South Africa Case Law

Mokoena v Firstrand Bank Limited t/a Wesbank (A5011/18)

Mokoena v Firstrand Bank Limited t/a Wesbank (A5011/18) [2019] ZAGPJHC 142 (9 May 2019)

Court

South Gauteng High Court, Johannesburg

Case number

A5011/18

Judges

Mudau, Sutherland, Matsemela

The appellant failed to provide a full and reasonable explanation for the delay in prosecuting the appeal, with significant periods left unexplained and no supporting affidavits from the transcribers or advocate. The condonation application was without merit. The debt rearrangement order issued by the Bloemfontein magistrate’s court remains valid and binding until set aside, and the appellant’s arguments regarding jurisdiction and the identity of the debt counsellor were misleading and unsupported. The respondent was entitled to proceed under section 88(3)(b)(ii) of the National Credit Act wi…

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• National Credit Act
• Summary Judgment
• Debt Rearrangement Order
• Condonation
• Jurisdiction
• Court Order Compliance

Firstrand Bank Limited v Kona and Another (20003/2014)

Firstrand Bank Limited v Kona and Another (20003/2014) [2015] ZASCA 11; 2015 (5) SA 237 (SCA) (13 March 2015)

Court

Supreme Court of Appeal

Case number

20003/2014

Judges

Mpati, Cachalia, Mbha, Van der Merwe, Meyer

The Supreme Court of Appeal held that an application by a credit provider for the sequestration of a consumer’s estate, relying on a claim under a credit agreement, does not constitute litigation or judicial process to enforce any right or security under the credit agreement as contemplated by section 88(3) of the National Credit Act. Therefore, the existence of a debt re-arrangement order is not a bar to the grant of a sequestration order. The court found that the respondents were in default under both the credit agreement and the debt re-arrangement order, and that there was no evidence the…

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• National Credit Act
• Sequestration
• Debt Rearrangement Order
• Judicial Precedent
• Credit Provider Rights

Jili v Firstrand Bank Ltd t/a Wesbank (763/2013)

Jili v Firstrand Bank Ltd t/a Wesbank (763/2013) [2014] ZASCA 183; 2015 (3) SA 586 (SCA) (26 November 2014)

Court

Supreme Court of Appeal

Case number

763/2013

Judges

Maya, Shongwe, Leach, Willis, Mocumie

The Supreme Court of Appeal held that, in terms of section 88(3) of the National Credit Act and as confirmed by the Constitutional Court in Ferris v FirstRand Bank Ltd, a credit provider is entitled to enforce the original credit agreement without further notice once the debtor defaults on a debt re-arrangement order. The appellant's argument that the debt re-arrangement order must first be set aside or varied was rejected, as this would create unnecessary procedural hurdles and confusion. The court further held that its discretion to refuse summary judgment is limited to cases where there is…

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• National Credit Act
• Summary Judgment
• Debt Rearrangement Order
• Consumer Protection
• Enforcement Of Credit Agreements

Firstrand Bank Ltd t/a Wesbank v Jili (5200/2012)

Firstrand Bank Ltd t/a Wesbank v Jili (5200/2012) [2013] ZAKZDHC 5 (25 February 2013)

Court

Kwazulu-Natal High Court, Durban

Case number

5200/2012

Judge

Kruger

The court held that the plaintiff was entitled to summary judgment for the return of the vehicle. The defendant defaulted on the debt rearrangement order, and in terms of Section 88(3) of the National Credit Act and relevant case law, the plaintiff could enforce its rights under the credit agreement without further notice or rescission of the court order. Payment of arrears after summons did not reinstate the debt rearrangement order. The defendant failed to show a bona fide defence to the plaintiff's claim.

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• National Credit Act
• Debt Rearrangement Order
• Summary Judgment
• Default Under Credit Agreement
• Enforcement Of Security

First National Bank, a Division of First Rand Bank Ltd v Fransch (17347/2011)

First National Bank, a Division of First Rand Bank Ltd v Fransch (17347/2011) [2012] ZAGPJHC 277 (29 November 2012)

Court

South Gauteng High Court, Johannesburg

Case number

17347/2011

Judge

AC Dodson

The court held that section 88(3) of the National Credit Act allows a credit provider to commence enforcement proceedings upon default under a rearrangement order, without the need for rescission or further notice. The defendant was in default of his obligations under the rearrangement order at the time the proceedings were commenced, and the plaintiff was therefore entitled to enforce its rights. The certificate of balance provided prima facie proof of the amount owing, subject to deduction of debits for legal fees associated with withdrawn proceedings. The defendant failed to establish a ba…

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• National Credit Act
• Debt Rearrangement Order
• Foreclosure
• Notice Requirements
• Certificate Of Balance

Standard Bank of South Africa v Daya NO and Others (540/2012)

Standard Bank of South Africa v Daya NO and Others (540/2012) [2012] ZAECPEHC 33 (24 May 2012)

Court

Eastern Cape High Court, Port Elizabeth

Case number

540/2012

Judge

N Dambuza

The court found that the applicant failed to establish a clear breach of the debt re-arrangement order by the defendants. Although payments to the Payment Distribution Agent were sometimes late or less than the stipulated amount, the defendants often paid more than required, and the plaintiff accepted these payments without complaint for a significant period. The discrepancy in amounts received by the plaintiff was unexplained and may be attributable to the agent, not the defendants. The court held that these factual disputes require proper determination at trial and that summary judgment is…

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• National Credit Act
• Summary Judgment
• Debt Rearrangement Order
• Suretyship
• Mortgage Bond

Kuhl v Imperial Bank Ltd (5639/2010)

Kuhl v Imperial Bank Ltd (5639/2010) [2012] ZAFSHC 10 (9 February 2012)

Court

Free State High Court, Bloemfontein

Case number

5639/2010

Judge

L J Lekale

The High Court rescinded a default judgment after finding the applicant had a plausible explanation for the default and a prima facie defence based on debt-rearrangement compliance.

• Rescission Of Judgment
• National Credit Act
• Debt Rearrangement Order
• Default Judgment
• Compliance With Court Order
• Rescission-of-judgment