea (August 17). I

Judgment

Eksteen J:

[1] The plaintiff seeks summary judgment against the defendants, who are married to one another in community of property, in the sum of R101 508,58, together with interest thereon. The debt arises from a J credit agreement, as defined in the National Credit Act 34 of 2005 (the

2010 (6) SA p567

Eksteen J

Act) and is secured by a mortgage bond registered over certain immovable A property situated at Newton Park, in Port Elizabeth. The plaintiff accordingly seeks a further order declaring the property to be executable.

[2] Neither the existence nor the extent of the debt is in dispute. It is common cause that at some stage during 2009 the defendants fell upon B bad economic times. They approached a debt counsellor and made application for debt review in terms of the provisions of s 86 of the Act. The process took its course and on 21 October 2009 the magistrate for Port Elizabeth made an order restructuring the defendants' debts (the rearrangement order) pursuant to a proposal of the debt counsellor in terms of s 86(7)(c) of the Act. The order which the magistrate made was 'that the consumer pay, with effect from 30 November 2009 the amount C of R2850 (per month)'.

[3] I pause to mention that although the order that the magistrate made enjoins the defendants to pay such amounts with effect from 30 November 2009, the defendants had in fact reduced their payments prior to the rearrangement order and made payment through the Distribution D Agent on the strength of the proposal of the debt counsellor.

[4] In its summons the plaintiff alleges that the defendants are both in default of the credit agreement and have defaulted on the rearrangement order. In this regard I was advised from the bar, that the parties are agreed, that over the period from the date of the granting of the E rearrangement order to the issue of summons on 23 June 2010, the defendants have paid R3550 less, in total, than the amount stipulated in the rearrangement order...