Question posted in the General Law category relating to Gauteng
(CLAIM IN RESPECT OF DEBT OR LIQUIDATED DEMAND) IN THE MAGISTRATE'S COURT FOR THE DISTRICT OF ____________HELD AT ________________________
In the matter between:STANDARD BANK OF SOUTH AFRICA LIMITED PLAINTIFFAndPATIENCE CHIHOMVU CHIHOMVU DEFENDANT To the sheriff or his deputy: ___________________ INFORM PATIENCE CHIHOMVU CHIHOMVU an adult with residing address situated at 5 PIET RETIEF BLVD SE 7 1911 VANDERBIJLPARK GP, whose full and further particulars are unknown to the Plaintiff (hereinafter called "the Defendant"), that STANDARD BANK OF SOUTH AFRICA LIMITED (Reg. No.1962/000738/06), a company duly registered and incorporated according to the laws of the Republic of South Africa, which carries on business and is registered as a Bank in terms of the Banks Act No. 94 of 1990 (as amended) and has its registered offices at 9thFloor, Standard Bank Centre, 5 Simmonds Street, Johannesburg, 2001 (hereinafter called "the Plaintiff"), hereby institutes action against the Defendant, in which action the Plaintiff claims the relief and, on the grounds, set out in the Particulars of Claim annexed hereto as Annexure “A”.INFORM the Defendant further that if the Defendant disputes the claim and wishes to defend the action, the Defendant shall –
within ten (10) days of the service upon Defendant of this summons file with the Clerk of this Court, notice of the Defendant’s intention to defend and serve a copy thereof on the Attorneys of the Plaintiff, which notice shall give an address (not being a post office box or poste restante) referred to in rule 13(3) for the service upon the Defendant of all notices and documents in the action;INFORM the Defendant further that if the Defendant fails to file and serve a notice as aforesaid, judgment as claimed may be given against the Defendant without further notice to the Defendant, or if, having filed and served such notices, the Defendant fails to plead, except, make application to strike out or counter-claim, judgment may be given against the Defendant. Should judgment be granted against the Defendant, the Plaintiff will notify the relevant credit bureau and such notification shall have an adverse effect on the Defendant’s credit worthiness.DATED at PRETORIA on this the day of . CLERK OF THE COURT_________________________________LGR INCORPORATEDATTORNEY FOR PLAINTIFFTEL: 0861 547 462 / FAX: 087 806 7567E-mail defended: ***BLOCKED-EMAIL-ADDRESS***Email Settlement/Arrangement: ***BLOCKED-EMAIL-ADDRESS***REFERENCE: J.G. ADENDORFF / CB102164 PARTICULARS OF CLAIM - ANNEXURE "A" The parties are as cited on the first page of the Summons.JURISDICTION: The above Honourable Court has jurisdiction to adjudicate the matter by virtue of the fact that the Defendant is domiciled and/or resident and/or employed within the Honourable Court’s area of jurisdiction.AGREEMENT AND TERMS THEREOF: The Defendant applied to the Plaintiff, to open and operate an Credit Card facility (hereafter referred to as the account), subject to the Plaintiff’s standard terms and conditions (referred to below).The relevant and explicit, alternatively tacit, alternatively implied terms of the Agreement were inter alia that-The Defendant undertook to pay the Plaintiff any amount paid or disbursed by the Plaintiff to the supplier of any goods or services purchased by the Defendant or for any amount paid by the Plaintiff by way of cash advances through the use of the Credit Card referred to above;Any amounts due by the Defendant to the Plaintiff in terms of Paragraph 8.1 would be reflected on a monthly statement rendered by the Plaintiff to the Defendant and the Defendant would be obliged to pay the Plaintiff at its Card Division in Johannesburg the minimum stipulated amount reflected on such statement;The Defendant undertook to pay the Plaintiff interest at a variable rate on any debit balance on the Credit Card rate not exceeding the maximum rate permissible in terms of applicable legislation (regulated by the NCA as of 1 June 2007 and by the Usury Act no. 73 of 1978 prior thereto), which interest would run from the due date as set out on the statement of the said Credit Card;In the event of the Defendant breaching the terms of conditions of issue of the loan, the full amount of the Defendant's indebtedness to the Plaintiff would immediately become due and payable to the Plaintiff;In the event of the Plaintiff having to instruct its attorneys in order to exercise its rights arising out of any breach of the Defendant's obligations, the Defendant would be liable for legal fees and charges on a party and party scale, inclusive of tracing charges.The Plaintiff would be entitled to debit the Defendant’s account with all agreed charges in accordance with the generally accepted banking practice which include ledger and service fees.A certificate signed by any Director or Manager of the Plaintiff (whose appointment need not be proved) as to the indebtedness of the Defendant shall be prima facie proof of the correctness thereof and the facts contained therein. The aforesaid indebtedness has been so certified by a Manager of the Plaintiff.The Plaintiff would be entitled to calculate interest daily on the outstanding balance, subject to any maximum rate that may legally apply and compound such interest monthly.Should any Magistrate Court have concurrent jurisdiction with the High Court over any dispute that may arise out of the agreement, the parties agree to the jurisdiction of the Magistrate Court, to resolve the dispute and/or enforce the agreement. (As referred to in the Standard Terms and Conditions attached)BREACH The Defendant breached the agreement between the parties, in that he/she has failed and/or neglected and/or refused to make timeous payments as due to the Plaintiff for the herein stipulated account and/or has failed to service the minimum required payments in terms of the exposure on the Defendant’s Credit Card, alternatively conducted the account in a manner which did not adhere to the Terms and Conditions of the agreement. The Honourable Court is referred to the payment and breach terms as contained in the Standard Terms and Conditions attached.Additional to the abovementioned, the Attorney of the Plaintiff also attempted bona fide settlement and/or payment re-arrangement proposals and/or communicated payment reminders via telephonic attendances, SMSs and/or email correspondence. Proof of the aforementioned telephonic conversations in the form of call recordings and/or SMSs and/or email correspondence can be produced upon request and may be used at trial and/or judgment stage.Notwithstanding Notice and/or Demand as well as Telephonic attendances, SMSs and/or email correspondence, the Defendant failed and/or neglected to respond to the demand, alternatively has responded to the demand by rejecting the Plaintiff’s proposals.CLAIM The Defendant duly utilized the said Account, and in consequence became indebted to the Plaintiff in sum of R41352.7together with interest at the rate of 22.25% per annum, to date of final payment, which amount is now due, owing and payable as a consequence of the Defendant failing to make payment of the minimum instalment required. The aforesaid indebtedness has been so certified by a Manager of the Plaintiff.
WHEREFORE Plaintiff prays for judgment against the Defendant for:(a) Payment of the sum of R41352.7(b) Interest thereon at the rate of 22.25%, per annum, calculated daily and compounded monthly in arrears. In the alternative hereto, the Plaintiff prays for mora interest at 7.00% calculated daily and compounded monthly in arrears, to date of final payment;(c) Costs of suit on Attorney and Client scale should the matter be defended, alternatively on Party and Party scale;(d) Further and/or alternative relief. DATED AT PRETORIA ON THIS day of
_____________________________________LGR INCORPORATED ATTORNEY FOR PLAINTIFF TEL: 0861 547 462 / FAX: 087 806 7567i received this email from standard bank. Please assist. I am currently out of the country.