Mostert and Others v Firstrand Bank t/a RMB Private Bank (198/2017) [2018] ZASCA 54; 2018 (4) SA 443 (SCA) (11 April 2018)

Mostert and Others v Firstrand Bank t/a RMB Private Bank (198/2017) [2018] ZASCA 54; 2018 (4) SA 443 (SCA) (11 April 2018)

The court held that the appellants failed to establish that the 2013 payment settled the arrears. The 2015 payments, although sufficient to settle the arrears, were made by New Port and not by or on behalf of the consumer, Mr Mostert. Section 129(3) of the National Credit Act requires that remedying default must be by the consumer or on their behalf. The payments made by New Port were not made in the name or on behalf of Mr Mostert, but rather as a result of RMB enforcing its security. Therefore, the default was not remedied in terms of section 129(3), and RMB was entitled to execute the judgment. The appeal was dismissed and costs awarded against the appellants.

Citation
[2018] ZASCA 54
Parties
Appellant: David Carl Mostert; Appellant: David Carl Mostert NO; Appellant: Lee Anne Elizabeth Mostert NO; Appellant: Sandra Margaret Mostert NO; Respondent: Firstrand Bank Limited t/a RMB Private Bank; Respondent: Sheriff of the High Court
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
11 April 2018
Case Number
198/2017
Procedural Posture
Civil Appeal / Appeal From Western Cape Division, Cape Town
Outcome
Appeal dismissed with costs on the scale of attorney and own client, including costs of two counsel, jointly and severally.
Judges
Shongwe, Van der Merwe, Rogers, Hughes, Schippers
Legal Topics
National Credit Act, Remedying Default, Special Executability, Interim Interdict, Reinstatement of Credit Agreement
Banking and Finance Civil Procedure National Credit Act Remedying Default Special Executability Interim Interdict Reinstatement of Credit Agreement

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2 Amounts and remedies 7
Sign in to unlock

Parties

David Carl Mostert

Appellant

David Carl Mostert NO

Appellant

Lee Anne Elizabeth Mostert NO

Appellant

Sandra Margaret Mostert NO

Appellant

Firstrand Bank Limited t/a RMB Private Bank

Respondent

Sheriff of the High Court

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division, Cape Town

Legal Issues

  1. 1 Whether the appellants remedied the default in the credit agreement in terms of section 129(3) of the National Credit Act.
  2. 2 Whether payments made in 2013 or 2015 settled the arrears and reinstated the loan agreement.
  3. 3 Whether payments made by a third party, not on behalf of the consumer, qualify as remedying default under section 129(3).

Ratio Decidendi

The court held that the appellants failed to establish that the 2013 payment settled the arrears. The 2015 payments, although sufficient to settle the arrears, were made by New Port and not by or on behalf of the consumer, Mr Mostert. Section 129(3) of the National Credit Act requires that remedying default must be by the consumer or on their behalf. The payments made by New Port were not made in the name or on behalf of Mr Mostert, but rather as a result of RMB enforcing its security. Therefore, the default was not remedied in terms of section 129(3), and RMB was entitled to execute the judgment. The appeal was dismissed and costs awarded against the appellants.

Court Disposition

Appeal dismissed with costs on the scale of attorney and own client, including costs of two counsel, jointly and severally.

Orders

  • The appeal is dismissed.
  • The appellants are directed to pay the costs of the appeal on the scale of attorney and own client, including the costs of two counsel, jointly and severally.