IN THE CONSTITUTIONAL COURT OF SOUTH AFRICAdownloads.newera.org.za/NewERA/1 Notice of Motion.pdfIN...

[1]

NOTICE OF MOTION

(to Registrar and Respondent’s)

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Case No. …………………

In the matter between:

MICHAL JULIUS TELLINGER

Applicant

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THE STANDARD BANK OF SOUTH AFRICA LIMITED 1st Respondent THE SOUTH AFRICAN RESERVE BANK 2nd Respondent THE MINISTER OF FINANCE 3rd Respondent

Take notice that MICHAL JULIUS TELLINGER (hereinafter called The Applicant) intends to

make application to this Court for an order;-

PART A

(a) Declaring sections of the Bank Act, Act 94 of 1990 and subsequent rules so promulgated in

terms of the empowering act to be inconsistent with the Constitution, 1996 in so far as the

practices of commercial banks, that inter alia include securitisation, seignorage, fractional

reserve system and/ or artificial money creation and/ or principles relating thereto, either by

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simulation or alike are in conflict with Human Rights, bonus mores, public policy, financial

hardship, arbetry deprivation of homes in terms of section 25 and prejudice caused in such

financial dealings.

(b) Declaring sections of the South African Reserve Bank Act, Act 90 of 1989 and subsequent

rules so promulgated in terms of the empowering act to be inconsistent with the

Constitution, 1996 in so far as the practices of the Central Bank, that inter alia include

securitisation, seignorage, fractional reserve system and/ or artificial money creation and/ or

principals relating thereto, either by simulation or alike are in conflict with Human Rights,

bonus mores, public policy, financial hardship, indirect causation of arbetry deprivation of

homes in terms of section 25 and prejudice caused in such financial dealings.

(c) That such Government Policies, Economical Policies and/ or related policies and/ or

legislation related thereto, inclusive of rules to be inconsistent with the Constitution, 1996 in

so far as the practices of the Central Bank, that inter alia include securitisation, seignorage,

fractional reserve system and/ or artificial money creation and/ or principals relating thereto,

either by simulation or alike are in conflict with Human Rights, bonus mores, public policy,

financial hardship, indirect causation of arbetry deprivation of homes in terms of section 25

and prejudice caused in such financial dealings.

(d) That, if found, by this Honourable Court that neither statue, rule or policy specifically

authorise the use of inter alia securitisation, seignorage, fractional reserve system and/ or

artificial money creation and/ or principals relating thereto, either by simulation or alike, the

3rd Respondent institute such action deemed necessary and appropriate to stop the 1st and 2nd

Respondent immediately from conducting such business and where appropriate declare by

certification all monies so loaned to be inconsistence with the Constitution.

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(e) If the Honourable Court finds such inconsistencies as per paragraph (a), (b) and/ or (c) the

Applicant’s prayers are as follows;

i. An amount equal to R15’000.000.00 (fifteen million) be paid to the Applicant for

general, specific and reputational damages;

ii. The 1st and 2nd Respondent to pay the cost of these proceedings, jointly and severally,

the one to pay the other to be set free;

iii. The Honourable Court to determine the extent and application of amendments, if any,

or introduction of a bill, as the Honourable Court finds just and equitable;

iv. Further and/ or alternative relieve.

PART B

(f) Setting aside the whole of the Judgment and order of the South Gauteng High Court,

Johannesburg under case number 13340/2011 [the Court below] that was heard by

Honourable Judge M. M. Mabesele and replacing same with such order deemed just and

equitable; or in the alternative,

(g) The aforesaid Judgment, after the determination of the merits of this case, be referred back

to the Court below for trial; or in the alternative,

(h) The aforesaid Judgment, after determination of the merits of this case, be referred back to

the Court below, allowing the 1st Respondent and Applicant to amend their filings so to

bring same in line to the directions of the this Honourable Courts; or in the alternative,

(i) That were this Honourable Court finds in terms of PART A the legislation, rules and

policies herein to be inconsistent with the Constitution, find that the 1st Respondent’s notice

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of motion in the Court below be dismissed with cost, or such appropriate order the

Honourable Court finds just and equitable under the circumstances.

(j) That failing the aforementioned prayers, the Applicant be allowed to petition the Supreme

Court of Appeal with the leave of the Honourable Court, cost being reserved unto the

finding of the Court aforesaid.

(k) Further, that the 1st Respondent pay the cost of these proceeding’s; in the alternative,

(l) The 1st Respondent together with the 2nd Respondent and 3rd Respondent pay the cost of

these proceedings should the 2nd Respondent or 3rd Respondent oppose these proceedings;

(m) An order the Honourable Court finds just and equitable;

(n) Further and/ or alternative relieve.

and that the accompanying affidavit of MICHAL JULIUS TELLINGER will be used in support

thereof.

Take notice further that the applicant has appointed BLAKES ATTORNEYS, 2ND OFFICE, 74

OXFORD ROAD, CORNER 8TH SAXONWOLD, JOHANNESBURG as the address at

which he will accept notice and service of all process in these proceedings.

Take notice further that if you intend opposing this application you are required;-

(a) to notify applicant's attorney in writing on or before 27 MAY 2010; and

(b) within 15 DAYS after you have so given notice of your intention to oppose the application

to file your answering affidavit, if any; and further that you are required to appoint in such

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notification an address at which you will accept notice and service of all documents in

these proceedings.

If no such notice of intention to oppose is given, the applicant will request the Registrar to place

the matter before the Chief Justice to be dealt with in terms of Rule 11(4).

DATE AT MIDRAND, THIS 19th DAY OF APRIL 2012

MICHAL JULIUS TELLINGER Applicant

C/o BLAKES ATTORNEYS 2nd Office

74 Oxford Road, Corner 8th Avenue Saxonwold

JOHANNESBURG Telephone: (011) 468 3225

Fax: (011) 486 3602 Email: [email protected]

Reference: MJT/2012/787

SERVICE PER SHERIFF

TO: (1) THE STANDARD BANK OF SOUTH AFRICA LIMITED 1st Respondent 9th Floor Standard Bank Centre 5 Simmonds Street JOHANNESBURG Telephone: (011) 636 9111 Fax: (011) 636 4207

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TO: (2) THE SOUTH AFRICAN RESERVE BANK 2nd Respondent 370 Church Street PRETORIA 0001 Telephone: (011) 240 0700 Fax: (011) 240 0735

TO: (3) THE MINISTER OF FINANCE

3rd Respondent C/o THE STATE ATTORNEY, JOHANNESBURG 10th Floor North State Building 95 Market Street JOHANNESBURG Telephone: (011) 330 7600 Fax: (011) 337 7180

AND TO:

THE REGISTRAR Constitutional Court: Constitution Hill Braamfontein JOHANNESBURG

[1]

NOTICE OF MOTION



Case No. …………………



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TABLE OF CONTENTS

No. Subject Page Par

1 Notice of Motion … 1 – 6 -

2 Table of Contents (this document) … 7 – 5 -

3 Table of Statutes … 1 – 8 -

4 Founding Affidavit of Michal Julius Tellinger 1 – 100 -

4.1 The Parties 1 – 3 2 – 5

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4.2 Nature of Application … 5 - -- 4 - --

4.3 Contention for Direct Access … 5 – 14 5 - 11

4.4 Overview of Proceedings (The Court a Que) … 14 – 16 12 - --

4.5 Chronology of Relevant Events … 16 – 34 13 - --

4.6 Overview of Dispute … 34 – 56 14 - 36

4.7 Points Raised in the Court A Quo … 57 - -- 37 - --

4.8 Introduction to Business of the Bank … 57 – 66 38 - 45

4.9 Bank Credit … 66 – 67 46 - --

4.10 Securitisation … 68 – 74 47 - 64

4.11 Seignorage … 75 – 79 65 - 69

4.12 Fractional Reserve System … 79 – 82 70 - 71

4.13 Prejudice caused to me … 82 – 84 72 - 73

4.14 Artificial Money Creation … 84 – 89 74 - 87

4.15 Inference of Fiduciary … 89 – 82 88 - 94

4.16 Conclusion … 92 – 94 95 – 102

4.17 Prejudice … 94 – 94 103-108

4.18 Legislative Bill Introduced … 95 – 95 109 - --

4.19 Errors in Legal Reasoning … 95 – 96 110-111

4.20 Conclusion and Remedies … 96 – 96 112-115

4.21 Leave to Appeal … 96 – 97 116 - --

4.22 Declaration of Unconstitutionality … 97 – 98 117-121

4.23 Review of the 1st Respondent's Decision … 98 – 98 122-123

4.24 Cost … 98 – 99 124-126

4.25 Conclusion … 99 – 100 127-128

4.26 Signature … 100 -

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5 Annexure to the Founding Affidavit:

5.1 Written Reasons Rule 49(1)(C) “MT A1” 1 – 3 -

5.2 Application for Certified Copies of Court File “MT A1” 3 – 4 -

6. Main Annexures to the Founding Affidavit:

6.1 Court File (Copy) "MT 1” 1 – 384 -

6.2 Application for Leave to Appeal "MT 2” 385 – 392 -

6.3 Notes of Leave to Appeal "MT 3” 393 – 460 -

6.4 1st Respondent Advertisement (Photo) "MT 4” 461 - -- -

6.5 Securitisation EG Van Den Berg "MT 5” 462 – 471 -

6.6 Securitisation Rick Watson "MT 6” 472 – 486 -

6.7 Basel II - Deloitte "MT 7” 487 – 506 -

6.7 Bayport Pricing Supplement "MT 8” 507 – 513 -

6.8 Bayport Asset Backed Note Program "MT 9” 514 – 676 -

6.9 Bayport Annual Financials 2010 "MT 10” 677 – 714 -

6.10 SA Home Loans Advertisement "MT 11” 715 – 717 -

6.11 Seignorage and Monetary Policy "MT 12” 718 – 725 -

6.12 Fractional Reserve Banking "MT 13” 726 – 739 -

6.13 When Central Banks Fail "MT 14” 740 – 742 -

6.14 The Weimar Hyperinflation "MT 15” 743 – 751 -

6.15 Currency Substitution UoP "MT 16” 752 – 772 -

6.16 Gear Policy – SA Government "MT 17” 773 – 838 -

6.17 Statistical release "MT 18” 839 – 847 -

6.18 In Re Ferrel L Agard "MT 19” 848 – 884 -

6.19 The Case of Icelandic "MT 20” 885 – 886 -

6.20 The Case of Wells Fargo Bank "MT 21” 887 – 895 -

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6.21 Financial Markets Bill "MT 22” 896 - 975 -

DATE AT MIDRAND, THIS 19th DAY OF APRIL 2012







SERVICE PER SHERIFF


TO: (2) THE SOUTH AFRICAN RESERVE BANK

2nd Respondent 370 Church Street PRETORIA 0001 Telephone: (011) 240 0700 Fax: (011) 240 0735

[5]



AND TO:


[1]

NOTICE OF MOTION



Case No. …………………



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TABLE OF STATUES/ AUTHORITIES

No. Subject Page Par

Statues’

1. Banking Institutions Act 25 of 1946;

2. Banking Institutions, Mutual Building Societies And Building Societies Amendment Act 13

of 1989;

3. Banks Act 94 of 1990;

4. Bill of Exchange Act 34 of 1964;

[2]

5. Collective Investment Schemes Control Act 45 of 2002;

6. Companies Act 61 of 1973;

7. Competition Act 89 of 1998;

8. Constitution of: The Republic of South Africa, 108 of 1996;

9. Consumer Protection Act 68 of 2008;

10. Co-operative Banks Act 40 of 2007;

11. Currency and Banking Act, 1920 (act No. 31 of 1920);

12. Currency and Exchanges Act 9 of 1933;

13. Financial Advisory and Intermediary Services Act 37 of 2002;

14. Financial Institutions (protection Of Funds) Act 28 of 2001;

15. Financial Institutions Amendment Act 99 of 1967;

16. Financial Intelligence Centre Act 38 of 2001;

17. Financial Services Board Act 97 of 1990;

18. Financial Services Laws General Amendment Act 22 of 2008;

19. Financial Services Ombud Schemes Act 37 of 2004;

20. Inspection of Financial Institutions Act 80 of 1998;

21. Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002;

22. Mutual Banks Act 124 of 1993;

23. National Credit Act 34 of 2005;

24. Notarial Bonds (natal) Act, 1932, Amendment Act 57 of 1937;

25. Prescribed Rate of Interest Act 55 of 1975;

26. President's Minute No. 329 and Proclamation;

27. Prevention of Counterfeiting Of Currency Act 16 of 1965;

28. Proclamation - South African Reserve Bank Amendment Act, 2010 (Act No. 4 of 2010) –

Government Gazette No. 33551

29. Savings Bank Societies Borrowing Powers Act 6 of 1932

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30. Securities Services Act 36 of 2004

31. South African Reserve Bank Act 90 of 1989

32. South African Reserve Bank Act, 1989 (Act No. 90 of 1989)

33. South African Reserve Bank Amendment Act, 2010 (Act No. 4 of 2010)

34. South African Reserve Bank Regulations 2010

35. South African Reserve Bank, Banking Institutions, Mutual Building Societies and Building

Societies Amendment Act 96 of 1988

36. Suretyship Amendment Act 57 of 1971

37. Terms of reference of the panel as established in terms of Section 4 of the South African

Reserve Bank Act, 1989

38. Trade Metrology Act 77 Of 1973

Authorities: South African

Swanepoel v Nameng (43/2009) [2009] ZASCA 101; 2010 (3) SA 124 (SCA) ; [2010] 1 All SA

345 (SCA) (18 September 2009)

Graham NO and others v Trackstar Trading 363 (Pty) Ltd (1361/02) [2002] ZAECHC 20; [2003]

1 All SA 181 (SE) (8 August 2002)

Shoprite Checkers Ltd t/a Megasave v Khan and another (ECJ 2004/007) [2004] ZAECHC 19 (8

July 2004)

Geue and Another v Van Der Lith and Another (625/02) [2003] ZASCA 118; [2003] 4 All SA 553

(SCA) (20 November 2003)

Command Protection Services Gauteng (Pty) Ltd t/a Maxi Security v South African Post Office

Limited (16945/2004) [2009] ZAGPPHC 134 (30 October 2009)

De Villiers NO and Another v BOE Bank Limited (477/2002) [2003] ZASCA 101; [2004] 2 All

SA 457 (SCA) (26 September 2003)

[4]

McPherson v Khanyise Capital (Pty) Ltd and Others (24309/08 ) [2009] ZAGPHC 57 (27

February 2009)

Mussolo (Pty) Ltd v Luterek and Another (460/05) [2006] ZAWCHC 48 (27 October 2006)

Bonpure (Pty) Limited and Another v Parry and Others (10978/05) [2006] ZAWCHC 19 (17 May

2006)

Diggers Development (Pty) Ltd v City of Matlosana and Another (47201/09) [2010] ZAGPPHC

15 (9 March 2010)

Molyneux v Wicks and Others (496/2007) [2007] ZAECHC 66 (31 August 2007)

ZALC - Project 47: Unreasonable Stipulations in Contracts and the Rectification of Contracts -

CHAPTER 2: Evaluation

ZALC - Project 47: Unreasonable Stipulations in Contracts and the Rectification of Contracts -

CHAPTER 2: Evaluation

G Liviero & Son Buiilding (Pty) Ltd v Ifa Fair-Zim Motel & Resort (Pty) Ltd, Ifa Fair-Zim Motel

& Resort (Pty) Ltd v G Liviero & Son Buiilding (Pty) Ltd and Another (7802/09, 7803/09,

7434/09) [2010] ZAKZPHC 44 (27 August 2010)

Public Procurement and Asset Disposal Board and Another v Researched Solutions Integrated

(Pty) Limited and Others (Civil Appeal No. CACLB 56 of 205) [2006] BWCA 2 (27 January

2006)

Director of Public Prosecutions v Daisy Loo (Pty) Ltd and Others (CLCLB-067-08) [2009]

BWCA 21 (28 January 2009)

Securefin Limited and Another v KPMG Chartered Accountants SA (29314/2002) [2007]

ZAGPHC 130 (19 July 2007)

Standard Bank of South Africa Limited v University of the North and Others (23391/2003) [2005]

