Firstrand Bank Limited v Slabbert (5003/2016) [2017] ZAFSHC 12 (16 February 2017)
- Citation
- [2017] ZAFSHC 12
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- C Reinders
- Case number
- 5003/2016
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- C Reinders
- Case number
- 5003/2016
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the defendant disclosed sufficient facts which, if proved, could constitute a defence to the plaintiff's claim. The defendant explained the circumstances leading to the arrears and provided proof of payment after receiving notice of default. The court was not satisfied that the plaintiff's case was unanswerable at this stage, particularly in light of the payments made and the defendant's assertion of non-compliance with the National Credit Act. The court exercised its discretion in favour of the defendant, dismissing the application for summary judgment and granting leave to defend.
Court disposition
Application for summary judgment dismissed; defendant granted leave to defend; costs to be in the cause.
Orders
- The application for summary judgment is dismissed.
- Leave is granted to the defendant to defend the action.
- Costs are to be in the cause.
02
Material facts
Parties
Firstrand Bank Limited
Plaintiff Counsel: Adv. J. ElsAnnette Slabbert
Defendant Counsel: Adv. L. CollinsAmounts and remedies
- Claimed Amount: ZAR 443,883.72
- Arrears at Time of Notice: ZAR 25,948.18
- Payment Made by Defendant: ZAR 26,000
- Payment Via National Payment Distribution Agency: ZAR 3,985.22
03
Procedural history
Posture
Summary Judgment Application / Application for Summary Judgment
04
Questions and positions
Legal issues
- 01
Whether the defendant has a bona fide defence to the plaintiff's claim for payment under the home loan agreements.
- 02
Whether the plaintiff complied with the requirements of section 129 of the National Credit Act prior to instituting proceedings.
- 03
Whether payments made by the defendant after summons affect the quantum of the claim.
Party arguments
- Applicant
- Firstrand Bank Limited argued that four written home loan agreements were concluded with the defendant, secured by mortgage bonds, and that the defendant breached the agreements by failing to pay monthly instalments. Firstrand asserted that the amounts became due and payable and sought summary judgment for the outstanding amount and an order declaring the property executable. Firstrand maintained that the defendant's opposition did not disclose a bona fide defence and that the payments made after summons did not extinguish the arrears at the time of issue.
- Respondent
- Annette Slabbert contended that she has a bona fide defence, explaining that the arrears resulted from Firstrand cancelling the debit order on her spouse's account without her knowledge. She stated that she paid R26,000 after receiving notice of default and initiated debt review proceedings. She further argued that Firstrand did not comply with sections 129(1)(a), 129(2), 129(3), and 129(4) of the National Credit Act, and that payments made after summons should be considered in determining the quantum of the claim.
05
Court’s reasoning
Legal principles
- 01
Rule 32 of the Uniform Rules of Court
In summary judgment proceedings, the defendant need only disclose facts which, if proved at trial, would constitute a defence to the claim.
- 02
National Credit Act 34 of 2005, section 129
A credit provider must comply with section 129 of the National Credit Act before instituting legal proceedings for enforcement of a credit agreement.
- 03
Firstrand Bank Ltd v Slabbert (this case)
Payments made after summons may affect the quantum of the claim and the defendant's liability.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the defendant disclosed sufficient facts which, if proved, could constitute a defence to the plaintiff's claim. The defendant explained the circumstances leading to the arrears and provided proof of payment after receiving notice of default. The court was not satisfied that the plaintiff's case was unanswerable at this stage, particularly in light of the payments made and the defendant's assertion of non-compliance with the National Credit Act. The court exercised its discretion in favour of the defendant, dismissing the application for summary judgment and granting leave to defend.
Obiter and limits
- The court expressed concerns about whether the defendant's defence is good in law but emphasised that, at the summary judgment stage, the correctness of the defence must be assumed.
- The timing of payments relative to the issue of summons may be relevant in determining the quantum of the claim, but does not necessarily extinguish the plaintiff's cause of action.
