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IN THE HIGH COURT OF SOUTH AFRICA

[TRANSVAAL PROVINCIAL DIVISION]

CASE NO: 35313/2008

DATE: 21 OCTOBER 2008

In the matter between:

ABSA BANK LIMITED PLAINTIFF

and

JOHN OSWALD WHELPTON FIRST DEFENDANT

SUSANNA WHELPTON SECOND DEFENDANT

JUDGMENT

PHATUDI [AJ]

[I] Absa bank Limited, (the Plaintiff) instituted an action against the Defendants, who are sued jointly and severally (by virtue of their marriage in community of property) for payment in an amount of R2 109 741.45, that was lent and advanced at the instance and request of the Defendants.

[2] As security for the Defendants' obligations towards the Plaintiff a covering bond was passed in favour of the Plaintiff over the property described as "Erf 1829 Fairie Glen Extention 7 Township, Registration Division JR. Province of Gauteng".

[3] The Defendant filed their Notice of Intention to Defend the matter. Subsequent thereto, the Plaintiff applied for summary Judgment. On the 16 September 2008, before Murphy J, the matter was postponed to the 8 October 2008.

[4] Mr De Villiers, Counsel for the Plaintiff, submitted that the matter stands unopposed on the basis that no opposing affidavit was filled on time. He further submitted that the Defendants failed to apply for condonation for late filling of their opposing affidavit. He lastly-submitted that the Defendants indicated that they intend to apply for debt review as contemplated in terms of the provisions of the National Credit Act 35 of 2005. He referred me to Section 86 of the Act that provides:

"86(1)...

(2) An application in terms of this section may not be made in respect of. and does not apply to. a particular credit agreement if. at the time of that application, the credit provider under that credit agreement has proceeded to take the steps contemplated in Section 129 to enforce that agreement. "

[5] He finally submitted that the Plaintiff has proceeded to take the steps as contemplated in terms of the provisions of the National Credit Act and further thereto that the said debt remained unsettled and prayed for judgment as set out in the application for summary judgment with costs on Attorney and client scale.

[6] In rebuttal thereto, Mr Vos, counsel for the Defendants categorically placed on record that the matter was postponed with the Defendants' good intention of reaching a settlement with the Plaintiff which settlement never dawned. He submitted that the opposing affidavit was served on the Plaintiff on the 6 October 2008. He however, did not comprehend as to how the original thereof (not even a copy) was not on court's file. He. in any event apologised for the inconvenience of the non filing in courts file that may have caused on me.

[7] Mr Vos partly placed the blame on the Plaintiff by not having added the opposing affidavit to the paginated bundle. He emphasised the filing rule that the opposing affidavit must be filed noon before the date of hearing. He indicated that the defendants have complied with the rule in that the opposing affidavit was served and "filed" on the 6 October 2008.

[8] He, Mr Vos, submitted that the Plaintiffs summons is excepiable due to the missing pages of the agreement the Plaintiff is relying on. He indicated that the Application is thus defective and by that reason alone, the application stands to be dismissed.

[9] Mr Vos lastly submitted that the Plaintiff proceeded with the application despite knowledge from the opposing affidavit that pages 2 and 3 of the loan agreement the Plaintiff is relying on have not been attached to the summons, that renders them defective and excepiable.

[10] He finally submitted that the Plaintiffs application for summary judgment be dismissed with costs and such costs be on attorney and client scale, due to the Plaintiff s conduct of proceeding with the application despite his knowledge of summons being defective.

[11] It is clear form the evidence tendered that the parties agreed to postpone the matter with the view to reach settlement. I find from the opposing affidavit that negotiations were entered into by the Defendants with the view to revisit the repayment plan as envisaged in terms of para 5.2 of the Plaintiffs* notice in terms of section 129 of the National Credit Act as it appears bolded on page 69 of the paginated bundle that read:

"5.2 Important: Please take note that it is possible in most instances to enter into a repayment plan directly with Absa Bank Limited and you may contact our office to discuss such a plan. "

[12] This remained unchallenged even by counsel for the Plaintiff. The Defendants, in their opposing affidavit, state clearly that; '7 did not utilize the provisions of National Credit Act' on the invitation by the Plaintiff as set out in clause 5.2 of the letter.

[13] The Plaintiffs failure to enter into those negotiations in respect of debt rescheduling as per clause 5.2 quoted above muddled the Defendant's in utilising the proper procedures as set out in the National Credit Act.

[14] In the premises, I am of the view that the Plaintiff jumped the gun by proceeding with this application despite the knowledge of the Defendant's intention of concluding a repayment plan which would result in debt reschedule. I, as a result thereof, find it appropriate to afford the Defendants with the opportunity of approaching the debt counsellor with a view to reschedule his debts.

[15] I, therefore, make the following order;

[15.1] Summary Judgment application be and is hereby postponed sine die.

[15.2] The Defendant to approach the debt counsellor as envisaged in terms of the National Credit Act 35 of 2005;

[15.3] The Plaintiff is ordered to pay the Defendants' wasted costs including those occasioned by postponement on the 16 September 2008 on Attorney and client scale.

AML PHATUDI
Acting Judge of the High Court

Date of hearing: 8 OCTOBER 2008

For the Plaintiff: ADV DE VILLIERS

Instructed by Plaintiff: TIM DU TIOT AND CO INC

For the Defendant: ADV VOS

Instructed by Defendant: LOMBARDS ATTORNEYS

Date of Judgement: 21 OCTOBER 2008

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