ZAGPHC 351 (30 November 2005)

Sealed Africa (Pty) Ltd v Kelly and Another (3957/04) [2005] ZAGPHC 69 (6 July 2005)

[5]

Nedbank Limited v Gani, Nedbank Limited v Gani (28028/2005, 28601/2005) [2006] ZAGPHC

151 (31 January 2006)

Bethlehem Technologies London Limited v Deysel (33815/05) [2006] ZAGPHC 127 (2 October

2006)

Nedbank Limited v Geldenhuys and Another (13509/2005) [2005] ZAGPHC 286 (27 July 2005)

Allison v Absa Bank Limited (22361/03) [2007] ZAGPHC 133 (26 July 2007)

Mpofu v South African Broadcasting Corp Limited (SABC) and Others (2008/18386) [2008]

ZAGPHC 413 (16 September 2008)

Tafira and Others v Ngozwane and Others (12960/06) [2006] ZAGPHC 136 (12 December 2006)

Concor Holdings (Pty) Ltd v Minister of Water Affairs and Forestry and Another (Judgment on

Exception) (16947/2001) [2006] ZAGPHC 138 (6 January 2006)

Van Zyl and Others v Government of the Republic of South Africa and Others (20320/02) [2005]


Trustees of the time being of the Biowatch Trust v Registrar Genetic Resources and Others (Open

Democracy Advice Centre as Amicus Curiae) (A831/2005) [2008] ZAGPHC 135 (13 May 2008)

Al-Kharafi & Sons and Another v Pema and Others NNO (2008/12359) [2008] ZAGPHC 273 (27

August 2008)

Commissioner for the South African Revenue Service v King and Others (10240/2003) [2005]

ZAGPHC 229 (29 April 2005)

Nedbank Ltd v Master of the High Court (Witwatersrand Local Division) and Others (5619/08)

[2008] ZAGPHC 216 (18 July 2008)

Equity Aviation Services (Pty) Limited v South African Post Office Limited (17239A/2007)

[2008] ZAGPHC 4 (8 January 2008)

Dispersion Technology (SA) (Pty) Ltd t/a Pelo Healthcare v State Tender Board and Another

(15182/2004 ) [2007] ZAGPHC 175 (4 September 2007)

[6]

MMA Security Services CC t/a Broubart Security and Another v Private Security Industry

Regulatory Authority and Others (35393/2003) [2009] ZAGPHC 9 (27 January 2009)

Muckleneuk/Lukasrand Property Owners and Residents Association v MEC Department of

Agriculture Conservation and Environment Gauteng Provincial Government and Others (Review

Application 28192/04), Muckleneuk/Lukasrand Property Owners and Residents Association v

HOD Department of Agriculture Conservation and Environment Gauteng Provincial Government

and Others (Urgent Application 12137/06) (28192/04 , 12137/06) [2006] ZAGPHC 86 (30 August

2006)

Hlophe v Constitutional Court of South Africa and Others (08/22932) [2008] ZAGPHC 289 (25

September 2008)

Lurco Trading 189 (Pty) Ltd v Local Municipalitiy of Madibeng (55329/2007) [2008] ZAGPHC

211 (4 July 2008)

Concor Holdings (Pty) Ltd v Minister of Water Affairs and Forestry and Another (Judgment on

Exception) (16947/2001) [2006] ZAGPHC 138 (6 January 2006)

Van Zyl and Others v Government of the Republic of South Africa and Others (20320/02) [2005]


Securefin Limited and Another v KPMG Chartered Accountants SA (29314/2002) [2007]


Anvil Financial Services (Pty) Ltd and Another v Netstar (Pty) Ltd (2006/8054) [2006] ZAGPHC

121 (31 October 2006)

Statusfin Financial Services (Pty) Limited v Vos and Others (21404/05 ) [2007] ZAGPHC 195 (11

September 2007)

Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School (A1170/05)

[2006] ZAGPHC 124 (11 September 2006)

[7]

Platinum Asset Management (Pty) Ltd v Financial Services Board and Others , Anglo Rand

Capital House (Pty) Ltd and Others v Financial Services Board and Others (2004/3081 ,

2004/6260) [2005] ZAGPHC 126 (5 December 2005)

Glenrand Mib Financial Services (Pty) Ltd and Others v Van Den Heever NO and Others

(4445/07) [2007] ZAGPHC 392 (23 November 2007)

Director of Public Prosecutions v King (CC257/2005) [2008] ZAGPHC 118 (24 April 2008)

S v Mgabhi (161/07) [2008] ZAGPHC 470 (1 December 2008)

Authorities: United States of America

Wells Fargo Bank, N.A. v Farmer 2008 NY Slip Op 51133(u) [19 Misc 3d 114(a)] – Annexure

“MT 21”, pg. 887

The case of Icelandic (Unreported) – Annexure “MT 20”, pg. 885

Ferrel L. Agard – Case No. 810-77338-reg – Annexure “MT 19”, pg. 848

DATE AT JOHANNESBURG, THIS 19th DAY OF APRIL 2012







mailto:[email protected]

[8]

SERVICE PER SHERIFF


TO: (2) THE SOUTH AFRICAN RESERVE BANK

2nd Respondent 370 Church Street PRETORIA 0001 Telephone: (011) 240 0700 Fax: (011) 240 0735



AND TO:


[1]

NOTICE OF MOTION (to Registrar and Respondent’s)


Case No:.…………………



Applicant

~and~

THE STANDARD BANK OF SOUTH AFRICALIMITED 1st Respondent THE SOUTH AFRICAN RESERVE BANK 2nd Respondent THE MINISTER OF FINANCE 3rd Respondent

FOUNDING AFFIDAVIT

I, the undersigned


do hereby make oath and say that:

[2]

THE PARTIES:

1. I am an adult male with South African Identification number 600513 5020 08 2, residing

at, 17 Crescent Ave, Waterval Boven, Mpumalanga, South Africa.

1.1 I am the Applicant in this application for leave to appeal directly to this Court in

terms of Rule 18 of this Court’s Rules, read with Section 167(6)(b)an (7) of the

Constitution.

1.2 I bring this application in my individual and personal capacity for the reasons so

set-out hereinafter.

1.3 The facts herein contained are, save where the contrary appears from the context,

within my personal knowledge, to the best of my belief both true and correct, and I

can and do swear positively thereto.

1.4 Where I make legal submissions, I do so, on the basis of research, my profession

and experience and knowledge, as well as on the basis of legal advice I have

received which I verily believe to be correct.

1.5 In substance the same I have averred in the Court below.

1.6 I have acted in my personal capacity throughout Courts below and intenddoing so

with the leave of the Honourable Court.

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1.7 I will also be assisted by Mr Raymondt Dicks, a legal advisor, whom has assist me

in drafting this application and whom has co-researched the content under which

relief is sought.

2. The 1st Respondent is THE STANDARD BANK OF SOUTH AFRICA LIMITED, with

registration number 1962/000738/06, a limited liability company duly registered and

incorporated in accordance with the company laws (Companies Act No.61 of 1973) of the

Republic of South Africa and an authorised financial service provider and registered credit

provider in terms of the National Credit Act' 34 of 2005 with registration number

NCRCP15 and a banking company, a bank as defined in section 1 of the Bank Act, 1990

(Act 94 of 1990) with principal place of business situated at 9th Floor, 5 SIMMONDS

STREET, MARSHALLTOWN, JOHANNESBURG 2000.

2.1 The 1st Respondent is sited herein as relief is sought against it for the reasons so set-

out hereinafter.

2.2 The 2nd Respondent is the SOUTH AFRICAN RESERVE BANK, established by

Section 9 of the Currency and Banking Act, 1920 (Act No 31 of 1920) and is

governed by the South African Reserve Bank Act, 1989 (Act No 90 of 1989), as

amended and Section 223 to 225 of the Constitution of the Republic of South

Africa, 1996; the South African Reserve Bank Act, 1991, and the regulations

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framed in terms of this Act, provide the enabling framework for the Reserve Bank's

operations and acts as the ‘Central Bank’ of the Republic of South Africa, with

principal place of business situated at 370 Church Street, PRETORIA 0001.

2.3 The 2nd Respondent is sited herein as it, inter alia, is a body whom is concerned

with the formulation, implementation of monetary policy, whom is entrusted with

ensuring that the banking and financial system as a whole is sound and whom

assists the South African Government, inclusive of other members of the economic

community, in the formulation and implementation of macro-economic policy; and

2.4 Further the 2nd Respondent advises and oversees monetary policy, in specific, but

not restricted therein, the Basel I, II and III reports; and

2.5 Further the 2ndRespondent conducts sub-functions of authority over the 1st

Respondent, in this regard, the Registrar of Banks, as contemplated in section 4 of

the Bank Act, 94 of 1990.

3. The 3rd Respondent is the Republic of South Africa, herein represented by the MINISTER

OF FINANCE, acting in his official capacity, with principal place of business situated at

40 Church Square, Old Reserve Bank Building, 2nd Floor, PRETORIA, Care of The State

Attorney, Johannesburg 10th Floor North State Building 95 Market Street Johannesburg.

[5]

3.1 The 3rd Respondent is sited herein as it functions as an Organ of State, with the

power and responsibility which, inter alia, include state entities that aim to advance

economic growth and development, and to strengthen South Africa’s democracy;

and

3.2 Further, the 3rd Respondent has oversight authority, as far as these proceedings are

concerned, over the South African Revenue Service and the Financial Services

Board; and

3.3 Furthermore the 3rd Respondent has authority over the 2nd and 1st Respondent

respectively with regard to the implementation of rules, regulations, public policy,

policy and governance.

NATURE OF APPLICATION:

4. This is an application for direct access to the Honourable Constitutional Court in terms of

Rule 11(1)(a) read together with Section 167(4)(a) of the Constitution of South Africa.

CONTENTION FOR DIRECT ACCESS:

5. The Honourable Judge M. M. Mabesele, sitting as a court of appeal in the South Gauteng

High Court, Johannesburg under case number 13340/2011[the Court below] that was heard

[6]

and dismissed by the aforesaid Honourable Judge without reasons. Despite request during

the proceedings and by written request, the said Honourable Judge remains imperceptible.

The Court file to these proceeding has been annex hereto as “MT 1”.

5.1 The aforesaid appeal is in substance the same as I presented to the Court below.

Annex “MT 2”, pages 385 to 392 read together with annex “MT 3” pages 393 to

460 hereto.

5.2 I therefore bring this application without the approval or support of the Court

below.

5.3 This application is founded on the infringement of a right which section 38(a) of the

Constitution vests in a person acting in their own interest.

6. I bring this application on account of;

6.1 Having leave to appeal being denied in the Court below, I am left with no other

avenue in which, by right, I can see the review of the Judgment;

6.2 The matter is a;

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6.2.1 Constitutional dispute between Organs of State established by the

Constitution, performing functions under section 70(1)(b) and section

44(1)(ii) of the Constitution respectively,

6.2.1.1 of paramount public interest; and

6.2.1.2 pivotal in defining one of the most important features of our

social-economical democracy; and

6.2.1.3 intrinsically and probably exclusively of a constitutional nature;

and

6.2.1.4 precedent-setting for a large number of related financial

operations/transactions and disclosure procedures, not-

withstanding collection procedures by the South African

Revenue Service; and

6.2.1.5 precedent-setting for a large number of related matters; and

6.2.1.6 the outcome of this case will define what could be the most

salient feature of our parliamentary legislative, monetary and

financial democracy; and

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6.2.1.7 there are issues or disputes of material facts as indicated in the

Court below; and

6.2.1.8 the prospect of the Supreme Court of Appeals granting leave to

appeal is uncertain; and

6.2.1.9 it would not appear that deliberations in this Honourable Court

necessitate or could benefit from the Supreme Court of Appeals

hearing it first; and

6.2.1.10 the Judgment of the Court below rendered by Judge M. M.

Mabesele, in Case No. 13340/2011[the “Judgment”] being

erroneous, without proper consideration, consultation and

without reasons for finding.

7. I intend petitioning the Supreme Court of Appeals for leave to appeal so as to preserve my

only other available avenue for redress, should this Honourable Court not accept my

petition.

8. This matter concerns;

8.1 The constitutionality of certain rules of the National Policy and National

Legislation, inter alia, The Bank Act (94 of 1990), The South African Reserve

[9]

Bank Act (90 of 1989), Deposit-taking Institutions Amendment Act (81 of 1991),

Bills of Exchange Act (34 of 1964), Consumer Protection Act (68 of 2008), Co-

operative Banks Act (40 of 2007), Currency and Exchanges Act (9 of 1933),

Financial Advisory and Intermediary Services Act (37 of 2002), Financial Services

Board Act (97 of 1990), Financial Services Laws General Amendment Act (22 of

2008), Financial Services Ombud Schemes Act (37 of 2004), Inspection Of

Financial Institutions Act (80 of 1998), National Credit Act (34 of 2005), Notarial

Bonds (Natal) Act, 1932, Amendment Act (57 of 1937), Prescribed Rate of Interest

Act (55 of 1975), Securities Services Act (36 of 2004) the aforementioned act’s

regulations and other related legislation which are excluded herein.

8.2 How long must an affected party endure the adverse application of an

unconstitutional law or the threat thereof, before that party may challenge the

constitutionality of that law, and

8.3 Cost orders in respect of good faith defence litigation in constitutional matters; and

8.4 Moreover, the appeal relates to the failure by the Court below to exercise its

discretion properly, in that the Court below failed to recognise;

8.4.1 a lawful defence,

[10]

8.4.2 its Constitutional impactions,

8.4.3 the implications of contra bonus mores,

8.4.4 identify the short comings of the 1st Respondent’s submissions to my

defence,

8.4.5 applying and developing the common law,

8.4.6 andthe Court below erred in other aspects which are relevant and material

to the reasoning to reach the conclusions set out in the Judgment.

8.5 The Judgment of Acting Judge Bava of the Court below is annex herein as “MT 1”

pages 2 to 12 in the bundle.

8.6 After having heard oral argument, Judge M. M. Mabesele dismissed my application

for leave to appeal with cost. Despite request for written reasons for finding at the

end of the hearing, the learned Judge M. M. Mabesele indicated that there are

procedures to follow, thus refusing the application aforesaid.

8.6.1 Written application was brought on 14March 2012, and to date hereof no

such reasons of finding had been forthcoming. See annex “MT A1” pages 1

and 2 hereto.

[11]

9. The substantive reliefs that I seek from this Honourable Court in the application of leave to

appeal against the Judgment are the following;

9.1 A declaration that the order of the learned Judge M. M. Mabesele, dismissing my

leave to appeal in the Court below, is inconsistent with the Constitution and invalid;

and

9.1.1 Should the Honourable Courtissue such declaration, the 1st Respondent shall

be allowed to amend its pleadings and I be allowed to file a replying

affidavit so to allow the matter to proceed on trial in the Court below.

9.2 a Declaration that, in the alternative to paragraph 9.1.1 above, that where this

Honourable Court does not issue such declaration aforesaid, the matter be allowed

to proceed on trial in the Court below.

9.3 An order that the 3rd and 2nd Respondent are to;-

9.3.1 Introduce such amendments, deemed just and equitable, to the Bank Act,

(94 of 1990) and the South African Reserve Bank Act (90 of 1989)that will

prevent a bank from exploiting the economic principles of ‘seignorage’,

‘securitisation’ and the ‘fractional reserve system’, and provide such

safeguards and penalties appropriate to discourage further exploitation; and

[12]

9.3.2.1 Cause the implementation of such measures that will allow

interested parties to use and apply the PAJA to gain access to

such records held by a bank or third party whom holds

possession of such information; and

9.3.2.2 That a bank causes such amendments to their loan application

documents and procedures so to disclose any special future or

possible benefit gained to such Securitisation scheme or

alternative method of funding;

9.3.2.3 OR as the Honourable Court finds just and equitable given the

circumstance of its finding; and

9.3.2.4 In the alternative to cause the 2nd Respondent, in consultation

with the 3rd Respondent and other interested parties, to

introduce in the National Assembly such Act presented to it in

the course of these proceedings;

9.4 The actions of the 1st Respondent (banks) be declared unconstitutional, null and

void and, to introduce such procedures and safeguards that will ensure that these

practices are prevented or in the alternative controlled; and

[13]

9.5 That the 1st Respondent corrects my account to reflect the correct, ‘adjusted debt

amount’ in accordance with what this Honourable Court finds to be unjust-

enrichment; and

9.6 An order that the 1st Respondent pays the cost of this application and the cost of my

application in the Court below; and/ or

9.7 Such other or alternative remedy which the interest of justice may require or

justify.

