Firstrand Bank Limited v Metiner and Another (14315/2015) [2017] ZAGPJHC 165 (31 May 2017)

Firstrand Bank Limited v Metiner and Another (14315/2015) [2017] ZAGPJHC 165 (31 May 2017)

The applicant complied with the requirements of section 129 of the National Credit Act by dispatching notices by registered mail to the respondents' domicilium addresses and providing proof of delivery and notification. The respondents admitted the arrears and outstanding debt but failed to provide any reasonable explanation for non-payment or for not collecting the registered items. Mere denial of receipt, without challenging the process of delivery or providing evidence of reasonable conduct, is insufficient to defeat the applicant's claim. The applicant is entitled to judgment for the outstanding amount and to have the mortgaged properties declared specially executable.

Citation
[2017] ZAGPJHC 165
Parties
Applicant: Firstrand Bank Limited; Respondent: Metiner, Eliran; Respondent: Unit 112 Shingara Sands CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
31 May 2017
Case Number
14315/2015
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted. Judgment for the applicant for the outstanding debt and interest; mortgaged properties declared specially executable; costs awarded against respondents.
Judges
Daniels
Legal Topics
Credit Agreement Enforcement, Section 129 Notice, Mortgage Bond Execution, Suretyship Liability
Banking and Finance Civil Procedure Credit Agreement Enforcement Section 129 Notice Mortgage Bond Execution Suretyship Liability

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Parties

Firstrand Bank Limited

Applicant

Metiner, Eliran

Respondent

Unit 112 Shingara Sands CC

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant complied with the requirements of section 129 of the National Credit Act before commencing litigation.
  2. 2 Whether the respondents are liable for the outstanding debt under the credit agreement and mortgage bond.
  3. 3 Whether the mortgaged properties should be declared specially executable.

Ratio Decidendi

The applicant complied with the requirements of section 129 of the National Credit Act by dispatching notices by registered mail to the respondents' domicilium addresses and providing proof of delivery and notification. The respondents admitted the arrears and outstanding debt but failed to provide any reasonable explanation for non-payment or for not collecting the registered items. Mere denial of receipt, without challenging the process of delivery or providing evidence of reasonable conduct, is insufficient to defeat the applicant's claim. The applicant is entitled to judgment for the outstanding amount and to have the mortgaged properties declared specially executable.

Court Disposition

Application granted. Judgment for the applicant for the outstanding debt and interest; mortgaged properties declared specially executable; costs awarded against respondents.

Orders

  • Judgment is granted in favour of the applicant against the first and second respondents jointly and severally for the sum of R1,744,987.59, together with interest and costs.
  • The eight immovable properties situated in Industria township, in the scheme known as Midas Medical Centre, are declared specially executable.