IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
	
	Case No:	6246/2008	
In the matter between:			
GARY IVAN HEUNIS	First Applicant	
MAGRIETA KRISTINA HEUNIS	Second Applicant	
and			
ABSA BANK LIMITED	Respondent	
JUDGMENT DELIVERED ON 6 DECEMBER 2010

ALLIE, J

[1] This is an application to rescind and set aside the summary judgment, the order declaring the immovable property of applicants to be executable and the order that applicants pay the costs of the action instituted against them by the respondent.

[2] Applicants further seek leave to file further pleadings and a stay of the execution of the Writ of Execution against the Immovable Property as well as the costs of this application in the event of respondent opposing it.
[3] The applicants admit that they instructed their attorneys to file a notice of intention to defend the summons. They admit that they failed to pay 3 month's instalments on the mortgage bond.

[4] The applicants deny that they received a notice in terms of Section 129 of the National Credit Act 34 of 2005 prior to respondent instituting action against them.

[5] It appears that respondent first sent the Section 129 notices to an incorrect address, namely 16 Dorp Street Stellenbosch which is neither the domicilium nor the residential address of the applicants. The notices were subsequently sent to the address of the immovable property which was mortgaged to respondent but due to inefficient mail delivery, applicants allegedly did not receive it.

[6] The application for summary judgment was served on the service address of applicants' attorneys but the attorneys at the service address sent it by facsimile to the incorrect facsimile number ostensibly to the applicants' attorneys. The application for summary judgment was served 2 days after applicants' attorneys sent respondent's attorneys a letter stating that they intend to oppose any summary judgment that respondent should bring.

[7] Applicants' attorneys discovered that the summary judgment application had been brought only after the order for summary judgment had been sought and obtained. Respondent refused to consent to the rescission of the summary judgment.

[9] The applicants allege further that the particulars of claim are excipiable because the respondent did not allege that they sent applicants a notice of cancellation prior to claiming the full amount of the loan. In this regard applicants' counsel referred the court to paragraph 12 of the loan agreement which reads as follows:

[14] The Act does not compel a credit provider to allow a consumer to reinstate the credit agreement by paying the overdue amounts after action has been instituted pursuant to sending out a Section 129(1) notice to which the consumer did not respond. Section 123(3) and (4) applies before a credit provider has cancelled the credit agreement. The issuing of the summons is clearly an act of cancellation of the credit agreement.

[15] Although the applicants did not attach an affidavit by the attorneys whose offices were used as their service address to confirm that they had sent the application for summary judgment to the incorrect facsimile number, I will accept that explanation for the absence of opposition to the application for summary judgment.

[17]   The application is accordingly dismissed with costs.