ANSWERING AFFIDAVIT



LINK Word.Document.12 "C:\\Users\\Douglas\\Documents\\Current\\Legal\\clients\\Kevin\\Kevin Radford Combined.docx" OLE_LINK4 \a \h IN THE XXXXXXXXXX HIGH COURT , CITY (REPUBLIC OF SOUTH AFRICA) CASE NO: 15454/2013In the matter between:BANK LTDApplicant andXXXXX XXXXXXXX First Respondent___________________________________________________________________ANSWERING AFFIDAVIT___________________________________________________________________I, the undersigned, XXXXXX XXXXXXXhereby make oath and say I am XXXXXX XXXXXXX a male businessman, , living at the property detailed in the applicant’s papers and the trustee of the above trust.. The facts in this affidavit are within my personal knowledge and are true and correct.When I make legal averments I make them as advised by my representatives.This is an application for the rescission of judgment granted CBT in this honourable court. On the basis that I have a case that is eminently defendable on the grounds laid out herein and on the basis of the manner in which judgment was granted on the say, in the absence of my representative. In limini 33809/2010Another equivalent matter is and was on the roll and has not been withdrawn.:On the 31st of August 2010 , to all intents and purposes, the same matter was on the XXXXXXXXXX roll under case number XXXXXX/XXXX. This matter was not proceeded with but was not withdrawn and no costs have been tendered. The application for summary judgment should not have been brought until the earlier one is withdrawn or this one is withdrawn and the other proceeded with, and costs tendered. In terms of the requirements for a rescission it will be evident from the papers below that I have many bona fide defences to the Plaintiff’s case: including but not limited to: that the case is already sub judicae before another court, that the quantum is wrong, that an amount is claimed in surety which contradicts what the surety says, that the Plaintiff has not proved its locus standi in terms of the effects of its securitisation program as is now become common practice, that the Plaintiff has only certified the debt and not proved it, that the debt review agreement was terminated illegally, that the quantum does not include payments I have made, that the person making the affidavit for the plaintiff does not have knowledge of the matter, or insufficient knowledge of the matter and that the second defendant does not appear to have been served by the Plaintiff. There are in fact so many bona fide defences to this matter that one wonders why it was even before the court in a summary judgment application. Yet it was, and now stands to be rescinded. Furthermore, it is the case that the order was erroneously granted in the absence of the party affected (being the applicant) in terms of Rule 42 (1) a even though it was known to the court that the applicant’s advocate was on his way to the court and only a few minutes away (see Annexure C)Securitisation.The bank has not proved that it is still the owner/holder of the debt. It is averred that it is not. It is disclosed in the bank’s official documents and accounts that it securitises some parts of its portfolio.It is not normal bank practice to disclose to clients when it securitises debtIf it has securitised my debt, then it cannot bring an application for judgment in its own name.I am therefore advised that the burden of proof can therefore only be on the bank to prove it has not securitised the debt my producing a register of those bonds that have been securitised and proving my name is not on it. As this has become realised by the banks it has become normal practice to submit an affidavit avering that the debt has or has not been securitised (Annexure ) which has not been done in this case. The bank has therefore not sufficiently proved locus standi.Certain aspects of this matter require viva voce evidence to be brought in the manner of a trial, therefore I am advised that this matter is not suitable for the application process and should be set down for trial. Expert witnesses and witnesses of the securitised transactions must be called, should our contentions in this section be opposed.I submit this is an important point and the absence of locus standi is in violation of my right to a fair trial.I aver that the debt in question has been securitised. It is clearly not proof for the bank simply to aver that a bond has or has not been securitised.It is material as if the debt has been securitised then the bank has no locus standi to bring legal process on that debt. The new holder of the bond’s rights should be the one to launch legal proceedings.It appears that not all securitised bonds are registered with the deeds registry. (Annexure) It is averred that the only way to prove that the debt is securitised or not is for the applicant to provide registers of which bonds have been securitised