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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION,

JOHANNESBURG

CASE NO: 25248/2017

In the matter between:

ABSA BANK LIMITED                                                                                               Plaintiff

And

GLADYS KUNENE                                                                                                Defendant

 

J U D G M E N T

 

MODIBA J

INTRODUCTION

[1] This is an application for summary judgment for the payment of R 441 523.01 and other ancillary relief. The applicant relies on a mortgage loan, the terms of which it contends that the defendant breached.

[2] The mortgage loan is secured by way of mortgage bond.

[3] The defendant opposes the application and has filed an affidavit, setting out her basis for opposition. To succeed in her opposition, she is required to set out a bona fide defence which, if proved at the trial will result in the dismissal of the applicant’s action. Regrettably, she has failed to do so. Therefore summary judgment stands to be granted as claimed by the applicant.

 

THE AFFIDAVIT RESISTING SUMMARY JUDGMENT

[4] In her affidavit resisting summary judgment, she contends for the dismissal of the application of the basis that she:

[4.1] approached a debt counselling service provider in order to have herself declared over indebted. However, her matter was not attended to.

[4.2] she was of the view that she was under debt review, hence, she has been making monthly payments of R 2000.00 towards the mortgage loan, initially to a debt counselling entity but subsequently directly to the applicant, when she realised that the entity was not remitting her payments to the applicant.

[5] The respondent is obliged to repay the loan in monthly instalments of approximately R4 224.23. The amount of R2 000.00 that she is currently paying to the applicant is less than 50% of her monthly obligations.

[6] It is not surprising that according to the certificate of balance filed she is currently in arrears in the amount of R86 198.66 or 19.40 months in arrears.  Notwithstanding the respondent’s version that she approached a debt counsellor during 2015, there was never a debt review application made to court. The applicant never accepted the terms of any debt review proposal, presented on behalf of the respondent. The applicant terminated the debt review process by delivering, to all interested parties, a notice in terms of Section 86 (10) dated 13 ,October 2016, which marked the end of any debt review procedures initiated by the defendant.

[7] The applicant has complied with all the applicable statutory and contractual requirements including a notice in terms of Section 129 of the National Credit Act 34 of 2005. It is under these circumstances, contractually entitled to enforce the agreement. The respondent has not set out a bona fide defence. She has not placed any facts before this court to urge the court to exercise its discretion in her favour, not to declare the immovable property over with the mortgage bond securing the loan specially executable.[1] Rather, on the facts before the court, it is unlikely that the defendant will have means to liquidate the arrears within a reasonable time or at all. The interest rate applicable on the loan is 10.5%. Therefore, the respondent’s payments of R 2000.00 per month do not reduce the loan. Rather, the balance will continue to grow. The jeopardy to the applicant hardly requires deep thought to contemplate. It is apparent. The outstanding balance is R 441 526.01. The amount owing to the municipality in respect of rates and taxes in August 2019 was R5 333.51. The market value of the property is R350 000.00, while the municipal value is R348 000.00. The applicant will therefore never be able to recover the full amount owed, instead, it the amount owed will continue to escalate. In the circumstances, a reserve price of R350 00.00 is appropriate.

[8] Therefore, summary judgment is granted in terms of the draft order handed up by counsel for the applicant, incorporating the said reserve price.  

 

 

            __________________________

MADAM JUSTICE L T MODIBA

JUDGE OF THE HIGH COURT,

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

 

APPEARENCES

Counsel for plaintiff:                                            Advocate S McTurk

Attorney for plaintiff:                                           Tim Du Toit & Co. Inc

Counsel for defendant:                                       Advocate T Loabile-Rantao

Attorney for defendant:                                       Temlett Attorneys

Date of hearing:                                                  22 October 2019

Date of judgment:                                               30 January 2020

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