10. As set out below, it is in the interest of justice that this Honourable Court be the Court

which hears and decides the merits of this case, once it reaches its conclusion that it was

erroneously decided by the Court below.

11. In this affidavit, I intend dealing with the following:

11.1 Overview of proceedings in the Court a quo;

11.2.1 Chronology of Relevant Events;

11.2.2 Overview of disputes;

11.2.3 Points raised in the Court a quo.

11.2 Introduction to business of the bank.

11.3 Bank Credit.

11.4 Securitisation.

11.5 Seignorage.

11.6 Fractional Reserve System.

[14]

11.7 Prejudice Caused to Me.

11.8 Artificial Money Creation.

11.9 Inference: Fiduciary

11.10 Conclusion

11.11 Prejudice

11.12 Legislative Bill introduced

11.13 Errors in legal reasoning

11.14 Conclusion and Remedies

11.15 Leave to Appeal

11.16 Declaration of Unconstitutionality

11.17 Review of the 1st Respondent's Decision

11.18 Costs.

11.19 Conclusions

OVERVIEW OF PROCEEDINGS (THE COURT A QUO):

12. I obtained a home loan agreement from the 1st Respondent on or about the 26th of February

2007 in the amount of R828015.00.

12.1 A continuing covering mortgage bond was registered over the property on or about

the 16th of November 2007.

[15]

12.2 During November 2010 to March 2011,I sought from the 1st Respondent a

settlement amount together with a certificate of balance1 and contracts relating to

the home loan agreement, the continuing covering mortgage bond, the power of

attorney assigned by me (see annex “MT 1”, page 23) to the 1st Respondent to

effect the registration of the bond and continuing covering mortgage bond, together

with affirmation or certification that the 1st Respondent is indeed the holder of the

continuing covering mortgage bond, together with such proof that it had not sold-

on its security and that the 1st Respondent had indeed used ‘money’ to effect the

loan.

12.3 Despite the demands aforesaid, the 1st Respondent failed to address/ answer any

one of the requests.

12.4 The 1st Respondent instituted motion proceedings against me in the South Gauteng

High Court, Johannesburg under case number 13340/2011seeking an order in the

following terms (Annexure “MT 1” pages 39 to 111 thereof);-

12.4.1 Payment of the sum of R980 111.30;

1When the possessor of goods or services writes out a certificate of credit stating someone has credit for a certain amount of his goods or services, it means that that someone has a claim for that amount of those goods or services; that is, those goods or services will be given to the bearer of that certificate in the manner stated on that document. The certificate of credit is the physical evidence to prove that the possessor of the goods or services owes (is in debt to) the bearer for a certain amount of goods and/or services.

[16]

12.4.2 Interest on the above amount at the legal rate of 15.5% per annum a

tempore morae, alternatively interest at the rate of 9% per annum from 2

February 2011 to date of payment

12.5 Cost of suit on an attorney and own client scale;

12.6 Declaring that the property as 926 Somerset Extension 18, Midrand, approximately

450 square metres in extent, be (declared) executable.

12.7 I entered a defence to these proceedings, which was subsequently outright

dismissed by the Honourable Justices of the court, including an application for

appeal.

12.8 The defence entered by me now forms part of these proceedings and are pivotal to

these proceedings.

CHRONOLOGY OF RELEVANT EVENTS

13. In early 2007, I wanted to buy a certain property in Midrand. I signed the offer to purchase

with the estate agent as is the norm, and waited for feedback from Standard Bank the 1st

Respondent herein, who was the appointed bank by the particular agent. Soon after I was

granted, what is commonly referred to as a “Home Loan” by banks. Since this was an “off-

plan” property that was being built, it took several more months, until the end of 2007, for

I was presented with the obligatory mortgage bond to sign.

[17]

13.1 I started to pay the home loan, which gradually increased to its full amount, until I

finally took transfer of the property and rented it out. That was not what I had

originally intended to do however. Intended selling the property for a small profit

but the delivery took much longer than originally promised, by which time the

property market had crashed and I could not even get close to the original price for

it.

13.2 I continued to pay the home loan, until around October 2010, at which point I

believed that I would be coming into some money that would allow me to settle the

full bond. In light of this, in November 2010, I requested certain documents from

the bank, like an official statement; and a settlement amount or Certificate of

Balance (Page 85 to 110 of annexure “MT 1”). The communication contained in

the annexures of the 1st Respondent notice of motion is incomplete as it does not

contain communications I had sent to the bank prior to these proceedings.

13.3 The aforementioned was not presented by the 1st Respondent until legal

proceedings commenced. Instead, after several email requests and two notarised

affidavits were served on the bank requesting the documents and clarification of

their actions, I was notified in an email that the bank would not produce the

documents, but instead, that the case had been handed over to their lawyers. See

page 83 of annex “MT 1” hereto.

[18]

13.3.1 I would like to point-out that paragraph 1 of the 1st Respondent letter does

not mention the institution of legal proceedings but rather “to proceed with

judgment against you” and further “… property will be sold in execution

by the Sheriff.” I also would like to point out paragraph (i) to (v) under

“Pros” and points (i) to (v) under “Cons”.

13.3.2 It would seem the 1st Respondent was ipso facto convinced that any other

right a person might have in law was void, thus their judgment was

immanent, per say, futile to defend.

13.4 I found this highly irregular and unacceptable behaviour, since I was in

communication with the bank offering to settle the full bond, requesting the

necessary documentation to do so. I was being prevented from doing so by the

bank, who instead of simply providing the documents, chose to stop

communicating with me and sued me.

13.4.1 The action by the 1stRespondent was premature in issuing motion

procedures against me. Thus, the 1st Respondent elected to rather extend

cost and interest in these proceedings rather than answer simple questions

asked of it.

[19]

13.4.2 The proceedings premature as they were, was further ignored in the Courts

below so much so the council for the 1st Respondent alluded in its

argument in Court that I was selectively trying to waste the Court’s time

and get out of debt.

13.4.3 The premises of my writings prior to the proceedings of the 1st Respondent

were not taken into consideration or even given its value that I simply

needed answers from the 1st Respondent so to make an informed decision

to settle my bond.

13.5 It was at this stage that I also began to discover deeply troubling information

suggesting that banks create money out of “thin air”,(See annex “MT 12” page

718 to 725) with clever and deceptive bookkeeping tactics (See annex Basel II

report and comment by Deloitte at annex “MT 7”, pages 487 to 506), by simple

debit and credit entries, and enriching themselves, or profiteering, by using the

signatures of their clients on the original “promissory notes,” which are sold on the

international stock/bond markets – a process that is closely guarded by the banks,

and commonly known as securitisation.

13.6 I began to do extensive research and started to question certain aspects of the

banking industry (See annex “MT 5” and “MT 6” hereto) and how they go about

[20]

their business. At this stage I was joined in my research by at least three other

highly intelligent and capable individuals, who had similar experiences with their

bank, and were finding the same evidence, including similar response by the banks

to disclose this information.

13.7 Receiving this abrupt approach by the 1st Respondent, I became suspicious about

some basic economic principles that simply did not make any sense to my scientific

mind. The more I delved into this matter, the more sinister it seemed. Like most

trusting people, I did not really give any of this much thought. I just could not

imagine that the bank may possibly be doing something so scheming and

convoluted. I assumed that the strictest laws and codes of conduct governed the

workings of a bank that would prevent such deceptive actions and profiteering.

13.8 The simple question I posed to the 1st Respondent could not be answered by any

one of the 1st Respondent’s employees or even senior staff members. As such, my

concerns can be summarised as follows;-

13.8.1 How is it possible that banks have this seemingly bottomless pit of

money, (see annex “MT 12” and “MT 13” hereto) that they are able to

dip into at any time, to produce seemingly infinite amounts of money, to

millions of South Africans?

[21]

13.8.2 How is it possible that they could boldly advertise “75 Billion Rand in

Home Loans” See annex “MT 4” hereto; and sponsor a variety of

cultural activities and sporting events on television, costing hundreds of

millions of Rands?

13.8.3 Where does all that money come from – surely it cannot all come from

deposits of their customers? This was concerning, as the risk involved

would effectively mean that money is valued at a fraction we thought it

to be. See “MT 13”, “MT 14” and “MT 15”.

13.8.4 Considering the above, the 1st Respondent’s financials, which are readily

available from their Internet web-site, do not disclose what the 1st

Respondent purports to have loaned to the home loan industry, i.e. 75

Billion Rand.

13.9 As hard as I tried to approach this paradoxical problem from every logical

perspective, it just did not add up. After more research, and to my dismay, I found

that my original research information about the concealed activity of the bank was

mostly accurate and that it is well hidden from their good-hearted and trusting, yet

ignorant clients.

[22]

13.9.1 Given the above, I cannot recall that this information was disclosed to

mention application, or that I have signed any document relating to such

disclosure with the 1st Respondent; and

13.9.1.1 Had I done so, the 1st Respondent failed to bring such

information to my attention, including the Court below.

13.9.2 The home loan contract neither mentions the 1st Respondent’s practice of

how it goes about lending money, but rather it alludes that it, the 1st

Respondent, loaned sound, liquid money to me.

13.10 The information and research that I am referring to deals with aspects of law and

internal banking activities that are kept out of the public domain by the bank – both

consciously and maliciously (see annex “MT 17” hereto). Furthermore, the bank is

being protected by law (Bank Act and annex “MT 7” hereto), not to have to

disclose critical aspects of their internal activity, even when confronted by people

like me in a court of law. I find this so called ‘secrecy’ of the bank to be completely

unacceptable and unconstitutional in an open and free society, striving to uphold

and develop common law principles. This aspect was clearly observed in the Court

below, as the facts were foreign and unknown to the court thus, senior counsel

representing the 1st Respondent made a mockery of me in Court, so much so that it

[23]

is recorded that senior counsel referred to me as being part of a ‘cult.’ The attorneys

openly joked about it and the 1st Respondent, in their replying affidavit, referenced

my defence to be ‘nonsensical’, ‘irrelevant’, ‘unintelligible’ and ‘imaginary’.

These propositions were carried into the proceedings in the Court below and in

selective media publications.

13.11 I realised that the most disturbing part of this, is that the entire legal system

seems to be completely stacked in favour of the banks, isolated from considering

my contention and defence, despite valid references to law, case law and articles on

the subject matter. See annex “MT 19” and “MT 21” hereto.

13.12 And as the weeks went by and I tried to get simple documents and answers from the

bank, I realised that ordinary citizens seem to have no recourse against the might of

the bank, when they feel their rights have been violated. The legal costs of

confronting the banks in the current legal system are far beyond most people’s

capacity. I got the impression that the legal counsel was either already on the banks

roll or was unwilling to assist as their potential earnings from acting on behalf of

the bank could be prejudiced.

13.12.1 A primary example of this is that the home loan agreement, which was

brought up by senior counsel during the hearing, included a clause that,

[24]

unbeknown or understood by me, attempted to enforce the automatic

payment of the bank’s legal costs whether or not I won or lost the case. I

find such a clause unlawful and unfair in all its applications and see it as

malicious entrapment without disclosure by the 1st Respondent. See

annex “MT 1” letter of demand, home loan agreement and covering bond

as security.

13.13 After not having any success from two notarised affidavits that were delivered to

the bank during December 2010 and again in January 2011, where I requested

information and documents, and after receiving a summons from the bank in March

2011, I decided to represent myself and use my case as an example to expose what

many have interpreted as malicious, devious and even fraudulent activity by the

bank.

13.13.1 I have to point out here that before and after the 1st Respondent engaged

in writing to me I had corresponded with them on an on-going continued

basis, whiles this continued, the 1st Respondent elected to proceed with a

motion application against me.

13.14 To my horror I found out that the courts and the law was not exactly fair to a

layperson, dismissing factual information and other evidence because it was not

[25]

presented according to court rules, of which a layperson has very little experience,

or knowledge. To a layperson like me, it seems that the courts and judges simply

dismiss arguments because they assume that I could not possibly have a solid case,

even when I placed the evidence right in front of them.

13.15 The conclusive thought in these premises was simply that I had gained some

benefit(a house) and to that effect I must pay, irrespective of what happens or had

happened behind closed doors and irrespective of what impact it has on the

‘payback’ or ‘irregular’ manner under which the lending occurred. A crisp question

in this regard would be, if the bank obtained money under activities described

below, would I still be liable to pay interest? If the answer is to the positive, then

the presumption or message to the public would be that to defraud someone is

wrong but to gain from the proceeds are justified which would equate that crime

does pay!

13.16 It became very clear to me that that the law is applied very differently to the bank

as opposed to ordinary citizens. This remains a deeply troubling aspect and the

main reason why I bring this application to the Constitutional Court.

13.17 It also became evident that the lawyers for the 1st Respondent, their advocates and

even the Judges themselves have very little knowledge of the deeply convoluted

[26]

and secret activities of the bank. Whether they are party to selective and preferential

information, or are simply uniformed by the 1st Respondent, is not known.

Furthermore, the Judges of the Court below were not prepared at any occasion to

test these arguments by allowing the matter to go to trial, so that evidence could be

presented, tested and an informed decision made.

13.18 The Court below had failed to recognise that there exists, proportionally so, a

defence that raises a new (modern) approach, consistent with developing the

common law, English law of Contract and conflicting legislation. In this regard I

refer the Honourable Court to annexures “MT 8”, “MT 9”, “MT 10” and “MT 11”.

13.19 In my last two hearings, the learned Judge simply accepted the 1st Respondent’s

argument as gospel truth, irrespective of the many contradictions and breaches of

acts which I highlighted. It was as if the 1st Respondent was always true and

correct. What I said, however, must be some fabrication by an ignorant layperson

with some kind of an agenda against the bank. See page 169 of “MT 1” in contrast

the 1st Respondent’s arguments in the Court below and the Judgment of Acting

Judge Bava.

13.20 I state that there was no intention now, or before, to run-away from an obligation to

pay for something gained – this was and is not the issue at hand. The matter of fact

[27]

is that payment of compound interest on something that effectively never existed in

a tangible monetary format from the inception of the home loan agreement, does

not justify the extortionate interest charged and demands to be paid in liquid

money. I refer the Honourable Courts attention to paragraph 13.4.1 above.

13.20.1 I direct the Honourable Court’s attention to annexure “MT 1” page 16,

paragraph 5 under the heading “lack of defence”. The 1stRespondent’s

contention remains that I have paid, then deny the loan agreement. This

is not my contention or defence per-say. In this regard I refer the

Honourable Court to the subheading “errors in legal reasoning”

hereunder.

13.21 I state for the record that I entered these proceedings voluntarily, not because I was

unable to pay the monthly bond instalments, or because I was trying to wangle my

way out of a debt, nor because I am crazy – but because I believe in integrity and

honesty and because I believe that an injustice needs exposure and correction.

13.22 After studying the Bills of Exchange, and realising the word “money” is just a word

used by a bank in the public sector, but does not actually form part of the bank’s

real business, I went to great deal of trouble to obtain two copies of an official

statement from the bank in the Sandton Branch, signed and endorsed by the

[28]

assistant bank manager. Since this document falls under the definition of section 2

of the Bills of Exchange Act, I used my right to apply the aforesaid action

demonstrate to the 1st Respondent what I had implied that the 1st Respondent is

dealing in, i.e. negotiable instruments. The Mortgage Bond Agreement clearly

stipulates that the 1st Respondent accepts payments in the form of Bills of Exchange

and Promissory Notes. In this regard annexure “MT 5”, “MT 6” and the ‘Bayport’

annexure “MT 8” to “MT 10” are relevant.

13.23 On the 10th of February 2011, I meticulously followed the stipulations of section

19 and 25 of the Bills of Exchange Act, endorsed it with my signature by

acceptance for value and submitted it to the bank as payment in full and final

settlement. Such a transaction is described by the Act, as “irrevocable and complete

upon delivery.” [See Malan on Bill of Exchange, Cheques and Promissory Notes:

Fourth Edition, 2002 pages 250 at paragraph 158 Presentation for acceptance.]

