Firstrand Bank Ltd v Bernardo and Another (608/09) [2009] ZAECPEHC 19 (28 April 2009)

Firstrand Bank Ltd v Bernardo and Another (608/09) [2009] ZAECPEHC 19 (28 April 2009)

The court found that the plaintiff had complied with the statutory requirements of section 129 of the National Credit Act by sending the required notice to the defendants' chosen address by registered mail and by telefaxing a copy to their attorneys. The defendants' mere denial of receipt did not constitute non-delivery under the Act or its regulations. The defendants failed to disclose any bona fide defence to the plaintiff's claim for repayment of the home loan. Furthermore, the defendants provided no relevant information to support their request for referral to a debt counsellor under section 85. The court was therefore unable to exercise its discretion in favour of the defendants and...

Citation
[2009] ZAECPEHC 19
Parties
Plaintiff: Firstrand Bank Ltd; Defendant: Mark Bernardo; Defendant: Jacomina Madaleen Bernardo
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
28 April 2009
Case Number
608/09
Procedural Posture
Summary Judgment Application / Application for Summary Judgment Following Entry of Appearance to Defend
Outcome
Summary judgment granted in favour of the plaintiff for the full amount claimed, interest, declaration of executability, and costs.
Judges
P C Van der Byl
Legal Topics
National Credit Act Compliance, Summary Judgment, Mortgage Bond Enforcement, Delivery of Statutory Notice
Banking and Finance Civil Procedure National Credit Act Compliance Summary Judgment Mortgage Bond Enforcement Delivery of Statutory Notice

Case Brief

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Parties

Firstrand Bank Ltd

Plaintiff

Mark Bernardo

Defendant

Jacomina Madaleen Bernardo

Defendant

Procedural Posture

Summary Judgment Application / Application for Summary Judgment Following Entry of Appearance to Defend

Legal Issues

  1. 1 Whether the plaintiff complied with sections 129 and 130 of the National Credit Act prior to instituting action.
  2. 2 Whether the defendants have disclosed a bona fide defence to the plaintiff's claim for repayment of the home loan.
  3. 3 Whether the matter should be referred to a debt counsellor under section 85 of the National Credit Act.

Ratio Decidendi

The court found that the plaintiff had complied with the statutory requirements of section 129 of the National Credit Act by sending the required notice to the defendants' chosen address by registered mail and by telefaxing a copy to their attorneys. The defendants' mere denial of receipt did not constitute non-delivery under the Act or its regulations. The defendants failed to disclose any bona fide defence to the plaintiff's claim for repayment of the home loan. Furthermore, the defendants provided no relevant information to support their request for referral to a debt counsellor under section 85. The court was therefore unable to exercise its discretion in favour of the defendants and...

Court Disposition

Summary judgment granted in favour of the plaintiff for the full amount claimed, interest, declaration of executability, and costs.

Orders

  • The defendants are ordered to pay the amount of R639,821.29 to the plaintiff.
  • The defendants are ordered to pay interest on the amount at 14.8% per annum from 1 February 2009 to 9 February 2009, and at 13.8% per annum from 10 February 2009 to date of payment, calculated and compounded monthly.