IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case Number: 20495/10

In the matte: between:

(formerly known as First National Bank of Southern Africa Limited;

and

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).

[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:
a)	
b)	Personal loan     R12 000.00
Cheque account R6 000.00

[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

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

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

c)	
d)	
e)	
Total:                       R2 600
[11) I will for the purpose of a determination of this matte* consider these expenses. The respondent further indicated that an estate agency had recently valued the immoveable property at R390 000. Mr Fourie submitted that:

[12] I do not agree that the respondent should be expected to sell her household furniture because i: appears to be household necessities, judging from the value placed on it. I have indicated above that the respondent could not hold on to the property in order to pay off her debts and that she nas not satisfactorily explained he' delay in seeking the assistance o~* the second debt counsellor I arr, of the view that the respondent has failed to prove on a balance of probabilities that she is over indebted I will consequently not exercise my discretion in her favour

ORDER

[13] I, for the reasons stated above, make the following order
(a) The application for summary judgment is granted in terms of "X" hereto.
Baartman, J