13.24 The reason why I underwent the aforementioned process was to illustrate the

following:

13.24.1 If there exists no empowering act to prescribe or regulate the issue of

bills and notes, as will be shown herein, the nothing prohibits me to

follow suite and do as the 1st Respondent does on a daily basis, that is

[29]

generate ‘money’ from ‘thin air’ and claiming liquidity in return thereof.

The position is between the Bank Act, the South African Reserve Bank

Act and Policies governing these principals.

13.24.2 Further, if the 1st Respondent rejects the bill of exchange, the counter

would be obvious; the 1stRespondent’snegotiable instruments would also

be of no value. In this regard the Honourable Court’s attention is drawn

to the principles of securitisation, seignorage, fractional reserve system

and the artificial money creation.

13.26 In the opposite, the argument will be, when dealing in bills of exchange, the 1st

Respondent is conducting its business on the premises of having liquidity one to

one or equal to the value of the bill. As will be shown herein, the 1st Respondent’s

assets or liquidity, as per its financials, do not add up as it simply enters debit and

credits to establish/create ‘money’.

13.27 My aforementioned illustrations were bluntly ignored, erroneously displaced or

alternatively made out to be irrelevant; reasoning being that what the 1st

Respondent does with my security, or whatever it does to borrow money, is of no

concern to me. Therefore, they argue that I had no business in the Court below.

[30]

13.28 I see this as a blatant violation of my rights by the Court, that seems to dispense the

law selectively and partially in favour of the 1st Respondent.

13.30 The proceedings before the Court below were presented with ample documents,

writings and explanations. Particular reference in this regard is made to my

application for leave to appeal. During these proceedings I presented the Court with

a 58 page presentation, consisting of meticulous arguments, reference to law and

case law. Despite this, the Court below took no less than one minute to make its

Judgment. The Court below, after being presented with such representation, never

asked a single question whatsoever. Senior Counsel for the 1st Respondent took no

more than twenty minutes to counter my arguments, of which ten minutes was

spent by said Counsel elaborating on the “nonsensical” contention of my

presentation, but yet confirming that the 1st Respondent does process ‘credit’ and

‘debit’ entries to generate money out of thin air. The substance of the counter

argument was clear and simple: “so what, it’s none of the Applicant’s business

what the bank does behind the scenes.”

13.31 I urged the Court that I did not want anything extraordinary, but simply wished the

Court to recognise the severe complexity of the matter. This was not a simple case

that could be concluded in a motion court and I asked to be granted my

constitutional right to a fair trial. I repeated several times that only in a trial we

[31]

could call upon expert witnesses to be cross-examined, and to verify allegations

that the bank has acted in bad faith, with malicious intent, and that their contracts

are cunningly structured to entrap unwitting customers. Using these negotiable

instruments, which are disguised as mere “agreements”, the banks profiteer from

their customers while, in fact, they have no locus standi; and they are in breach of a

long list laws, Acts, policies and codes of conduct.

13.32 The relevant points posed by me, which were ignored by the Court below, are as

follows:

13.32.1 The 1stRespondent’s employee, Mr Joop Dekker whom disposed of i) a

founding affidavit and later ii) an answering affidavit on behalf of his

employer, was found to be without proper authority by the learned Judge

Bava of the Court below. Thus the 1st Respondent was ordered in a

Judgment to obtain supportive documents/ affidavit to confirm that Mr

Dekker had the appropriate authority to dispose of the said affidavits.

Thus, it was required that minutes of meetings and a certification of

appointment, signed by the Directors of the 1st Respondent, be presented

to confirm the appointment and authority of Mr Dekker. No such

documents were presented, other than an affidavit by the 1st Respondent’s

attorney stating that Mr Dekker had such authority. Unless the said

[32]

attorney is also a Director of the 1st Respondent, the affidavit cannot hold

or be construed to be authority for Mr Dekker to act on behalf of his

employer, the 1st Respondent. This point was erroneously ignored in the

Court below.

13.32.2 The bank blatantly lied in court and misrepresented the facts about a

number of points:

13.32.2.1 that I was given a ‘Certificate of Balance’ when I requested

it;

13.32.2.2 that the 1st Respondent presented at least five different

affidavits by people other than Joop Dekker. The only other

affidavit presented was a one-pager by Mr Aslam Moosajee,

attorney to the 1st Respondent;

13.32.2.3 I presented a detailed description of how securitisation

works and how the bank sells its rights and therefore loses

all rights to the property by selling the ‘note’;

13.32.2.4 the home loan contracts of the 1stRespondent do not indicate

or mention that the 1st Respondent loans to the Applicant

‘money’; e.g. “We, the Standard Bank of South Africa

[33]

Limited do hereby loan to the Applicant an amount of Rx".

The wording is a clever masquerade avoiding the use or

mention of actual “liquid money”; and instead makes

reference to, “an amount of; “the sum of”; “a credit of”; but

never actually calls it money per say.

13.32.2.5 Senior Counsel for the1st Respondent admitted in Court that

they accept payment in the form of bills of exchange and

promissory notes as stipulated in the covering bond.

13.32.2.6 The admittance of the 1st Respondent that they do not have

vaults of physical money, indicative that the 1st Respondent

had acquired what it loaned through other means, thus

giving preference to my avertments in these proceedings;

13.32.2.7 The 1st Respondent admitted that they do deal in

securitisation, supporting my avertments that it not the

business of the bank to deal in securitisation with its own

securities/ loans.

13.32.2.8 The Judge of the Court below failed to apply his mind to the

matter. More so, due to the nature and application of the

[34]

defence raised by me, despite there being reasonable

prospect that the 1st Respondent was not as forthcoming as

required in practice, avertments by the 1st Respondent

giving advance to my contention and the impairment by the

Court below to test my contention in an opposed setting, I

was severely prejudiced and damaged by the judgement.

OVERVIEW OF DISPUTES:

14. Prior, during and after the Court procedures below, I experienced a great deal of bias,

prejudice, humiliation and unease. These were not reassuring, especially considering that

matters like these attract such high cost that its almost imposable to acquire counsel and

attorneys to act on one’s behalf. This point is extended where consideration is given that

the plaintiff, in the majority of cases, had already suffered financial hardship; to have his or

her matter heard and argued adds to this financial burden. In short, I have experienced the

following;

14.1 Being ignored by the presiding Judge to such extent that the matter was almost

concluded, e.g. postponement of the matter with both trial date and costs that were

preferential to the 1st Applicant. Had I not verbally interjected, the matter would

have continued as if I was a persona non grata.

[35]

14.2 I was present in Court, while both Judge and Counsel discussed the merits and

nature of the case. I was in totality ignored, as if my presence was not welcome in

the Court.

14.3 When postponement dates were discussed, I was not given the opportunity, nor

asked if I was in agreement to such dates. It was concluded without a glance in my

direction.

14.4 The most humiliating experience of all was during the brief appearance in the

Motion Court before Judge Berochovitz. The presiding Judge mocked my clothing

by commenting that I looked like a “mechanic from Mpumalanga.” This comment

was received by the copious counsel present in court as the best joke that the day

could harvest.

14.5 My presence before the Courts below contained end-to-end obstacles of prejudice,

demeaning comment and blatant disregard of my rights to voice a defence.

14.6 I was left with an immediate impression that my defence would not receive

appropriate consideration, almost as if I was precluded from the very start of the

proceedings.

[36]

14.6.1 It became apparent, and regrettably so, that this forum was avoided by

laypersons, for the reasons aforesaid, where money prevents them from

pursuing justice; and by the intimidating nature and conduct of the Court

and its representatives.

14.6.2 Having considered my fullest right to represent myself in these

proceedings; not to cause or bring about additional financial burden upon

myself, and notwithstanding that there has been so much reluctance from

attorneys and counsel to assist me due to the nature of my defence, I was

content to enforce my rights of self-appearance, relying on the

constitutional principal of audi alteram partem.

15. Regrettably, the fanciful principals of such rights where short lived, as it would seem that

Judges were only entertaining my presence because they were duty bound. It seems to me

that the result was a pre-determined outcome. One that was clearly oblivious and

insensitive to the international and local financial crises, not questioning aspects of my

defence so to gain clarity, insight or investigate further the probability of a valid defence.

15.1 An aspect I had observed in the Court below was that much attention was given to

Counsel, especially senior counsel, as was the case in my matter. I bow to the fact

that such calibre has much knowledge of proceedings in court and the law, and to

[37]

the fact that senior counsel was chosen to represent the bank in such a simple

motion hearing. This however does not suggest that the presiding Judge should be

guided by counsel, nor take lead from counsel, where this was most certainly the

case during my hearings. It is the function of a Judge to act as umpire, to consider

all the facts so presented, and investigate or research further if there are imbalances,

more so if the subject matter is foreign, technical or a subject matter unfamiliar as

was the case here.

15.2 In the matter of Inzinger v Hofmeyr and Others2 para 4 “An exception that a

pleading is vague and embarrassing strikes at the formulation of the cause

of action and its legal validity. It is not directed at a particular paragraph

within a cause of action but at the cause of action as a whole, which must

be demonstrated to be vague and embarrassing.” Consistently, [a

vagueness amounting to embarrassment and embarrassment in turn

resulting in prejudice must be shown.]

15.2.1 The question however arises to whom the prejudice leans; thus an

evaluation is required to determine the facts. It follows that a

Constitutional right, in this regard section 25 of the Constitution,

2Inzinger v Hofmeyr and Others (7575/2010) [2010] ZAGPJHC 104 (4 November 2010) ~ The Principles Relating To Exceptions. Also see Jowell v Bramwell-Jones and others 1998 [1] SA 836 W at 905E-H ~ “I must first ask whether the exception goes to the heart of the claim and, if so, whether it is vague and embarrassing to the extent that the defendant does not know the claim he has to meet…”

[38]

finds proper foundation as per First National Bank of SA Limited

t/a Wesbank v Commissioner for the South African Revenue

Services and Another; First National Bank of SA Limited t/a

Wesbank v Minister of Finance3para 32.

15.2.2 The Court below had not given proper thought to paragraph 15.1

aforementioned. Had it done so, it would have come to the

realisation that a plea, however vague or embarrassing, waivers on

prejudice. Should the subject matter be property, the prejudice

weighs heavier where such property could be deprived.

15.2.3 Consideration therefore should have been more focused on an

enquiry to the merits of my defence as opposed to its outright

dismissal without due consideration.

15.2.3 I placed sufficient evidence before the Court below, so as to shift

the probability to that of a proper defence. Therefore, I have

dispensed properly and correctly with the required facta probanda.

3First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services and Another; First National Bank of SA Limited t/a Wesbank v Minister of Finance (CCT19/01) [2002] ZACC 5; 2002 (4) SA 768; 2002 (7) BCLR 702 (16 May 2002)

[39]

15.3 From the records of the Court below, it would become apparent that the 1st

Respondent had not properly set aside the allegations made against it. It held

that the loan agreement and continuing mortgage bond acted as a proverbial

shield against my defence.

15.3.1 The 1st Respondent had caused the registration a Covering Bond,

which included an ‘Acknowledgement of Debt’. In accordance

with the findings of Thienhaus v Metje and Ziegler Ltd4, the court

pointed out that, in practice, mortgage bonds serve three purposes,

viz, [a] to create a security interest, [b] to record the details of the

obligation secured, and to [c] create a contractual debt.

Williamson’ JA explained (at 31):~ “clearly a mortgage bond can

be utilised both as an instrument of hypothecation and as a record

of the terms and conditions of the obligation in respect of which the

hypothecation is to create a security; in addition it is a matter of

common and usual custom in the drafting of bonds to incorporate

therein an unqualified admission of liability by the mortgagor. The

reason therefore is, however, certainly not that such an

acknowledgment is required for the validity of the bond as a means

4Thienhaus v Metje and Ziegler Ltd, 1965 (3) SA 25 (A).

[40]

of creating a real right by hypothecation in favour of the creditor.

The origin and the prime purpose of the custom is the facilitation of

the obtaining of a quick and easy remedy, such as provisional

sentence, against the mortgagor in case of his default”;[isn’t this

case in favour of the banks?]

15.3.2 In conjunction, section 90 of the National Credit Act5, prohibits

any contract to contain an ‘acknowledgement of debt’;- Section

90(1) read with (2)(a)(i), (ii) (b)(i) and (c)(i);

15.3.3 Furthermore the inclusion of an ‘acknowledgement of debt’ in the

mortgage bonds, signed and authorised by an agent of the 1st

Respondent, on behalf the ‘power of attorney’ defeats the ends of

justice and is a direct contravention of the Consumer Affairs

(Unfair Business Practice) Act, 1988 and the Consumer Protection

Act6;

15.3.3.1 Submission is also made that reliance by the 1st

Respondent on its home loan agreement is, in

5National Credit Act (34 of 2005) 6Consumer Protection Act (68 of 2008)

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contrast, unjust, irregular and without merit.

Substantial submissions where made from the

inception of the proceedings in the Court below that

the 1st Respondent had acted irregularly, which

actions were in-consistent with Contract Law and

business ethics.

15.3.3.2 Having regard to the above, I submit that the United

States of America Statute, “Truth in Lending Act7”

gives consumers the right to cancel certain credit

transactions that involve a lien on a consumer's

principal dwelling, regulates certain credit card

practices, and provides a means for fair and timely

resolution of credit billing disputes. With the

exception of certain high-cost mortgage loans, TILA

7The Truth in Lending Act (TILA) of 1968 is United States federal law designed to promote the informed use of consumer credit, by requiring disclosures about its terms and cost to standardize the manner in which costs associated with borrowing are calculated and disclosed. The Truth in Lending Act was originally Title I of the Consumer Credit Protection Act, Pub.L. 90-321, 82 Stat. 146, enacted June 29, 1968. The regulations implementing the statute, which are known as "Regulation Z", are codified at 12 CFR Part 226. Most of the specific requirements imposed by TILA are found in Regulation Z, so a reference to the requirements of The TILA usually refers to the requirements contained in Regulation Z, as well as the statute itself. From TILA's inception, the authority to implement the statute by issuing regulations was given to the Federal Reserve Board. However, on July 21, 2011, TILA's general rule making authority was transferred to the Consumer Financial Protection Bureau, which was established on that date pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act which was enacted in July 2010. The Federal Reserve will retain some limited rule making authority under TILA for loans made by certain motor vehicle dealers, and for certain other provisions. References: Dlabay, Les R.; Burrow, James L.; Brad, Brad (2009). Intro to Business. Mason, Ohio: South-Western Cengage Learning. p. 469.ISBN 9780538445610. Reverse Mortgages, Retrieved December 20, 2011. Truth in Lending Handbook, Office of Comptroller of the Currency, Administrator of National Banks, December 2006.Truth in Lending Act Legislative History Law Librarian's Society of D.C.

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does not regulate the charges that may be imposed

for consumer credit. Rather, it requires uniform or

standardized disclosure of costs and charges so that

consumers can shop around. It also imposes

limitations on home equity plans that are subject to

the requirements of Sec. 226.5b and certain higher-

cost mortgages that are subject to the requirements of

Sec. 226.32. The regulation prohibits certain acts or

practices in connection with credit secured by a

consumer's principal dwelling.

15.3.3.3 Having regard to the above, the Court below had

condoned the 1st Respondent’s actions, despite such

actions being contra bona mores, prejudicial (see

paragraph 15.2 above) and removes all common law

defences I could raise. This is evident in the

proceedings before this application.

16. The Uniform Rules of Court, rule 32(2) make provision for “…, together with an affidavit

made by himself or by any other person who can swear positively to the facts verifying the

cause of action and the amount, if any, claimed and stating that in his opinion there is no

[43]

bona fide defence to the action” and that;” ~ “… notice of intention to defend has been

delivered solely for the purpose of delay.” and further “… If the claim is founded on a

liquid document a copy of the document shall be annexed to such affidavit …”

16.1 In the matter of FirstRand Bank Ltd v Beyer8 after an analysis of Rule 32(2) of the

Uniform Rules of Court clearly shows that the court, before it can grant summary

judgment, must, from the facts set out in the verifying affidavit itself, be able to

make a factual finding that [a] the person who deposed to the affidavit was able to

swear positively to the facts alleged in the summons and annexures thereto and [b]

be able to verify the cause of action and [c] the amount claimed, if any, and be able

to [d] form the opinion that there was no bona fide defence available to the

defendant, and that the [e] notice of intention to defend was given solely for the

purpose of delay.

