Firstrand Bank Limited t/a GMW Finance a division of Westbank v Goldberg (62331/18) [2019] ZAGPPHC 250 (18 June 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

CASE NO: 62331/18

18/6/2019

In the matter between:

FIRSTRAND BANK LIMITED t/a GWM FINANCE

A DIVISION OF WESTBANK

PLAINTIFF

And

BIANCA GOLDBERG

DEFENDANT

JUDGMENT

COLLIS J:

INTRODUCTION

1. This is an opposed Summary Judgment.

BACKGROUND

2. The plaintiff's cause of action is based on a written agreement in terms of which the defendant purchased from the Plaintiff:

1 X 2012 Nissan Juke 1.6

Dig T Tekna

Chassis Number: SJN FAAF 1526173693

The Instalment Sale Agreement was electronically conducted between the parties on 7 February 2014.

3. In terms of the agreement so conducted the defendant was required to maintain regular payments as the account and the plaintiff shall remain the owner of the vehicle until the defendant has paid all amounts and have complied with all its obligations in terms of the agreement.

4. In breach of the terms of the agreement the defendant as at 11 June 2018, was in arrears in the sum of R22 520, 20.[1]

5. Approximately, two years after concluding the agreement the defendant applied to be placed under debt review after the credit agreement was referred to a debt counsellor in terms of section 129(1) read with section 130 of the National Credit Act 34 of 2005.

6. In pursuance of the said referral, the plaintiff as at 11 June 2018 directed a notice in terms of, section 86(10) of the National Credit Act to the defendant.[2] At paragraph 17 of the Particulars of Claim it is alleged that the defendant has failed to respond to the said notice and further that the defendant has failed to surrender the motor vehicle to the plaintiff as contemplated in section 127 of the National Credit Act.

31. The National Credit Act[9] does not envisage that a consumer may claim to be over-indebted whilst at the same time retaining possession of the goods which form the subject-matter of the agreement. Such goods should be sold to reduce the defendant's indebtedness.[10]

32. As per the particulars of claim, the plaintiff alleges, that it terminated the debt review process in terms of the provisions of section 86(10), which termination the defendant had refuted in her affidavit resisting summary judgment.[11] The said notices of termination were dispatched to the chosen domicilium address of the defendant and to her debt counsellor as

required by the NCA and it therefore begs the question, as to why the defendant had not received same.

33. Consequently, this court is not persuaded that the defendant has satisfied this court that she has a bona fide defence which if proved at trial will constitute a defence to the plaintiffs claim.

ORDER:

In the result Summary Judgment is entered in favour of the Plaintiff against the Defendant for:

1. Cancellation of the Agreement as from 14 June 2019.

2. Delivery of the 2012 Nissan Juke 1.6 DIG - T Tekna with CHASSIS NUMBER: SJNFAAF 1526173693 AND ENGINE NUMBER: MR16099253A

3. Cost of suit.

4. Claim for Damages postponed sine die.

COLLIS J

JUDGE OF THE HIGH COURT OF

SOUTH AFRICA

Appearances as follows:

For Plaintiff:

Adv. C.A. Du Plessis

Attorney of the Plaintiff: Rossouws, Leslie Inc.

For Defendant:

Adv. W.P. Venter

Attorney for the Defendant: George Smith Attorneys

Date of Hearing:

14 February 2019

Date of Judgment:

18 June 2019

[1] Particulars of Claim para 14 pg. 6.

[2] Particulars of Claim para 15.

[3] 2014 (4) SA 220 (SCA)

[4] Affidavit Resisting Summary Judgment paragraph 8.1 and 8.2 p 7

[5] Particulars of Claim para 2

[6] Particulars of Claim para 3

[7] Affidavit Resisting Summary judgment paragraph 8.12 p 13

[8] Affidavit Resisting Summary judgment paragraph 8.15 p 11

[9] Act 34 of 2005

[10] Standard Bank of South Africa Ltd v Panayiotts 2009 (3) SA 363 (W) at 370

[11] Affidavit Resisting Summary Jud gment paragraph 8.23