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[2010] ZAWCHC 607
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Heunis and Another v Absa Bank Ltd (6246/2008) [2010] ZAWCHC 607 (6 December 2010)
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.
[8]
Applicants alleged that they would have opposed the summary judgment
on the basis that the
bona
fide
defence
is as follows. They paid all monthly instalments before and after the
3 month period in which they had fallen into arrear.
They would like
an opportunity to pay in the arrear amount and to bring the account
up to date. This is a remedy afforded to them
by the
National Credit
Act but
because they did not receive the
Section 129
notices, they
did not avail themselves of that remedy. They have subsequently paid
the arrear amount into the trust account of
their attorneys and have
tendered payment to the respondent.
[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:
"Die
BANK sal geregtig wees om die FASILITEIT
te
kanselleer
en
onmiddellike betaling van alle uitstande bedrae ingevolge die
FASILITEIT te eis indien ..."
[10]
On behalf of applicants it was argued further that paragraph 8 of the
loan agreement provides for the full amount of the loan
becoming
immediately due and payable in the event of a breach by the
applicants and that the provision is in fact a
lex
commissoria.
It
was contended that a
lex
commissoria
cannot
be immediately enforced as
Section 123
read with
Sections 129
and
130
of the
National Credit Act requires
that a consumer be placed
in
mora
and
thereby be given an opportunity to remedy his failure to pay.
[11]
On respondent's behalf it was argued that once mail is sent by
registered post it is considered to have been received irrespective
of whether it was actually received or not. On respondent's behalf it
was argued further that the
National Credit Act cannot
amend the
agreement between the parties and there was accordingly no need for
the respondent to place the applicants
in
mora.
[12]
Once the respondent produced proof that it had posted the
Section
129(1)
notices to the domicilium of the applicants on 22 December
2009, the applicants are considered to have received them. (See:
Munien
v BMW Financial Service (SA) (Pty) Ltd and Another
(unreported
decision of NPD: 16103/08 (3 April 2009) and
Section 65
of the Act)).
Unlike in the case of
Roussouw
v First Rand Bank Limited,
the
Supreme Court of Appeal case, No. 640/2009 the respondent
in
casu
was
able to produce as part of its papers proof of postage by means of a
duly completed list of registered letters.
[13]
In the
Roussouw
case (supra) at paragraph 20,
Maya
JJA, writing for a unanimous court concluded that the bank was
entitled to enforce the entire loan
agreement,
which includes a
lex
commissoria
and
the
National Credit Act does
not restrict it from doing that.
[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.
[16]
I am not convinced however that the applicants have a
bona
fide
defence
to the merits of the claim of the respondent as they admit that they
were in default with their payment obligations. They
also failed to
avail themselves of the remedies afforded to them by the Act
timeously.
[17] The
application is accordingly dismissed with costs.
ALLIE,
J