16.2 Juristic entities, like that of the 1stRespondent, whom authorise employees to

dispense and swear to the correctness of avertments in an affidavit are to state how

it obtained such authority. It follows that such authority must also be annexed to

such affidavit. In this instance the Respondent had failed, neglected and/ or refused

8FirstRand Bank Ltd v Beyer 2011 (1) SA 196 (GNP).

[44]

to address this requirement despite a ruling by the learned Judge Bava that it need

to comply with this requirement;

16.2.1 The 1st Respondent had as stated herein, presented supporting affidavits,

which I submit, are unsupportive as to the requirements to prove or

disprove such appointments and authority. The Court below had failed to

thoroughly examine this point and had, per-say, accepted the 1st

Respondent’s contention as per Advocate Shem Symon, that it had filed

such supporting affidavits.

16.2.2 Ideny that the facts referred to in 1stRespondent’s particulars of claim

[annex “MT 1” page 16”] are within the personal knowledge of Mr Joop

Dekker. Emphasis is made that under these premises, Mr Dekker does

not and cannot have knowledge, nor could he comment on i) the

avertments made in my pleadings, or ii)the nature of my defence. The

Court below had erred to give proper consideration to this fact. Had it

investigated or given proper thought to the representation, it would have

come to a different finding.

17. The standard terms and conditions of the 1stRespondent declares the renouncement of all

benefits from the exceptions, which might or could have been pleaded in so far as it places

[45]

a bar to any claim/ defence that I could have under the loan agreement/ mortgage bond.

These presences are in contravention of Section 90 of the National Credit Act, 2005,

Section 90(1) read with (2)(a)(i), (ii) (b)(i) and (c)(i). I was therefore barred from raising

and entering a plea to this exception, although I haves how n proper grounds of

profiteering. The Court below had erred by not taking cognisance thereof.

18. I submit, given the principles of Securitisation, Seignorage, the Fractional Reserve System

and other processes that derive from bank processes, including loan contracts, are legally

and civilly prejudice, harmful, and amount to unjust enrichment that causes financial

hardship which in turn causes the arbitrary deprivation of ownership, or continued

ownership of land and housing.

19. If, for reasons of operating in law and rules of civil procedure I have failed to follow

proper service or notice, or to have given my defence proper, I submit that a failure to do

so should have been met by an enquiry conducted by the Court below so to determine the

precise contention. I make the latter point as my defence is not common, it is technically

difficult and would seem to go against the common practice of raising a defence. For this

reason alone, an outright dismissal was not warranted by the Court below irrespective of its

misgivings or presentation.

[46]

19.1 I submit further that the High Court has an obligation in terms of the Constitution

to develop the common law, not to be blindsided by new principles and, where

appropriate, it is required to adjudicate proper on matters by having sufficient

knowledge of the matter it is to preside over. The Court below could not have taken

proper knowledge or enquiry of the 58 page presentation made to it by me, which

included reference to law, case law and avertments of profiteering, contraventions

of law and errors contained in the 1st Respondent’s submissions. Instead, the court

presented its Judgment directly and in no less than one minute after the matter was

heard.

20. The Court below heard arguments made by the 1st Respondent’s counsel, that I belong to

some kind of “cult” that holds some kind of grudge against the bank and all of banking as a

whole. It was also alleged that other matters, where similar defences where raised, but not

adjudicated on, thus res judicata, were of the same “cult”. These avertments have no place

before a Court, were unsubstantiated and irrelevant. Such avertments were designed and

uttered to deceive the Court that my defence was “nonsensical”, “irrelevant” and

“fanciful”. We cannot know whether the Court below had taken cognisance of these

avertments, or whether it placed evidential weight to these avertments, because the learned

Judge did not provide a written Judgment with reasoning. Within these confines I believe

that the learned Judge was persuaded by these avertments.

[47]

20.1 I learned that counsel for the 1st Respondent gained his reputation as a specialist in

banking law. If this is factual, it is submitted that counsel erred in his duty to the

Court below. Counsel should have been very knowledgeable of securitisation,

seigniorage and the fractional reserve system; therefore his election to mount a

defence of “nonsensical”, “irrelevant” and “fanciful” was in conflict with the

prescribed code of conduct. Counsel would thus have assisted the 1st Respondent in

deceiving Court below.

20.1.1 In this regard I refer the Court’s attention to the appropriate paragraphs

of the 1st Respondent’s replying affidavit:

20.1.1.1 Ad paragraph 18, “tirade of unintelligible allegations”;

20.1.1.2 Ad paragraph 7, “nonsensical and fanciful”;

20.1.1.3 Ad paragraph 8, “theoretical defences” and [lack of] “factual

foundation”;

20.1.1.4 Ad paragraph 10, “fanciful and dishonest” and “bizarre and

outrageous contentions”.

21. The 1st Respondent tried to turn me in to an ignorant, mindless individual trying

desperately to wangle his way out of debt. I submit that my defence and these proceedings

[48]

contain no such motivation. The defence is based on sound principles of law, supported by

common law principles, legislation, public policy and more so a principle that the actions

of the 1st Respondent are against the moral fibres of a democratic society where rights are

protected by guarantee in the pre-amble to the Constitution.

22. It is humbly submitted that, where rights are circumvented, prejudiced and profiteered on,

it does become my business, and the business of the Court below. Such violation of rights

cannot be ignored or played off as “fanciful” cult-type mala fides merely because the

defence is not pleaded correctly, represented by expensive lawyers using intimidating

tactics, or the lack of correct attire. A representation/ defence is valued for its impact/ value

or weight it might have on the proceedings; in this case a summary judgment.

23. One cannot lend that which one does not possess. If one does, but acquired it through

another process e.g. securitisation, seigniorage or the fractional reserve system, the action

is therefore simulated, and the lender becomes an “intermediary” or “broker”. Such

relationship embodies the moral, ethical and fiduciary right of disclosure.

24. If one cedes, gives as security, or sells the contractual rights to another, as this case

implies, the 1st Respondent cannot be the “Applicant” in a motion proceeding. It would

lack the appropriate locus standi. In the alternative if the 1st Respondent had disposed of its

security and had been given the authority to act on such legal action by such third party,

[49]

the 1st Respondent did not include such authority in its founding affidavit. In such event it

is contested that the 1st Respondent would, in any event, be entitled to be a party to the

proceedings. As per the definition of “business of the bank” in the Bank Act, the 1st

Respondent would be precluded from acting as such. Notwithstanding this fact, the 1st

Respondent would still be acting as ‘intermediary” in these proceedings.

25. I submit that the learned Judge Mabesele erred in finding that my submissions in

paragraphs 1 and 2 had nothing to do with the loan agreement, as it has everything to do

with the home loan agreement. I make this submission based on the following facts; If it is

alleged that a company acted irregularly in liquidation proceedings, the alleger can apply

for the “corporate veil to be pierced”. In these premises, I pleaded irregularity and, in

addition, unjust enrichment (profiteering) and contravention of the Bank Act. Reasonable

doubt was raised, having these facts investigated or researched by the learned Judge; it

would have become very apparent that both these paragraphs had everything to do with the

loan agreement because its very notation or existence was to deceive me.

26. A further finding by the learned Judge Mabesele that what the bank does with its

documents should not be the concern of the respondent” is as follows: I humbly submit

that it has everything to do with the matter, in particular where I mounted evidence that the

1st Respondent had securitised the debt. It therefore lacked the appropriate right (locus

standi) to bring these proceedings. I would like to point-out to the Honourable Court that I

[50]

had pleaded the aforementioned, and the 1st Respondent through its answering affidavit,

failed to properly answer this averment.

27. During the application for leave to appeal, the 1st Respondent, represented by Advocate

Shem Symon, persisted to ridicule and belittle my representation and mentioned that the 1st

Respondent does in fact conduct its business by virtue of entering “debit” and “credit”

entries. He further conceded that the bank does deal in securitisations, and further that

these dealings have nothing to do with me, it is of no concern, and is irrelevant. He further

stated that what was important was the fact that his client, the 1st Respondent is the victim

here and was prejudiced by these proceedings.

27.1 I have stated before why these proceedings are contested, thus I will not reiterate,

other than to point-out that the 1st Respondent openly admitted that it does deal in

“debit” and “credit” entries [see Fractional Reserve System herein],and in

securitisation. Neither of these points were elaborated on, nor extended by the 1st

Respondent’s counsel. The learned Judge did not ask any qualifying questions to

the averment of the 1st Respondent in this regard. By the 1st Respondent’s own

admission, it had confirmed by my notion in defence, a point that the learned Judge

either ignored, failed to take into consideration or was oblivious to. Given this fact,

the learned Judge should have considered the grounds of my application against the

facts, having regard to the avertments of the 1st Respondent.

[51]

28. In conclusion, I submit that when the learned Judge announced his findings, he did so by

pulling a paper from his table and commenced reading from it. The impression was clearly

that the Judgment was already written or pre-prepared prior to the matter being finally

argued by the parties. This impression was also noted by several other people in court,

including Mr Sing from the Human Rights Commission, whom was observing the hearing.

28.1 It is improbable that full consideration to all the facts contained in my

representation could have been considered by the learned Judge; it is also

inconceivable that, given the circumstances, a proper finding could have been made

where the matter is one of a pivotal economic and technical nature.

29. I did not ask in any one of these proceedings to have the case dismissed against the 1st

Respondent. I simply requested, given the merits of the defence, for the matter to go to trial

so it could be considered on evidence and statement of witnesses. A trial being denied,

under these presents, offends the underlining principle of the audi alteram partem rule so

incorporated in the Constitution.

30. I submit hereinafter a summary of contraventions made by 1st Respondent:

30.1 Failure to disclose documents which the 1st Respondent is obliged to do in terms of

the National Credit Act read with the 1st Respondent’s PAJA declaration;

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30.2 Prejudice caused by the actions of the Court below by belittling me, ousting my

arguments and rejecting my evidence in Court without examination;

30.2 Failure by the 1st Respondent to produce evidence as to the appointment and

authorisation of Joop Dekker causing prejudice by the reliance on anill-founded

affidavit;

30.2.1 The Court below, by ignoring this fundamental requirement, caused me

prejudice to present proper evidence: in that the Court below relied on

evidence that bridges hearsay.

30.3 The Court below caused me prejudice by not applying its mind to the facts so

dispensed with; had proper legal investigation or enquiry been done in conjunction

with the development of common law (contract law), the facts would not of been as

alien as the 1st Respondent made it out to be;

30.4 The Court below failed to give effect to the protection granted to debtors in terms

of section 90 of the National Credit Act; which specifically disallows contractual

terms and obligations/ conditions that cause financial prejudice and arbitrary

displacement of property;

[53]

30.5 The 1st Respondent, in dealing in improper financial schemes, had indeed induced

financial displacement and prejudice by purporting that it had provided tangible

value in liquid money in exchange for repayment of tangible liquid money, with the

added burden of excessive interest. The 1st Respondent had at all material times

been fully aware, or could have been aware, or should have been aware, that it does

not have, or own such tangible liquid money, under which its claim is brought;

30.5.1 That the 1st Respondent entered into an agreement with me, where it, at

all material times had known, or should have known that it was entering

into an illiquid agreement, fully knowledgeable of the profiteering/

fraudulent consequences and subsequent financial prejudice it would

place on me; and

30.5.2 That the 1st Respondent had knowledge or could have foreseen that their

power of attorney could and would be used to sign the document

“continuing mortgage bond,” which imposes severe underlying financial

and civil prejudice; and


power of attorney could and would be used in the process of

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securitisation or security to fund and/ or stand as security for creating

their own loan; and


power of attorney would be used, in due course to fund my home loan;

and

30.5.5 That the 1st Respondent acted as “intermediary” or “broker” as the case

might be, therefore disallowing any actions I could have taken against

them in terms of these premises, thus causing me financial prejudice; and


power of attorney/ or loan agreement will be used in the secret

application of financing through the likes of securitisation and/ or

fractional reserve system and/ or seigniorage. Such funding would

generate income that could have benefited my financial position, but was

not disclosed and was deliberately withheld from me, thus causing me

financial prejudice; and


power of attorney/ home loan agreement will be used in generating

[55]

funding or funds without my knowledge, permission or explicit consent;

and


power of attorney would be used to generate a loan with benefits of self-

enrichment (undue enrichment) had failed and/ or neglected to disclose

this fact, therefore causing me financial prejudice.

31. The 1st Respondent misrepresented itself, on the premise of the loan agreement, that it is

the holder (in liquid form of money) and is both willing and able to ‘lend’, where at all

material times it was aware or should have been aware that this averment is untrue,

misrepresented or faculty false;

31.1 In addition to the aforementioned, the 1st Respondent placed audio visual and print

media advertisements into the market where it purports to be the lender of money

and giver of mortgage loans, where the contrary is true. This false impression led

me to believe that I was, in fact, coerced into taking my business to 1st Respondent

as it was one of only a limited few that has such ability.

32. The 1st Respondent misrepresented itself before the Court below when it elected to plea in

its answering affidavit, that it does not understand my defence. It was fully aware or should

have been aware, that the proper authoritive person should have acted on the 1st

[56]

Respondent behalf. Such person should rightfully have known and disclosed that it was

acting in such securitisation transactions and/ or fund/ financial principles as per annexure

“MT 5” and “MT 6”. The 1st Respondent therefore had caused undue, unnecessary court

procedures causing financial prejudice and the withholding of proper adjudication.

33. Given the facts aforesaid the 1st Respondent had acted in such manner and in such context

that it is in breach of its fiduciary responsibility toward me.

34. Having regard to the principles of Seignorage and the Fractional Reserve System, the 1st

Respondent is in breach of the in duplum rule, as its interest is based on illiquid accounting

entries that are not backed by any liquid, sounding in money, in its so-called loan to me.

35. Considering the aforementioned, the 1st Respondent caused me irrevocable prejudice as I

completed my yearly account based on liquid money for presentation to the South African

Revenue Service based on the loan agreement. The facts now indicate that same was never

liquid.

36. The principles of cession and other undue financial trading of my security caused me

prejudice as I do not know who the holder of my bond is, or the whereabouts of the

security. Questions arise such as: is such entity sound in business or liquid to the extent

that my property might be under risk of liquidation or other contractual obligation?

[57]

POINTS RAISED IN THE COURT A QUO:

37. I have raised the following points as per annex “MT 2” page 385 to 392 read with “MT 3”

pages 393 to 460;

INTRODUCTION TO BUSINESS OF THE BANK

38. The Bank Act, Act 94 of 1990 specifically excludes the bank from engaging in

securitisation where it is the holder of such security or has a vested interest in such

security. The latter averment was emphasised by notice in the Government Gazette [No.

30628, Volume 511, January 2008] which amends the Bank Act by changing the “business

of a bank” ~ [Section 1, “definition”] to exclude securitisation from the “business of the

bank”.

38.1 Furthermore a Bank is precluded from using its client’s ‘deposits’ for loans and are

furthermore restricted in how it utilises its “allocated capital and reserve funds” and

other funds in terms of sections 70(2), 70(2A) and 70(2B). These prescriptions

follow through and are further defined in the South African Reserve Bank Act, Act

90 of 1989.

38.2 Commercial banks, invest their money with the South African Reserve Bank and

the interest received on such investments is called ‘seigniorage’.

[58]

38.3 Ordinarily seigniorage is an interest-free loan (historically of gold) to the issuer of

the coin or paper money. When the currency is worn out, the issuer buys it back at

face value, thereby balancing exactly the revenue received when it was put into

circulation, without any additional amount for the interest value of what the issuer

received.

38.4 The solvency constraint of the South African Reserve Bank only requires that the

present discounted value of its net ‘non-monetary liabilities’ (separate from its

monetary liabilities accrued through seigniorage attempts) be zero or negative in

the long run. Its monetary liabilities are liabilities only in name, as they are

irredeemable: the holder of base money cannot insist at any time on the redemption

of a given amount of base money into anything else other than the same amount of

itself (base money); unless, of course, the holder of said base money is another

Reserve Bank/ Federal Reserve Bank reclaiming the value of its original interest-

free loan.

