Republic of South Africa

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

CASE NO: 26346/2010

In the matter between;

and

BINNS-WARD, J:
[1] The plaintiff has applied for summary judgment in respect of an amount allegedly due to it by the defendant in respect of a loan advanced against the security of a mortgage bond. In opposing the application the defendant has not made any allegations suggesting that the claimed amount is not due. She has opposed the granting of summary judgment solely on the grounds that the debt is the subject of debt review proceedings in terms of the National Credit Act 34 of 2005 ('the Act'). 

[3] The defendant avers, however, that an application for a debt rearrangement order was enlisted for hearing in terms of s 87 of the Act in the magistrates' court for the District of the Cape on 8 September 2010. She has annexed to her opposing affidavits a copy of the founding papers in that application. She does not, however, aver what transpired at the proceedings set down on that date. All she does state, in an affidavit deposed to on 22 February 2011, is that she will ensure that her 'new Debt Counsellor' is instructed to ensure that the application is processed without delay'.

[4] The defendant submits that because proceedings for a debt restructuring order had been instituted in the magistrates' court before the summons had been issued, the plaintiff was thereby excluded from obtaining judgment against her. In this respect she purported to rely on the authority of the recent Full Bench judgment of this court in

[10]    The following orders will issue:

1. The application for summary judgment is refused.
2. The defendant is granted leave to defend the action.
3. The costs of the summary judgment proceedings are reserved for determination by the court which determines the action.

						Judge of the High Court