Court disposition
Application for summary judgment dismissed; defendant granted leave to defend; costs to be in the cause.
- The application for summary judgment is dismissed.
- Leave is granted to the defendant to defend the action.
- Costs are to be in the cause.
Source and reliance status
Free State High Court, Bloemfontein
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Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other Judges: YES/NO
Circulate to Magistrates: YES/NO
Case No: 5003/2016
In the application between:
FIRSTRAND
BANK LIMITED
Plaintiff
and
ANNETTE
SLABBERT
Defendant
JUDGMENT BY: C REINDERS, J
HEARD ON: 9 FEBRUARY 2017
DELIVERED ON: 16 FEBRUARY 2017
[1] The Plaintiff, Firstrand Bank Limited (“Firstrand”) issued summons against the Defendant, Mrs Annette Slabbert (“Mrs
Slabbert”) on 20 October 2016 for inter alia payment in the amount of R 443 883,72 and an order declaring an immovable property known as Erf [1...], Bloemfontein executable. After a notice of intention to defend was filed by Mrs Slabbert, Firstrand moved for summary judgment against her.
[2] It is common cause that four written home loan agreements were concluded between Firstrand and Mrs Slabbert on various dates ranging from 2004 to 2012 pursuant thereto, four mortgage bonds were registered in favour of Firstrand. According to Firstrand the terms and conditions of these loan agreements were breached by the failure of Mrs Slabbert to pay the monthly instalment due, as a result whereof the amounts became due and payable.
[3] Mrs Slabbert opposes the application on several grounds, averring that she has a bona fide defence against Firstrand. She explains the reason for falling behind with the monthly instalment and states that she applied for business rescue. The instalment on the property had always been paid for from her spouse’s account. Firstrand cancelled the debit order or Mr Slabberts account, resulting in her falling in arrears unbeknown to her.
[4] On 3 October 2016 Mrs Slabbert received an email from Firstrand, indicating that the last payment received was on 11 June 2016 and the account was in arrears in the amount of R 25 948,18. The following day she receive a notice in terms of sec 129(1) of the National Credit Act 34 of 2005 (the “NCA”) indicating her default in respect of in the said amount.
[5] Mrs Slabbert paid an amount of R 26 000,00 on 28 October 2016 and annexes proof of such payment. She avers that papers were being processed to have the plaintiff included in the debt review. Her affidavit was attested to on 6 December 2016. She avers that some payment has also been made through the National Payment Distribution Agency to effect payment to various creditors and an amount of R 3 985,22 was as paid to Firstrand.
[6] The defences further advanced by Mrs Slabbert are inter alia in respect of compliance (or non-compliance) by Firstrand with sections 129(1)(a), 129(2), 129(3) and 129(4) of the NCA. I do have my concerns whether the defendant has a bona fide defence which is good in law. The notice of intention to defend was filed on 27 October 2016 and payment made two days thereafter. The summons was issued and quantified before these payments were made.
[7] For purposes hereof the Defendant does not have to proof her defence and I have to assume the correctness thereof at this stage.
Assuming the correctness thereof, the claimed amount cannot be correct. By averring the payment of the R 26 000,00 Mrs Slabbert’s averment tantamounts to payment of the arrears albeit late. Without detracting from my concerns stated above regarding the defence being good in law, I am not convinced that Firstrand has an unanswerable case at this stage. The defendant has supplied me with sufficient information to convince me to exercise my discretion in her favour.
[8] Accordingly the following order will issue:
1. The application for summary judgment is dismissed.
2. Leave is granted to the Defendant to defend the action.
3. Costs is to be in the cause.
____
C. REINDERS, J
On behalf of the Plaintiff: Adv. J. Els
Instructed by:
Rossouws Attorneys
BLOEMFONTEIN
On behalf of the Defendant: Adv. L. Collins
Jordaan Rijkheer & Partners Attorneys
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