38.5 Currently over half the revenue of Zimbabwe is in seigniorage. Zimbabwe has

experienced hyperinflation, with the annual rate at about 24,000% in July 2008,

indicating that prices would double every 46 days.

[59]

38.6 Currently notes and coins represent 5 to 6%in the market place, the remaining 94 to

95% are generated by banks, who loan against their share capital and reserves

which the banks invest in property, short term assets and so on.

38.7 Until 1980 the South African Reserve Bank would issue directives as to the amount

of reserves relative to the duration of the loan, the volume of credit advanced and

the maximum growth rate at which credit extension could increase.

38.8 Within the framework of co-operation between the South African Reserve Bank

and Commercial Banks, a bank can loan what it has put into circulation, without

providing any additional amount for the interest value of what the issuer received.

38.9 Thus, a loan from the South African Reserve bank to a bank is interest free, less the

cost of the manufacturing (print) of the note. This equates to a 95% interest free

loan.

38.10 From the aforementioned two particular legal questions are raised:-

38.10.1 The bank, in this instance the 1st Respondent, was not the institution that

loaned in the first instant as it had presented itself to me, via press

media and its home loan agreement. In other words, the 1st Respondent

only obtained the required funding once I had completed and signed the

[60]

necessary contracts. Therefore, by non-disclosure in the contract, the 1st

Respondent failed the very basic requirement in contract law; that is, its

true stance was that of an intermediary and not the physical lender of

money. It therefore can also be said that there could have never been a

true ‘consensus’ between the parties or “meeting of the minds.”

38.10.2 In conjunction to the aforementioned, the 1st Respondent did not have

the necessary ‘capacity’ to act in the first instance, as it only became the

holder of ‘money’ after the fact (conclusion of agreement).

38.10.2.1 I could not have had ‘consensus’ as the 1st Respondent,

fully knowledgeable of its lack of money, did not disclose

these facts. What the 1st Respondent had in mind and what I

had at mind were two very separate and very distinct ideals.

38.10.2.2 The 1st Respondent lacked the ‘capacity’ to act, due to the

fact it only became the holder of what was borrowed after

the conclusion of the contract; It, the 1st Respondent,

therefore was never in possession of what was presented as

‘being’ in their possession prior to the contract being

concluded. In other words, the transaction was subjected to

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them obtaining the funds from another, the South African

Reserve Bank.

38.10.2.3 For the 1stRespondent to have the appropriate and correct

status, the contract should have clearly stated that it is

acting as “intermediary” or “broker”, subject to the

Respondent obtaining a loan from the South African

Reserve Bank. This fact is not disclosed in the

1stRespondent’s contract.

38.10.2.4 In addition, the 1st Respondent does not disclose this fact, or

any third party association, anywhere, period.

38.11 The 1st Respondent in this regard will argue, as they have done before, that the

relationship between themselves and that of the 2nd Respondent is one conjured in

terms of legislation. Thus the 1st Respondent, like other banks, are exclusively and

uniquely authorised to utilise the future “advancement” of loans at a fraction of the

apparent cost of money, i.e. almost free. Their argument, with due respect, has

nothing to do with the fact that the 1st Respondent still acts as ‘intermediary’ or

‘broker’, irrespective of their special legislative relationship. As such, they cannot

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escape their common law and fiduciary duty to provide full disclosure of all

material facts.

38.12 It is the 1stRespondent whom is required in law, inter alia, the National Credit

Act(34 of 2005), Consumer Protection Act(68 of 2008), the latter all deriving its

legislative inauguration from the South African Constitution, 1996, to disclose all

material facts to a consumer so to enable a consumer to make an informed decision.

38.12.1 The requirements to disclose, which contention was in particular raised

in the Court below, was relevant and important as the lack of disclosure

raises questions as to the true intent of the 1stRespondent.Myalludement

is that the 1st Respondent is not disclosing these facts for the following

reasons;

38.12.1.1 Its gain in interest, comprising of almost 90% profit; and

38.12.1.2 The 1stRespondent, not being compelled by legislation to

disclose such transactions.

38.13 The facts stated above remain intact, irrespective if the 1stRespondent had utilised

its credit with the 2nd Respondent or “other” security to obtain the loan, as it had

masked their truthful role as intermediary or broker.

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38.13.1 The 1st Respondent, acting in any other principal other than that which

is allowed in the Bank Act, contravenes the outlining prescription of the

“business of the bank”; if it acts as intermediary, it needs to conform

with such legislation and other governing subordinate rules and policies

as would apply to these industries.

38.13.1.1 Having regard to the proposition above, the 1st Respondent,

in acting as intermediary or broker, circumvents the

requirements set out in legislation for such industries;

therefore it flies under the radar.

39. When the 1stRespondent obtained a ‘loan’ from the 2nd Respondent, it received same as

South African Reserve bank “bonds” which closely resemble ‘promissory notes’. No liquid

money passes from one bank to another, but rather a debit and credit entry takes place in

the accounting records of each institution. The latter entries are then followed through to

the eventual borrower, attracting escalating costs and interest along the way. In this regard

the Honourable Court’s attention is drawn to annexure “MT 16” read with “MT 6”, “MT

7” and “MT 12” and “MT 13”.

39.1 Due to the 1stRespondent’s use of electronic methods, it has become highly

proficient at debiting and crediting accounts with nothing more than “nothing.”

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39.1.1 To illustrate the point above, where “liquid money/ cash money” is

required, the 1stRespondent would simply place such funds into the

possession of the drawer from reserved funds. However, in all other

transactions (such as the advancement of credit)it will simply pass a

‘credit’ or ‘debit’ as required, or pass it along to the recipient’s bank

account. This is achieved by the very same technology we have become

so accustomed to. This is so if consideration is given to the Financial

Markets Bill, annex “MT 22” hereto.

40. The 1st Respondent will raise the argument, as it has done in the Court below, that these

processes suffer no prejudice to the lender; I submit that the contrary is true due to

mathematic calculations utilised in this process. The following serves as an example;

40.1 If Bank A’s total exposure is one billion and it requires additional ‘capital’ to

extend and uphold its business for the next year, Bank A will ‘borrow’ from the

South African Reserve Bank ‘bonds’ or ‘credit notes’ at close to 5% of its face

value or less. It will then enter these “bonds” into the accounts of their clients

whom have borrowed from Bank A. These clients are now obliged to affect ‘liquid

money’ as repayment, first towards interest then to capital.

40.2 The requirement for ‘liquid money’ repayments by the clients is to;

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40.1.1 Replenish the 1stRespondent’s reserves; and

40.1.2 To receive a credit from the 2nd Respondent on the return of these notes.

41. The principles followed by the 1st Respondent and 2nd Respondent jointly eradicate sound

business principals and ethics as the 1st Respondent profiteers horizontally and vertically.

Horizontally, it gains from the interest it earns and vertically, it gains from returning liquid

money to the 2nd Respondent. Thus, it could be said that the banks earn 100% profit on

loans it makes, with no particular risk. See annexure “MT 13” read with “MT 14” and

“MT 16”, also the principals contained in the GEAR policy, annex “MT 17” hereto.

41.1 This places an unreasonable financial prejudice onto the borrower, so much so, that

the legislature has asymmetrically authorised the Banks, like the 1stRespondent, to

print proverbial money at leisure at my expense and factual financial prejudice to

me. See “MT 12” hereto.

41.1.1 The 1st Respondent pounced onto me, demanding its fulfilment of contract,

arbitrarily so, considering the facts aforementioned.

42. The 1st and 2nd Respondent have exclusive access to this money making capability, which

diminishes true competiveness in the market. Although each bank is structured differently,

the mathematics remain the same, which equals no more than 1% difference in borrowings.

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The legislative prescription does not allow for healthy competition; to the contrary it

causes a manifestation of corporate collaboration that monopolises the banks.

43. Given the facts aforementioned, consideration must be given that the 1stRespondent’s

claim would, in effect, be incorrect. Its claim in liquid money has no basis, as the

fundamental aspect is that they did not lend liquid money. It was no more than a simulated

promissory note, entered as a debit/ credit entry.

44. The 1st Respondent’s certificate of balance is based on liquid money that clearly could not

be the foundation of its claim which is fictional and untenable, lacking the very strict

definition of liquidity on demand.

45. It follows that the claim of the Respondent would be in contravention of the In Duplum

Rule, so much so, that the interest charged would in fact be null and voidable as [a] the

liquid money never received entry into the books of the Respondent, and in the alternative

[b] interest charged on the capital is based on an illiquid transaction.

BANK CREDIT

46. It is common cause, but not general public knowledge, that banks conclude ‘bank credit’

with their clients as illustrated here. A client borrowed R10, 000 from a bank. The bank in

return opened for that client a checking account for R10, 000, gave him a checkbook, and

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told the client that he can now write out checks for an amount up to R10, 000. The bank,

for its part, wrote in its books a deposit of R10, 000 and a liability of R10, 000. When a

loan is made in this manner, the bank has created R10, 000 worth of new bank credit “out

of thin air.” The bank did not give out any of its own money, nor out of its reserves, or any

of its depositors’ money. But the bank credit money (checks that the client/ borrower

would write out) would buy goods and services in the same manner as real/ liquid9 money

that someone had earned. See annexure “MT 11”, “MT 7” and “MT 21”.

46.1 If the collateral/security pledged for that loan contained items that the client/

borrower was about to sell, then that bank credit money would not be inflationary10,

because goods were available to be claimed by it. However, if the collateral

security were items such as the client’s vehicle or house, which the client did not

intend to sell, then that bank credit money could be inflationary.

46.2 The bank credit money was not earned by anyone. It was not earned by the bank

and it was not earned by any of the depositors, it was just a bookkeeping entry.

9Cash such as coins, notesthat are tangible.

10In economics, inflation is a rise in the general level of prices of goods and services in an economy over a period of time. When the general price level rises, each unit of currency buys fewer goods and services. Consequently, inflation also reflects erosion in the purchasing power of money – a loss of real value in the internal medium of exchange and unit of account in the economy. A chief measure of price inflation is the inflation rate, the annualized percentage change in a general price index (normally the Consumer Price Index) over time.

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46.3 When the loan is paid back by the client, the bank credit money will no longer

exist. The bank’s books will show a decrease of deposits and liabilities of R10 000

each. It also will show a profit of the amount of interest it received for the loan of

its bank credit, or for its bookkeeping transactions.

46.4 It is projected that as much as 90% of all the buying and selling in South Africa is

done with interest-bearing bank credit.

46.5 Within these premises it is important to note that the word money is frequently

applied to anything that is used as a medium of exchange. In the past, many items

have served as media of exchange, such as gold, silver, cattle, grain, salt, notes, and

checks, certificates of credit, postage stamps and so forth.

46.6 In South Africa, the power to mint coins and notes has been passed on to the South

African Reserve Bank in terms section 10(1)(a)(i) - (v) of the South African

Reserve Bank Act (90 of 1989).

SECURITISATION:

Annexure “MT 5”, “MT 6”, “MT 7”, “MT 8” to “MT 10” and “MT 11”

47. Securitisation is the financial practice of pooling various types of contractual debt such as

residential mortgages, commercial mortgages, auto loans or credit card debt obligations

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and selling said consolidated debt as bonds, pass-through securities, or collateralised

mortgage obligation [CMOs], to various investors. The principal and interest on the debt,

underlying the security, is paid back to the various investors regularly.

48. Securities backed by mortgage receivables are called mortgage-backed securities (MBS),

while those backed by other types of receivables are asset-backed securities (ABS).

49. As stated supra, paragraph 13 hereof, it is not the ‘business of the bank’ to engage in or

deal in securitisation of its own contractor assets. The Respondent is prohibited from such

activities.

50. The 1stRespondent has confirmed this notation in many submissions. See annex “MT 1”

and “MT 3” hereto. Paragraph 1 of this publication reads as follows: “SA Home Loans

(“SAHL”) is not a bank and does not accept deposits from the public. As such, in order to

be able to fund the home loans which are given out to clients, SAHL (South African Home

Loans) has set up a securitisation funding platform.” and at paragraph 3 “The capital

markets are where long term funding (greater than one year in duration) can be obtained

and it is, as such, the place where many lenders, banks included, would obtain long term

funding for their longer term assets (such as home loans).”It should be pointed out that the

1st Respondent is the majority shareholder of SA Homeloans.

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51. To achieve the aforementioned, the process would in most instances be one where a

suitably large portfolio of assets is "pooled" and transferred to a "special purpose vehicle"

or "SPV." The SPV (the issuer), is a tax-exempt company or trust formed for the specific

purpose of funding the assets. Once the assets are transferred to the issuer, there is

normally no recourse to the originator. The issuer is "bankruptcy remote," meaning that if

the originator goes into bankruptcy, the assets of the issuer will not be distributed to the

creditors of the originator. In order to achieve this, the governing documents of the issuer

restrict its activities to only those necessary to complete the issuance of securities.

52. Accounting standards govern when such a transfer is a sale, a financing, a partial sale, or a

part-sale and part-financing. In a sale, the originator is allowed to remove the transferred

assets from its balance sheet: in a financing, the assets are considered to remain the

property of the originator. Under South African accounting standards, the originator

achieves a sale by being at arm's length from the issuer, in which case the issuer is

classified as a "qualifying special purpose entity" or "qSPE".

53. For a bank, like the 1st Respondent it will be required to bundle the security (a bond

registered over the title deed) with other agreements and assign the rights and title over to

the particular securitisation broker or company. See annexure aforesaid. Within these

premises, one will note that the 1st Respondent (bank) loses its rights and title to the

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security which results in the 1st Respondent’s lack of locus standi in the proceedings in the

Court below.

54. The originator (the 1st Respondent) initially owns the assets engaged in the deal. This is

typically a company looking to raise capital, restructure debt or otherwise adjust its

finances. Under traditional corporate finance concepts, such a company would have three

options to raise new capital: a loan, bond issue, or issuance of stock. However, stock

offerings dilute the ownership and control of the company, while loan or bond financing is

often prohibitively expensive due to the credit rating of the company and the associated

rise in interest rates.

55. If for any reason the 1st Respondent claims that it has the proper locus standi, it had, in any

event failed to do so proper in their surmising proceedings;

56. Once again, the 1st Respondent finds itself in a precarious position, as it once again was not

the original ‘moneylender’, but rather an “intermediary” with the added negative legal

standing of lacking locus standi;

57. The 1st Respondent now also benefits from the transaction of securitisation two folded: ~

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57.1 The 1st Respondent gains furthers loan capacity as it has rid its debt and its

exposure to entertain more loans to the public without my knowing participation;

and

57.2 Commissions or interest are earned by the 1st Respondent of securitisation

transactions; in other words, over and above earning in receivables from me it now

earns income from securitisation as can be seen annexure “MT 5” to “MT 7”

hereto. Securitisation makes it possible to record an earnings bounce without any

real addition to the firm. When a securitisation takes place, there often is a "true

sale" that takes place between the Originator (the parent company) and the SPE.

This sale has to be for the market value of the underlying assets for the "true sale"

to stick and thus this sale is reflected on the parent company's balance sheet, which

will boost earnings for that quarter by the amount of the sale. While not illegal in

any respect, this does distort the true earnings of the parent company.

58. I had signed a limitless power of attorney authorising the 1st Respondent to dispense with,

inter alia, registration of a bond onto the title deed of the property, thus, the deed will form

part of security held by 1st Respondent against the loan. However, the registration of the

bond together with the power of attorney is utilised by the 1st Respondent to gain funding

from processes mentioned above and below. The 1st Respondent therefore does not (and

the power of attorney stipulates as much) require any further authority from me. The result

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being that I am in toto removed from any transaction the 1st Respondent concludes with

securities given by me.

59. I contend that the power of attorney was given explicitly for the exclusive use to register a

bond, and nothing more, therefore the use of the power of attorney in any other

formulations are without consent, authority and such use is in conflict with the National

Credit Act and law in general use, e.g. law of contract.

