The homeowner was trying to catch up on arrears and save his home. The bank’s attorneys wanted none of it – but this time they failed.
It seems judges are getting fed up with banks’ attorneys playing technical games in court, particularly when it comes to home repossessions.
This week, Judge Stuart Wilson of the Johannesburg High Court dismissed with costs an attempt by Standard Bank to set aside a ‘stay and rescission application’ by Joburg homeowner Daniel Moloisane on purely technical grounds.
The homeowner was trying to stop the bank from selling his home at auction to recover its alleged arrears. The banks’ attorneys thought they could get rid of this inconvenience by arguing procedural points.
The same court had earlier declared the property specially executable – allowing it to be sold at auction – because Moloisane had apparently fallen into arrears.
Moloisane had subsequently scrambled to catch up on the arrears, making payments of R140 000 to the bank. On this basis, he applied to the court to stay the auction and rescind the earlier judgment against him.
“I cannot say whether these facts, if true, would have led Adams J [who earlier heard the case] to make a different order. But they are, prima facie, relevant to the question of whether special execution could have been avoided.
“They call for an answer from Standard Bank,” reads the judgment.
“Instead of delivering that answer, Standard Bank applied to strike Mr. Moloisane’s application out under Rule 30 of the Uniform Rules of Court.”
Rule 30 deals with irregular proceedings in court.
The bank claimed that Moloisane had not complied with court rules around the filing of a notice of motion, a formal document that initiates a court application and spells out what specific remedies the applicant is requesting.
This seems like a purely technical argument on the bank’s part, and the judge agreed, adding that the bank had not shown that it suffered any prejudice as a result.
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Bank misses the point …
The bank’s reliance on an irregular step taken by a lay litigant, who represented himself, did not sit well with the court.
Standard Bank had “neither alleged nor demonstrated in its founding affidavit that it has suffered any prejudice as a result of the irregularity,” reads the judgment.
The Constitutional Court has ruled that lay litigants should not be held to the same standard of accuracy, skill and precision as professional lawyers.
“[The bank’s] counsel’s effort to cure that defect in his written submissions notwithstanding, it seems to me that there is no such prejudice. Mr. Moloisane’s case and the relief he seeks are clear enough, and Standard Bank is already aware of all of the other particulars that would have appeared in a notice of motion had one been prepared.”
Standard Bank was represented by Ramsay Webber Attorneys.
Moloisane represented himself.
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‘High-minded’
“One further point calls for comment,” reads the judgment.
“In its founding affidavit, Standard Bank relies on what seems like the high-minded proposition that the rules of court apply equally to all litigants. Whether or not that is true, the equal application of the rules does not mean treating every litigant identically.
“Lay litigants are entitled to the most careful and sensitive treatment, as they seek to navigate legal proceedings which must often seem to them excessively formal and festooned in unnecessary and ritualistic language and behaviour.”
Moloisane’s case for a stay (a halt to the auction) and rescission (overturning the earlier judgment allowing his property to be sold at auction) has yet to be tested in court, but he will no doubt be emboldened by the latest court ruling in his favour.
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Don’t be intimidated by the banks
“This [case] is a clear indication that consumers must not be intimidated,” says consumer legal advisor Leonard Benjamin.
“They have a right to challenge legal proceedings against them even if they don’t truly understand the legal system.
“The banks take an inordinate number of shortcuts because they get no opposition,” he adds.
“The Reinecke’s case against FirstRand Bank is a prime example of a layperson successfully fighting for their home. Everyone should have the same mindset.”
This article was republished from Moneyweb. Read the original here.
