IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE REGION, PORT ELIZABETH

CASE NO.: 592/2012

In the matter between:

Applicant

and

THE STANDARD BANK OF SOUTH AFRICA Respondent

CERTIFICATE OF URGENCY

I,

RADIKA GOVENDER

am a practising member of the lndependant Advocates Association of South Africa

and carry on practice at 16 Brooklands Avenue, Weybridge Park, Port Elizabeth and

as the Applicants counsel herein state that:

A THE RELIEF SOUGHT

1. I have had sight of the Applicants papers.

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2. Applicant relies on the provisions of the High Court Rules 45 (5) and 45 (A) in

seeking to stay an imminent Sale in Execution of the Immovable property of

the Applicant.

3. The sale is scheduled for Friday, 12 October 2012 at 15h00.

4. Applicant further seeks that the Honourable Court to stay the Execution of the

Respondent's Order pending the decision in the Application for Rescission.

5. The Applicant requests the condonation of the above Honourable Court for

non-compliance with the time prescripts as per the Uniform rules of Court.

The Applicant only became aware of the Default Judgement, when a Notice of

Attachment was served on his ex-wife, Jill Plumstead on the 11 June 2012.

6. The Applicant then launched an Application for Rescission on the 28 June

2012, but I have found in the interests of urgency and caution to launch an

Application to stay the Execution as a matter of urgency bearing in mind that

the sale is to take place on Friday, 12 October 2012.

7. I have filed a Notice of Substitution of Counsel as at today, the 10 October

2012. The Applicant believed that his legal representative at the time would

have acted upon the Application filed and served on the 28 June 2012, but it

seems that for reasons unknown the matter wasn't persued.

B APPLICANT'S ALLEGATION OF INJUSTICE SHOULD THE WRIT NOT BE

STAYED

7. Applicant alleges that the respondent has failed to effect correct service in

terms of Uniform Rule 4A of the Notice in terms of S129 of the National Credit

Act 34 of 2005 of the Notice upon him and had he been aware of the Notice

he would have acted appropriately in accordance there with.

8. On the 15 April 2011, the Applicant sent a letter to the Respondent confirming

his change of address to a post office box in Pretoria.

9. On the 26 July 2011, The Applicant provided the Respondent with an affidavit

confirming his address as: 91 Eeufees Street, Pretoria North, Pretoria, 0116.,

upon which his Notice in terms of S129 of the NCA and his summons was

served.

10. On the 6th December 2011 the Applicant provided the Respondent by way of

registered mail a further change of address: 17 Zasm Street, Waterval Boven,

Mpumalanga.

11. The Respondent failed to inform their attorneys of the change of address and

thus the Applicant was unaware of the Summons and the Subsequent Default

Judgement.

12. The Notice in terms of S129 of the NCA (S129 Notice) was dated the 24

January 2012 and was posted on the 27 January 2012.

12. It is unclear when or even if the S129 Notice reached Pretoria. It was not

collected for obvious reasons as the Applicant would not have receved the

postage slip to collect the registered mail document as it was sent to the

incorrect address.

11. Both the Notice in terms of S129 of the National Credit Act 34 of 2005 and the

Combined Summons were served on the incorrect address and had the

Applicant received the S129 Notice he would have exercised his rights in

terms thereof and approached a debt counsellor or approached an alternative

dispute resolution agent in order to resolve any dispute under the agreement

and to develope a plan to bring the payments under the agreement up to date.

12. The Return of Service dated 02 March 2012, state that the Applicant was no

longer resident at the service address.

14. It has always been the intention of the Applicant to defend his property and

would have done so had he been aware of the enforcement proceedings

against him.

15. It is the Applicant's intention to settle his arrears with the lawful holder of his

debt.

16. In the particulars of claim for the Default Judgement the Respondent avers

that the residence is not the primary residence of the Applicant. The Applicant

is divorced and his ex-wife and 3 children stay in the premises and part of

their divorce agreement is that he pays for the mortgage bond thereon and as

such is their primary residence.

C CONCLUSION

17. Applicant is seeking an indulgence as provided by the High Court Rules.

18. By Virtue of the Sale being held on 12 October 2012, this Application should

be heard urgently.

DATED at PORT ELIZABETH on this 10 day of OCTOBER 2012

ADV. RADIKA GOVENDER

COUNSEL FOR THE APPLICANT

Per:

16 Brooklands Avenue Weybridge Park PORT ELIZABETH 6070

P 0 Box 8030 SCHAUDERVILLE Port Elizabeth

Tel: (041) 368 6930 Fax: (086) 621 5293 E-mail: dcc@dccentre.co.za

TO; THE REGISTRAR OF THE HIGH COURT:

EASTERN CAPE, PORT ELIZABETH

TO: JOUBERT GALPIN SEARLE

Respondent Attorney

173 Cape Road

Mill Park

PORT ELIZABETH

Tel: (041) 373 2653

Ref: Mr J Du Plooy/ Retha/STA2/1782