60. If such signature had been used, or in the alternative assigned to any other process of

securitisation or in its third alternative to gain funds or loans relating to securitisation, or in

its fourth alternative gain any benefit or in its fifth alternative placed an obligation on me,

the 1st Respondent had done so without explicit permission from me and the 1stRespondent

is in violation of the fiduciary relationship as between me and 1stRespondent (as banker)

and in terms of the Bank Act.

61. Had the 1st Respondent gained from any securitisation, aforementioned, I am entitled to

share in such profits, notwithstanding the fact that such profits would effectively lessen my

liability to the 1st Respondent.

62. The process of securitisation caused prejudice towards me as, unknown to me, another

becomes the holder of its security (bond) and therefore the risk arises that such security can

be called-up under any judicial process like liquidation or administrative orders;

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62.1 The opposite of the above, any income derived from securitisation is deliberately

withheld from me, or will never be brought to my attention as acknowledgement of

such securitisation process has been withheld from me by the 1stRespondent, so

much so, that the 1st Respondent is not even prohibited from making such entries

into the accounting books of the 1stRespondent.

63. The process of securitisation deprives me of knowledge as to who the true creditor is. As

such, its financial exposure, inter alia, could include the 1stRespondent acting as

intermediary and/ or collecting agent for a third party whom could, once again, earn

collection commission when acting as intermediary/ collecting agent.

63. Lastly, when the 1stRespondent entertains processes like securitisation, why is it held so

secretively; the subject matter being protected most vigorously by the 1st Respondent. The

only conclusion is that there is collusion between the parties that can only equate to

profiteering. If, which I contend it is not permitted in terms of how the 1stRespondent deals

therein, securitisation is allowed, why is it not disclosed or public knowledge?

64. Thus application for summary judgment must fail and the 1stRespondent must amend its

application proper; In this regard the Honourable Judge failed to realise that the defence so

offered by me is technically difficult, obscured by generality, implied contract law

remedies and the bone of contention is that what is contained in defence is further

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frustrated by the 1stRespondent’s unwillingness to go beyond its contract of loan, holding

same as a proverbial shield from the seriousness of the allegations made by me.

SEIGNORAGE:

See annexures “MT 12” hereto.

65. This subject matter co-exists with the foregoing paragraphs and the, “Business of the

Bank”, supra, discussed separately due to its fundamentals being difficult to comprehend

and/ or appreciated.

66. Seignorage can be defined as one of the following as it relates to these proceedings;-

66.1 Historically, if a person has one ounce of gold, he trades it for a ‘government-

issued gold certificate’ (providing for redemption in one ounce of gold), keeps that

certificate for a year, and then redeems it in gold. That person ends up with exactly

one ounce of gold again. No seigniorage occurs. [A historical view of the aforesaid

is available and as such will be made available is so needed.]

66.2 Instead of issuing gold certificates, a government converts gold into currency at the

market rate by printing paper notes. A person exchanges one ounce of gold for its

value in currency. They keep the currency for one year, and then exchange it all for

an amount of gold at the new market value. This second exchange may yield more

or less than one ounce of gold if the value of the currency relative to gold has

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changed during the interim. (Assume that the value or direct purchasing power of

one ounce of gold remains constant through the year.)

66.2.1 If the value of the currency relative to gold has decreased, then the person

receives less than one ounce of gold, thus seigniorage occurred.

66.2.2 If the value of the currency relative to gold has increased, the redeemer

receives more than one ounce of gold thus seigniorage did not occur.

66.2.3 Seigniorage, therefore, is the positive return on issuing notes and coins, or

"carry" on money in circulation.

66.2.4 The opposite, "cost of carry", is not regarded as a form of seigniorage.

66.3 Ordinary seigniorage can be defined as an ‘interest-free loan’, for instance, of gold,

to the issuer (South African Reserve Bank) of the coin or paper money. When the

currency is worn out, the issuer buys it back at face value, thereby balancing

exactly the revenue received when it was put into circulation, without any

additional amount for the interest value of what the issuer received.

66.4 Historically, seigniorage was the profit resulting from producing coins. Silver and

gold were mixed with base metals to make durable coins. Thus the British

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"sterling" was 92.5% pure silver; the base metal added (and thus the pure silver

retained by the government mint) was (less costs) the profit, the seigniorage.

66.5 Currently, under the rules ‘governing monetary operations’ of major central

banks(including the central bank of the USA and in similarity the South African

Reserve Bank), seigniorage on bank notes is simply defined as the interest

payments received by central banks on the total amount of currency issued. This

usually takes the form of interest payments on ‘treasury bonds’ purchased by

central banks, putting more Rands into circulation. However, if the currency is

collected, or is otherwise taken permanently out of circulation, the back end of the

deal never occurs (that is, the currency is never returned to the central bank). Thus

the issuer of the currency keeps the whole seigniorage profit, by not having to buy

worn out issued currency back at face value.

66.6 The solvency constraint of the 2nd Respondent only requires that the present

discounted value of its net non-monetary liabilities (separate from its monetary

liabilities accrued through seigniorage attempts) be zero or negative in the long

run. Its monetary liabilities are liabilities only in name, as they are irredeemable:

the holder of base money cannot insist at any time on the redemption of a given

amount of base money into anything else other than the same amount of itself (base

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money); unless, of course, the holder of said base money is another central bank

reclaiming the value of its original interest-free loan.

66.7 To illustrate the aforementioned points, in relation to modern day application of

seigniorage, would be to reference “Slate Online” comments on 29th of July 2011,

regarding the 2011 United States of America debt ceiling crisis. The author

suggested that the United States of America Government mint a US$5 trillion coin,

deposited the said mint with the Federal Reserve and used to buy back debt thus

making funds available. The author, whom in-effect suggested seigniorage was not

off-beat, as it later appeared that the United States of America caused such a bail-

out for its bankers, thus it created money out of nothing.

67. Seigniorage is a concept utilised throughout financial history over decades, the only

difference is that modern seigniorage does not have physical “liquidity” like gold as the

exchange principal; this has been replaced by axiomatic “I owe you notes”.

68. To further illustrate the points above and below, the Basel Reports emanating from the

Global Regulator, USA, which formulates the standard on bank capital adequacy, stress

testing and market liquidity risk agreed upon by the members of the Basel Committee on

Banking Supervision. Currently the Basel III (see annexure “MT 7” hereto) report is the

operative guideline internationally. These reports have been excluded from this application

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due to their volumes being extensive; however copies of Basel II and III shall be made

available at the hearing of this matter. A report by Deloitte has been annexed hereto as

“MT 7” as further referencing material.

69. The 1stRespondent, having required a loan from the 2nd Respondent in the historical sense

of seigniorage, had incurred nothing more than the printing cost of the ‘currency’, its

return value to balance the books, thus the loan was zero rated in interest; in the alternative

the Respondent had accounted a loan based on “bonds”, zero rated in interest, however

there is no seigniorage to be earned. See paragraph 24.2.4 supra.

FRACTIONAL RESERVE SYSTEM:

See annexures “MT 13”, “MT 14” and “MT 15”, read with “MT 17”

70. By definition, Fractional Reserve System forms part of banking where banks maintain

reserves (of cash and coin or deposits at the central bank) that are only a fraction of the

customer's deposits. Funds deposited into a bank are mostly lent out, and a bank keeps

only a fraction (called the reserve ratio) of the quantity of deposits as reserves. Some of the

funds lent out are subsequently deposited with another bank, increasing deposits at that

second bank and allowing further lending. As most bank deposits are treated as money in

their own right, fractional reserve banking increases the money supply, and banks are said

to create money. Due to the prevalence of fractional reserve banking, the broad money

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supply of most countries is a multiple larger than the amount of base money created by the

South African Reserve Bank. That multiple (called the money multiplier) is determined by

the reserve requirement or other financial ratio requirements imposed by financial

regulators, and by the excess reserves kept by commercial banks like the 1stRespondent.

71. The South African Reserve Bank generally mandates reserve requirements that require

banks to keep a minimum fraction of their demand deposits as cash reserves. This both

limits the amount of money creation that occurs in the commercial banking system, and

ensures that banks have enough ready cash to meet normal demand for withdrawals.

71.1 Problems can arise, however, when depositors withdraw a large proportion of

deposits simultaneously; this can cause a bank run or, when problems are extreme

and widespread, becomes a systemic crisis. To mitigate this risk, the governments

of most countries (usually through their Central Bank) regulate and oversee

commercial banks, provide deposit insurance and act as lender of last resort to

commercial banks like the 1stRespondent.

71.2 Fractional reserve banking is the most common form of banking and is practiced in

almost all countries, including South Africa. Although Islamic banking prohibits

the making of profit from interest on debt, a form of fractional reserve banking is

still evident in most Islamic countries. It must be noted that the 1st Respondent, like

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ABSA Bank Limited and First National Bank Limited have Islamic accounts

separated from the norm.

71.3 The nature of modern banking is such that the cash reserves at the bank available to

repay demand deposits need only be a fraction of the demand deposits owed to

depositors. In most legal systems, a demand deposit at a bank (e.g., a checking or

savings account) is considered a loan to the bank (instead of a bailment), see Bank

Act, repayable on demand that the bank can use to finance its investments in loans

and interest bearing securities. Banks make a profit based on the difference

between the interest they charge on the loans they make, and the interest they pay

to their depositors (aggregately called the net interest margin (NIM)). Since a bank

lends out most of the money deposited, keeping only a fraction of the total as

reserves, it necessarily has less money than the account balances of its depositors.

71.4 The main reason customers deposit funds at a bank is to store savings in the form

of a demand claim on the bank. Depositors still have a claim to full repayment of

their funds on demand even though most of the funds have already been invested

by the bank in interest bearing loans and securities. Holders of demand deposits can

withdraw all of their deposits at any time. If all the depositors of a bank did so at

the same time a bank run would occur, and the bank would likely collapse. Due to

the practice of the 2nd Respondent, this is a rare event today, as the2nd Respondent,

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usually guarantees the deposits at commercial banks, and acts as lender of last

resort when there is a ‘run on a bank’.

71.5 As an example for a very simple idea of how the fractional reserve system can

work is as follows: if there is only one bank, for a Reserve Fraction of 10%, a bank

can turn R1, 000.00 deposit “M0” of money, into R18, 997.00 of "M1" money.

Ignoring interest & fees, which makes banks even more profitable, this is how a

bank can copy 90% of "M0" money to make "M1" money, where in this example

the money loaned out is simply re-deposited in the bank and loaned out again, and

so on, that is how the R18, 997.00 "M1" money comes from the R1, 000.00 of

"M0" money. Banks, like the Respondent do this by accumulating loans and

deposits (effectively multiplying) the "M0" supply to make a larger "M1" supply.

Banks can collect interest on the spread of the higher loan interest from the lower

deposit interests. Return on Investment (ROI) for a bank is theoretically infinite

considering the bank is using none of its own money, if one excludes the cost of

setting up and maintaining the accounting system.

PREJUDICE CAUSED TO ME:

72. If a ‘bank run occurs’, like that of the ‘Northern Rock’ crisis of 2007 in the United

Kingdom. The collapse of ‘Washington Mutual’ bank in September 2008, the largest bank

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failure in history, was preceded by a "silent run" on the bank, where depositors removed

vast sums of money from the bank through electronic transfer. In this regard see annexure

“MT 18” read with “MT 19”, “MT 21” and “MT 20”.

73. In a normal economic environment, cash is steadily being introduced into the economy by

the 2nd Respondent. See annex “MT 18” hereto. Given the facts of financial crises across

the Globe, there seems to more and more concerns that the Fractural Banking System will

fail, causing Governments to bail out more and more bankers at the expense of the public,

despite the 1stRespondent and alike profiteering in billions. Is it is up to this Honourable

Constitutional Court to take into account, or at least be aware of, the potential threat that

such a system poses to society, and thus act in the best interest of the large body of citizens

who stand to lose drastically as a result of such a systemic failure.

73.1 If creditors are afraid that the bank is running out of cash or is insolvent, they have

an incentive to redeem their deposits as soon as possible before other depositors

access the remaining cash reserves before they do, triggering a cascading crisis that

can result in a full-scale bank run. The aforementioned scenario has had its reality

when the 20Twenty Bank was placed in liquidation; its bailouts were stupefied,

leaving the public to fend for themselves, thus the victim.

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73.2 Currently, policy papers and the state of Governance have inadequate funds to

maintain roads, municipal services and basic education, the Government therefore

does not sit in any position to cause a financial bailout should any one of the

events, supra, take place. In particular a 75 Billion rand exposure for the 1st

Respondent.

73.3 Redressing of such a failure can be seen in the events of Iceland and related

problems in their own home loan industries. These avertments are too voluminous

to include herein and also consist of video footage. Such will be made available at

the proceedings should the Honourable Court require so. See annex “MT 20” page

885 to 886 hereto.

ARTIFICIAL MONEY CREATION:

74. Money creation, as pleaded by me in proceedings before this application, has been rejected

and booted as an argument held by cults, ignorant laymen and outbursts of utter nonsense.

It would seem that history seems to be an untold story when these avertments are made; as

such possibilities seem surreal in an open and democratic society, like South Africa.

Therefore some time will be spent on explaining how money creation happens at banks

and that of the Respondent.

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75. The relending model begins when an initial R100 deposit of the South African Reserve

Bank money is made into Bank A. Bank A takes 20 percent of it, or R20, and sets it aside

as reserves and then loans out the remaining 80 percent, or R80 to other customers of the

same bank.

76. At this point, the money supply actually totals R180, not R100, because the bank has

loaned out R80 of the South African Reserve Bank money, kept R20 of South African

Reserve Bank money in reserve (not part of the money supply), and substituted a newly

created R100 ‘IOU’ (I owe you) claim for the depositor that acts equivalently to and can be

implicitly redeemed for South African Reserve Bank money (the depositor can transfer it

to another account, write a check on it, demand his cash back, etc.). These claims by

depositors on banks are termed demand deposits or commercial bank money and are

simply recorded in a bank's accounts as a liability (specifically, an IOU to the depositor).

From a depositor's perspective, commercial bank money is equivalent to South African

Reserve Bank money – it is impossible to tell the two forms of money apart unless a ‘bank

run’ occurs (at which time everyone wants South African Reserve Bank money).

77. At this point in the relending model, Bank A now only has R20 of South African Reserve

Bank money on its books. The loan recipient is holding R80 in South African Reserve

Bank money, but he soon spends the R80. The receiver of that R80 then deposits it into

Bank B.

[86]

78. Bank B is now in the same situation as Bank A started with, except it has a deposit of R80

of South African Reserve Bank money instead of R100. Similar to Bank A, Bank B sets

aside 20 percent of that R80, or R16, as reserves and lends out the remaining R64,

increasing money supply by R64. As the process continues, more commercial bank money

is created.

79. To illustrate the above a chart representing the transactions above follows: (as per loans

between banks)

Bank Amount Deposited Lend Out Reserves

A 100 80 20

B 80 64 16

C 64 51.20 12.80

D 51.20 40.96 10.24

E 40.96 32.77 8.19

F 32.77 26.21 6.55

G 26.21 20.97 5.24

[87]

H 20.97 16.78 4.19

I 16.78 13.42 3.36

J 13.42 10.74 2.68

K 10.74 -- --

Total 457.05 357.05 100

Total Reserves ... 89.26

80. Although no new money was physically created in addition to the initial R100 deposit,

new commercial bank money is created through loans. The two boxes marked in italics

show the location of the original R100 deposit throughout the entire process.

81. The total reserves plus the last deposit (or last loan, whichever is last) will always equal

the original amount, which in this case is R100. As this process continues, more

commercial bank money is created. The amounts in each step decrease towards a limit. If a

graph is made showing the accumulation of deposits, one can see that the graph is curved

and approaches a limit. This limit is the maximum amount of money that can be created

with a given reserve rate. When the reserve rate is 20%, as in the example above, the

[88]

maximum amount of total deposits that can be created is R500 and the maximum increase

in the money supply is R400.

82. Considering the magnitude and scale at which money is created, one can simply not ignore

that commercial banks, like the 1stRespondent, are directly the cause of increase and

decrease of loan rates. Fractional reserve banking allows the money supply to expand or

contract.

