Mabuduga v Nedbank Ltd

• Jurisdiction: South Africa
• Court: Gauteng Division, Pretoria
• Judge: Le Grange AJ
• Citation: 2020 (1) SA 599 (GP)
• Docket Number: 76369/2014
• Year: 2020
• Counsel: M Coetzee for the applicant. WJ Roos for the respondent.

Le Grange AJ:

[1] This is an application for rescission (not specified whether under rule 42, rule 31 or the common law, but to be considered, regardless) [1] of an order granted by Madiba AJ in this court on 13 May 2013. The order granted in favour of the respondent/plaintiff (Nedbank) against the applicant/defendant (applicant) was for:

'1.

Payment of the amount of R551 013,19. Interest on the amount of R551 013,19 at the rate of 9,25% per annum calculated and capitalised monthly in advance from 1 September 2014 to date of payment.

2.

Cost of suit as between attorney and client scale.

3.

Prayers 2 and 4 are postponed sine die.'

[2] At the start of the hearing, the parties (through counsel, in a sincere attempt to dispose of the matter amicably) approached the court with a draft order, containing certain terms, and insisted that it be granted, as it was by consent.

Judicial overview

[3] The court has the duty to review the terms consented to, and to ensure that any order it makes is legally sound. That is, within the boundaries of the applicable law and not against public policy or contra bonos mores.

[4] The court should not slavishly adhere to settlement or consented terms proposed by parties, and only act as rubber stamp. To do so would be disastrous to our law and our Constitution. The order, if not legally sound, may be set aside on the basis that no such order could have been made in law.

[5] To this end, it was important to consider the draft order, while having regard to the facts and the applicable legislation.

Le Grange AJ

Background facts

[6] The background facts in this matter are very similar to those in Rougier v Nedbank [2013] ZAGPJHC 119 (2013 JDR 1167 (GSJ)), wherein action was instituted for the enforcement of a credit agreement (as envisaged by the National Credit Act 34 of 2005 (the Act)) and judgment granted after the applicant had applied for debt review (in terms s 86(1) of the Act) and subsequent to Nedbank receiving a form 17.4 notice of termination from the debt counsellor.

[7] The factual matrix herein differs to the extent that in Rougier the debt counsellor 'withdrew' the debt review application due to the applicant's uncooperativeness, while in this matter the debt counsellor gave notice to Nedbank, using form 17.4 which stated that: 'This notice serves to advise you that the application for Debt Counselling dated 15 May 2014 has been voluntarily withdrawn by the consumer.' (Own emphasis added.)

[8] This notice of withdrawal of the application for debt counselling led to action being instituted by Nedbank and default judgment being granted.

[9] In the judicial overview process and in considering the terms of the proposed draft order, the question whether a consumer is entitled to exit, withdraw from, or terminate, the debt review process after his/her application in terms of s...