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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH)

Case No: 2425/2014

In the matter between:                                                                          

FIRSTRAND BANK LIMITED t/a WESBANK                                                 Plaintiff/Applicant

And

STEPHANUS JOHANNES DELPORT                                                  Defendant/Respondent

AND

Case No: 2427/2014

In the matter between:                                                                          

FIRSTRAND BANK LIMITED t/a WESBANK                                                 Plaintiff/Applicant

And

STEPHANUS JOHANNES DELPORT                                                  Defendant/Respondent

Coram:                       Chetty J

Heard:                        23 September 2014

Delivered:                  30 September 2014

Summary:                  Practice – Summary Judgment – Spurious defence – Application granted

JUDGMENT

CHETTY J: -

[1] Given the commonality of the defence in both applications a single judgment, dispositive of the crisp issue raised, will suffice. Under the rubric, “Particulars of Claim excipiable”, the purported defence is formulated thus: -

“9.          The Plaintiff alleges at paragraph 9 of its particulars of claim that the credit agreement in question was referred to a debt counsellor in terms of Section 86 of the National Credit Act.

10.         At paragraph 10 the Plaintiff contends that it complied with the provisions of Section 86(10) of the National Credit Act by addressing a letter to myself purportedly terminating the debt review application.

11.         The Plaintiff fails to allege when the agreement was referred to a debt counsellor and further fails to allege that a period of sixty days elapsed since the date of the referral of the matter to the debt counsellor.”

[2] It will be gleaned from the aforegoing that the alleged deficiencies in the plaintiff’s particulars, which, it is contended, render them excipiable are twofold, firstly, the omission to specify the date the agreement was referred to a debt counsellor and, secondly, the omission to record the elapse of the sixty day period. It is not in dispute that the defendant referred the credit agreement to a debt counsellor in terms of s 86 of the National Credit Act (NCA)[1]. It is furthermore common cause that by registered letter dated 2 July 2014, the defendant was, inter alia, appraised that: -

“. . . We refer to the Application for Debt Review in respect of the abovementioned account and confirm that 60 (sixty) business days have elapsed since the date of the said Application for Debt Review. A Debt Review Arrangement Order has not been granted in respect of the abovementioned credit agreement, and accordingly we hereby notify you of the termination of the Debt Review Application.”

[3] The letter was annexed to the summons as annexure “C” and its terms were explicitly incorporated therein. Read conjointly with the particulars of claim, it complied fully with the prescripts of s 86(10) of the NCA. Suffice it to say that the opposition raised is spurious.

[4] In the result the following orders will issue in each of the applications:-

In Case No: 2425/2014

There will be an order for Summary Judgment against the respondent, as follows:

a)    Return of the vehicle, a certain 2001 MITSUBISHI PAJERO 3200 DI-D 3DR motor vehicle, Engine Number 4M41DN2162, Chassis Number JMYMNV68W1J000493 and Vehicle Registration Number […………].

b)   Costs of suit.

In Case No: 2427/2014

There will be an order for Summary Judgment granted against the respondent, as follows:

a)    Return of the vehicle a certain 2008 VOLVO CX90 D5 A/T motor vehicle, Engine Number D5244T4513369, Chassis Number YV1CM714681420890.

b)   Costs of suit.

_________________________

D.CHETTY

JUDGE OF THE HIGH COURT  

Obo the Applicant:                  Adv G. Gajjar

Instructed by                           Liston Brewis & Company, 35 Albany Road, Port Elizabeth

                                                    Ref: A S Brewis

                                                    Tel: (041) 585 3363

 

Obo the Respondent:             Adv K. Williams

Instructed by                           Pieterse Cary Finliason Inc, 7 Bird Street, Central, Port Elizabeth

                                                    Ref: J Finliason

                                                    Tel: (041) 585 0980

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