83. Generally the expansion or contraction of the money supply is dictated by the balance

between the rate of new loans being created and the rate of existing loans being repaid or

defaulted on. The balance between these two rates can be influenced to some degree by

actions of the 2nd Respondent.

84. Returning to the contention I have shown from inception of these cases, one cannot simply

ignore the facts above and expect to be profiteered on; and, when called-upon to make

good an agreement which was designed to circumvent liability, disable defences, and

condone activities that beg justification as to why a system of such gross infringement and

prejudice could exist in an open democratic society, I do expect the courts to be impartial

and evaluate all arguments meticulously, and in my case recognise the real merit in my

sometimes complicated arguments. See annexures “MT 7” read with “MT 5”, “MT 6” and

“MT 17”.

[89]

85. I persist as follows: I do not want any privilege or discount in these proceedings, other than

justification as to why the 1stRespondent is allowed to charge exuberant fees and interest

on what in fact does not exist tangibility; and why I must give way to its property, a

guarantee in terms of the Constitution, which should stand above the might of the

1stRespondent profiteering/ unjust enrichment.

86. The actions of the 1stRespondent described supra amount to contravening of section 1 read

with section 78 of the Bank Act, which prescribes “undesirable practice”.

87. Forfeitures amounting to arbitrary deprivations of property should not occur where the

1stRespondent has more than doubled on its profits as would directly infringe upon the

rights to property in terms of the Constitution.

INFERENCE OF FIDUCIARY:

88. The Respondent owes me a duty to be treated honestly, to be informed of all material

matters before and during the existence of the contract and even thereafter; and not to

profit additionally from my transaction and security. When one person stands in relation to

another in a position of confidence involving a duty to protect the interests of that other

person, he or she is not allowed to make a secret profit at the other's expense, or to place

himself or herself in such a position that his or her interests conflict with his or her duty.

Such a claim may arise because of a breach of contract or in delict as the case was in

[90]

Daewoo Heavy Industries (SA) (Pty) Ltd v Banks [2004] 2 All SA 530 (C), 2004 865 (4)

SA 458 (C), Da Silva v CH Chemicals (Pty) Ltd [2009] 1 All SA 216 (SCA), 2008 (6) SA

866 620 (SCA).

89. To establish a breach of a fiduciary duty, I must allege facts from which the existence of

such a duty can be deduced. For instance, I can rely on the relationship between principal

and agent, of a guardian to a ward, director to a company or an attorney to a client or in

this instance, the 1stRespondent to me.

90. The scope and ambit of the duties imposed on the 1stRespondent, in this case the duties are

implied (duties that derive ex lege) and arise in the context of the contract that defines the

relationship between the parties.

91. Furthermore, the case of Slip Knot Investments 777 (Pty) Limited v Project Law Prop

(Pty) Limited and Others (36018/2009) [2011] ZAGPJHC 21 (1 April 2011). Has

particular reference to illustrate the Court’s approach to over-profiting. At paragraph 11 on

page 6 the Learned Judge sites Innes J finding in Reuter v Yates, as follows: “It comes to

this - in deciding whether the defence of usury has been sustained, and whether the lender

has taken such an undue advantage of the borrower, has so practised extortion and

oppression, that his conduct, being akin to fraud, disentitles him to relief, the Court will

examine all the circumstances of the case. It will not only look at the scale of interest

[91]

which has been stipulated for, but will have regard to the ordinary rate prevalent in similar

transactions, to the security offered and the risk run, to the length of time for which the

loan was given, the amount lent, and the relative positions of the parties.” Further, at

endnote 15 of page 9 of the Learned Judge, remarks “Since time immemorial, our common

law has set its face against exploitation in the levying of interest.” A most illuminating

discussion on this aspect can be found in an historical survey by Grové, Die

gemeenregtelikebeheer van woeker in die Suis-Afrikaanse Reg, De Jure, 1989 (22),

233and Die gemeenregtelikebeheer van woeker in die Suis-Afrikaanse 1027 Reg (vervolg),

De Jure, 1990 (23),118.”

92. A fiduciary relationship prevents an agent, in this instance the 1stRespondent, from

entering into any transaction that would cause my interests to clash with the

1stRespondent’s duty. For instance, an agent employed to buy cannot sell his or her own

property; an agent employed to sell cannot buy his or her own property. In addition the

agent cannot make any profit from his or her agency other than the agreed remuneration.

As the case was in Robinson v Randfontein Estates Gold Mining Co Ltd 1921 883 AD 168

180, Bellairs v Hodnetl1978 (1) SA 1109 (A) 1130F, Low v Shedden [2001] 2 All SA 884

171 (C) and Ganes v TelecornNarnibia Ltd [2004] 2 All SA 609 (SCA), 2004 (3) SA 615

885 (SCA).

[92]

93. Within these premises the 1stRespondent was duty bound in terms of the fiduciary

relationship that came into operation the moment I applied for a loan from the

1stRespondent, further to be confirmed by entering into a contract with the 1stRespondent

and this on-going relationship is confirmed by me making payment to the 1stRespondent.

94. If follows that the Respondent has seriously breached the fiduciary duty by misleading me

in the grounds so-set-out supra and therefore it is my right to bring civil action against the

Respondent, which I intend doing.

CONCLUSION:

95. The structures employed by the Respondent are at very least distrustful, designed for

failure as it has no tangibility or substance which can justify the exorbitant interest charged

against their ‘co-called’ loans.

96. The 1stRespondent acted with a predefined, predetermined set of actions prior to

concluding the agreement with me because laws relating to the conduct of their industry

allow for such conduct of profiteering to take place; and such actions are unassailable in

the courts where the courts seem to have acted as shields and guardians of such actions by

the 1st Respondent.

[93]

97. There exists no true competition among commercial banks where one can take your

business, as each one of these so-called competitors are just another extension of the

banking system whom hold the exclusive mandate to exchange nothing for liquid demands;

98. I had not mandated the Respondent to act, as it did in these premises, where its contention

is that liquid money is borrowed against liquid repayments. There could never exist

consensus or “meeting of the minds” between the parties given the facts aforesaid as what I

had envision and what the Respondent versioned are two very distinct and far apart things

that one cannot connect the two minds to agree;

99. Policies and guidance’s designed to protect the system from manipulation have been

infringed upon, with absolute disregarded for rights and obligations in terms of law. Rules

and public policy have been replaced with reckless profiteering.

100. The Respondent cannotclaim that it had the capacity to act, as it had no such means; The

Respondent had to use external manipulation processes along with elaborate and

complicated schemes that serve only to elicit the trust of an unsuspecting customer, that

enabled it to gain the capacity to act;

101. It is doubtful that the Respondent had acquired authority to act; that is that the Respondent

had acquired the rights and obligations prior to the loan agreement being brought into

existence, as the majority of the Respondent’s rights and obligations were only concluded

[94]

once security, surety and creditworthiness were given, sold-off, loaned against or

manipulated from nothingness, sheer simulations or illusions of physical value.

102. Furthermore, I interject that the processes followed by the 1stRespondent are in violation of

the Constitution as far as the Legislation, in particular The Bank Act, The South African

Reserve Bank Act and Policies concerning financial services rendered by the Respondent,

in so far the Bill of Rights, Section 25 are concerned.

PREJUDICE:

103. I have been materially prejudice as in the forgoing paragraphs to such extend that my

rights to represent myself have be interfered with, thus disallowing the audi alteram

partem rule;

104. The material facts of the process followed by the 1st Respondent and 2nd Respondent has

caused undue financial burdens in that interest charged on my home loan are in excessive

range and bridge just interest;

105. That the 1st Respondent had acted outside its mandate by utilising my security or debt to

gain additional income and/ or profit, thus, and in conjunction thereto had caused financial

hardship to me.

[95]

106. The 1st Respondent had in its proceedings relied on its contract of loan to shield it from

answering questions about how it generates funds.

107. That the 1st Respondent together with the 2nd Respondent and 3rd Respondent had elected

to, caused these actions of the 1st Respondent to take place with their explicit or negligent

or in the alternative, to have been knowable thereof or could have been knowledgeable

thereof, and had done nothing to protect me from such profiteering and financial prejudice.

108. The 3rd Respondent had failed to take appropriate remedial steps to prevent the 1st

Respondent and 2nd Respondent to act within the confines of law. In the alternative, to

advise the general public of the principle of money generation so it could ascertain

valuable input from the public regarding these types of transactions. This will include the

valuation of our South African Rand.

LEGISLATIVE BILL INTRODUCED:

109. The Honourable Court’s attention is drawn to annexure “MT 22”, page 896. In order to

fully address the aspects contained in this application I have included the Financial

Markets Bill, which will be brought into law once qualified. The importance of this bill is

that it addresses some of the aspects contained herein.

ERRORS IN LEGAL REASONING:

[96]

110. The 1st Respondent had address my defence as one where I have paid the debt and where I

refute the existence of the contract or its enforceability as per annexure “MT 1” page 16.

111. I reiterate here and refer the Honourable Court’s attention to my application for leave to

appeal with its notes, annexure “MT 2” and “MT 3” hereto. These points are my

contentions and not what the 1st Respondent’s notations are.

CONCLUSION AND REMEDIES:

112. These are per my prayers in the application for leave to appeal in the Court below; and

113. That where the Honourable Court finds inconstancies in the Law governing the 1st

Respondent and the 2nd Respondent, that it issues such declaration as requested hereunder;

and

114. The 1st Respondent, together with the 2nd Respondent if it contests this application, pay to

me an amount of R15 000’000.00 (fifteen million) in damages, general damages and

damages caused to my reputation; and

115. That the 1st Respondent, together with the 2nd Respondent if it contest this application, be

ordered to pay the cost of these proceedings.

[97]

LEAVE TO APPEAL:

116. The first prayer contained in the Notice of Motion to which this affidavit is annexed is for

leave to appeal to this Honourable Court against the Judgment. This prayer is justified and

in the interest of justice as per the facts and considerations set out under paragraph seven

above which, mutatis mutandis, is hereby incorporated by reference, so as not overburden

these papers.

DECLARATION OF UNCONSTITUTIONALITY:

117. In terms of section 172(1)(a) of the Constitution, a court considering a constitutional

matter within its power has no discretion but must declare any unconstitutional law invalid

to the extent of its inconsistency.

118. After having made the declaration of invalidity, a court may then, in terms of section

172(1)(b) of the Constitution, make any order that is just and equitable.

119. In terms of section 172(1)(a), therefore, I submit that this Honourable Court must, on the

basis of the reasons set out above, make an order declaring those parts of the acts,

regulations and/ or policy governing the economical and/ or financial markets which

infringe upon a individual or juristic person’s rights to be unlawful and invalid. This is the

fourth prayer contained in the aforesaid Notice of Motion.

[98]

120. In terms of section 172(1)(b) of the Constitution, should this Court find that the acts,

regulations and/ or policy governing the economical and/ or financial markets are

unconstitutional, it may grant me just and equitable relief.

121. I submit that the second and third prayers in the aforesaid Notice of Motion constitute such

relief, as should be granted by this Honourable Court.

REVIEW OF THE 1ST RESPONDENT'S DECISION:

122. If the relevant acts, regulations and/ or policy governing the economical and/ or financial

markets are unconstitutional, the 1stRespondent’s decision, which was based upon the

home loan agreement, is clearly unlawful and falls to be set aside in terms of the fourth

prayer in the aforesaid Notice of Motion.

123. I submit that, once the impugned are declared null and void, the remainder sections and

rules applicable to these proceedings reads well enough to enable the introduction of a bill

or amendment to such acts/ rules, as the case might be, to be submitted in a manner which

is akin to the procedures and under the same conditions applicable to bills/ amendments

introduced by a Cabinet member or a Deputy Minister.

[99]

COSTS:

124. The fifth and sixth prayers in the aforesaid Notice of Motion relates to an order for costs

against the 1st Respondent, with the prayer that such order be made even if this Honourable

Court dismisses my applications;

124.1 In respect of the costs of my applications before this Honourable Court; OR

124.2 Subordinately, in respect of the costs relating to the proceedings in Court below.

125. In support of this prayer, I make reference to;

125.1 The facts and considerations set out under Para 123 above which, mutatis mutandis,

are hereby incorporated by reference, so as not overburden these papers;

125.2 The Court below exercised its discretion in an arbitrary or capricious manner;

126. The criteria set out by this Honourable Court in at paragraphs 6 to 7 Chonco and Others v

President, RSA 2010 (6) BCLR 511 (CC), inter alia, with reference how “in constitutional

litigation [...] the way in which a costs order will hinder or advance constitutional justice”;

and

126.1 additional argument and reasons shall be submitted to this Honourable Court with

my ‘Heads of Argument’ and in oral argument.

[100]

CONCLUSIONS:

127. I submit that the aforesaid prayers are;

127.1 Consistent with my prayers in the Court below, and

127.2 Consonant with the interest of justice.

128. For the reasons set out above, I submit that I have made out a case for the relief contained

in the Notice of Motion to which this affidavit is annexed, and I pray for an order

incorporating its terms.

DATE ATMIDRAND, THIS 19th DAY OF APRIL 2012

__________________________ DEPONENT

I hereby certify that the deponent declares that the deponent knows and understands the contents

of this affidavit and that it is to the best of the deponent's knowledge both true and correct. This

affidavit was signed and sworn to before me at MIDRAND on this 19th day of APRIL 2012 and

that the Regulations contained in Government Notice R1258 of 21 July 1972, as amended, have

been complied with.

[101]

__________________________

COMMISSIONER OF OATHS

Name & Rank : …………………………………………………

Address : …………………………………………………

Telephone No. : …………………………………………………

TN THE SOUTH GAUTENG HIGH COURTO JOHANNESBURG(REPUBLIC OF SOUTH AFRICA)

CASE NO.: 201llB34O


TELLINGER, MICHAL JULIUS APPLICANT

and

THE STANDARD BANK OF SOUTH PONDENT

sjI!

NOTICE OF APPLICATION TO GIVEWRTTTEN REASONS RULE 49(1XC)

BE PLEASED to take notice that the Plaintiff in the above case hereby requests that the

Honourable Judge M M MABESELE, hand to the Clerk of the Court a written jucigment in

respect of the trial of the above case that took place on 13 of MARCH 2012, which

judgment will form part of the record and must show:

the facts he found to be proved; and

his reasons for judgment.

DATED AT JOHANNESBURG ON THIS THE 14th DAY OF MARCHaOI2.

a)

b)

t1l

Annexure "MT A1" Page: 1

MR MICHEAL J TELLINGERThe Applicant

Cio BLAKES ATTORNEYS74 Oxford RoadCnr. 8th Avenue

SaxonworldTel: (011) 486 3225Fax: (0ll)48636A2

Ref: LP|MT/2112

AND TO:

TO:

BY THE COURT

DENEYS REITZ INCAttorney for Re spondent15 Aiice LaneSANDTON (preferred address) ORSuite l714,17th Floor Marble TowersCnr Jeppe & Von Weilligh StreetJohannesburgTel: (011) 685 8860Fax: (011) 301 3309Ref: A Moosajee/STD 1 0 1 57IAAM

THE REGISTRAR OF THE ABOVE HONOURABLE COURT,JOHANNESBURG

W

REGISTER

121


IN THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG(REPUBLIC OF SOUTH AFRICA)

CASE NO.: 201lllT4a


TELLINGER, MICHAL JULIUS APPLiCANT

and

THE STANDARD BANK OF SOUTH AFRICA LIMITED RESPONDENT

APPLICATION F'OR CERTIFIED COPIES OF COURT FILE

KINDLY prepare a certified copy of the Court File under case number 201111334.

THE Applicant in this matter tenders such cost for duplication and certification.

ALSO inform the Applicant in writing as to completion and cost via fax notification.

DATED AT JOIIANNESBURG ON THIS THE l4th DAY OF MARCH}OL2.

The ApplicantCio BLAKES ATTORNEYS

74 Oxford RoadCnr, 8th Avenue

SaxonworldTel: (01 l) 486 3225Fax: (01 l) 486 3602

Ref: LP/MT12/12

MR MICHEAL J TELLINGER

l1l


TO: THE REGISTRAR OF THE ABOVE HONOURABLE COURT,JOHAI\I\ESBURG

BY THE COURT

REGISTER

t2l


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