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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case Number: 20495/10

In the matte: between:

FirstRand Bank limited

(formerly known as First National

Bank of Southern Africa Limited …....................................................Applicant

and

Pamela Ann Field …................................................................Respondent

JUDGMENT DELIVED ON WEDNESDAY 16 FEBRUARY 2011

Baartman. J

[1] This is an application for summary judgment. The respondent has defaulted on her mortgage bond repayments due in terms of an agreement the parties entered into on 4 December' 2006 and which agreement is subject to the provisions of the National Credit Act 34 of 2005 {the NCA).

[2] On 29 November 2007, the applicant delivered a notice in terms of section 129(1) of the NCA to the respondent, informing her that she was R14 129.90 in arrears with he- agreed repayments and advising of her rights in terms of the NCA to approach a debt counsellor. On 19 February 2008. the respondent applied for debt review in terms of section 86 of the NCA. On 24 October 2008. the debt counsellor informed the applicant that the respondent was over-indebted and proposed a debt re-arrangement. The proposed re-arrangement was not acceptable to the applicant. Similarly, the applicant found a second proposal, made on 27 July 2009. unacceptable. On 22 April 2010. the debt counsellor notified the applicant tnat the respondent's application for debt counselling had been withdrawn.

[3] The respondent alieged that on 19 February 200B she approached a debt counsellor, Mr Theunissen. However, on 28 June 2010, she approached a second debt counsellor. Mr Ashley Carstens. because Mr Theunisser. had by then made no progress with her matter. Advocate McDonald, who appeared for the respondent, couid not satisfactorily explain the 2-yea^r delay in approaching the second debt-counsellor.

[4] It was common cause tnat 10 business days had lapsed after the delivery of the section 85(10) notice prior to the institution of the debt recovery process. It follows that the debt review was competently terminated (See the as yet unreported decision o^f Westbank, a division of Firstrand Bank Limited and Nathalie Agatha Martin, Case number 13564/2010. judgment delivered by Bmns-Ward J on 13 August 2010.)

[5] Advocate McDonald suomitted that the respondent's was not a case of reckless lending of the bank The applicant is the respondents only creditor in the following amounts:

1. Credit card R40 000 00

2. Personal loan R12 000.00

Cheque account R6 000.00

(d) Bond Account R511 587.03

[6] In her opposition to the application for summary judgment, the respondent alleged that she was over-indebted and had requested the court to exercise its discretion in her favour and declare her to be over-indebted and pursuant to that finding make ar order contemplated in section 65 of the NCA

[7] It is so that a party who raises a defence of over-indebtedness must plead and prove the defence on a balance of probabilities. In an attempt to meet the burden of proof, tne respondent described her financial position as follows:

(a) Income: R5 040 (being maintenance of R2 540 and rental income R2 500)

[8] The rental income is derived from the immoveable property that forms tne subject of this application. The applicant does not live at the premises; instead she resides at her business address Advocate Foune wno apDeared for the applicant, suomitted that the provisions of the NCA did not envisage a debtor claiming to be over-maebtec while holding on to the property tnat forms the subject of the credit agreement. ! agree. (See Standard Bank of South Africa v Panayiotts [2009] JOL 23095(W))

[9] The respondent said that since mid 2009. she had been involved in a new business which she described as follows

,,/ obtained employment as a child and baby minder. The business is in fact a partnership in which a Mrs Opperman Mr Norman William Bryant and I are partners.. ..At present the partnership is unable to pay me a salary, but it has provided my daughter and me with a room to live on the premises..."

[10] In addition, the respondent had neglected to set out her monthly expenses. Advocate Fourie submitted that the omitted detail is "a crucial factor" to be considered when a court determines whether a debtor is over-indebted. I agree. The respondent was obliged to have put that evidence before the court; it is within her knowledge However, she did fiie an affidavit attested to by Ashley Carstens, a debt counsellor, from which it appears that the respondent had the following expenses:

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