and which have not. . It is averred that affidavits are also required from the managers of these securitised entities or such other person in whose knowledge such facts are in, to confirm that the register is a full list of all bonds securitised in each particular entityIt is averred that affidavits are also required from the managers of at the bank, or such other person in whose knowledge such facts are in, to confirm that the list of entities which hold bonds formerly with the bank, is accurate and complete.We wish to call expert witnesses with respect to securitisation. We expect there to be disputes of fact in this matter, are request that this matter be set down for trial. Certification The amount that I owe has not been proved. The amount was absence proved only by certification. I am advised that certification is not constitutional, being contrary to the right to a fair trial. I am additionally advised that in the case law, certification of a debt is often contra bones mores and is so in this case. Ad Paragraph 1This paragraph is denied. I have never had any dealings with the person making this affidavit. It is denied that this person has direct knowledge of the facts of which she alleges. It is denied that simply having read the file gives her said knowledge. It is averred that the person who dealt with the account who knows the arrangements made with me is the person who must depose to an affidavit of this nature. Ad Paragraphs 2 This request is opposed. The Court is asked not to admit evidence that is hearsay. Ad Paragraphs 3This paragraph is admitted. Ad Paragraphs 4This paragraph is admitted. Ad Paragraphs 5 This paragraph is admitted. Ad Paragraphs 6 This paragraph is admitted. Ad Paragraphs 7 This paragraph is not opposed as long as the original documents are available for inspection at the trial/hearing.Ad Paragraphs 8 This paragraph is admitted. Ad Paragraphs 9 This paragraph is denied in terms of quantum The balance claimed of around R900,000 is incorrect as this is the amount the bond was registered for and not the amount loaned which was considerably less (Annexure). It is denied that I have acknowledged this debt. It is also denied that the Applicant is entitled to prove the balance by Certification as this practice is unconstitutional and contrary to the right to a fair trial. The court is asked to declare it so. Legal arguments will be advanced at heads of argument stage and a full list of relevant cases printed and provided to the court (and the Applicant) on the day of the hearing or trial.Ad Paragraphs 10 This paragraph is denied. There are many costs and charges that are incorrect (Annexure) . My domicillium is also not the one I indicated in my contract/ not now correct – my true domicillium is: CBT Ad Paragraphs 11 This paragraph is denied as explained in paragraph 9..Ad Paragraphs 12This paragraph is denied CBT , and the applicant put to the proof thereof. The balance outstanding is incorrect as explained in paragraph 9. Ad Paragraphs 13 This paragraph is admitted. Ad Paragraphs 14 The house is occupied by tenants for whom it is their main residence. Ad Paragraphs 15 This paragraph is admitted. Ad Paragraphs 16This paragraph is admitted. Ad Paragraphs 17 This paragraph is admittedAd Paragraphs 18 18.1 is denied in that the amount is wrong in quantum as explained in paragraph 9, and not been proved and therefore not due, owing and payable. 18.2, 18.3 is admitted. 18.4 It is denied that I am 45.53 months in arrears, I am in fact three months in arrears.18.5 is denied, I will soon be in a position to repay the arrears.The offer in 18.6 is accepted over a period of 24 months and an order to that effect is requested from this court. 18.7, 18.8 I accept the applicants waiver of any right to repossess movable property. 18.9 This paragraph is denied. The bank will often sell a property at auction for much less than it is worth if given some time to sell. This is an iniquitous practice and I am advised it is unconstitutional on the basis of being arbitrary and capricious and amounts to a deprivation or expropriation of property. An order is requested requiring the applicant to put the property for sale on the open market should their order be granted for at least one year before it is put on auction.18.10 This paragraph is admitted.Ad Paragraphs 19 This paragraph is denied.Ad Paragraphs 20 This paragraph is denied . I have paid various parts of whatever sum is outstanding. (Annexure) Ad Paragraphs 21 It is denied that I am liable in my personal capacity for more than a debt of R610,000 which is the maximum in the surety.Ad Paragraphs 22 This paragraph is not within my knowledge. CBT.Ad Paragraphs 23This paragraph is admittedAd Paragraphs 24 This paragraph is admittedAd Paragraphs 25 These notifications did not in fact reach the respondent (Anexure).Ad Paragraphs 26This paragraph is admitted.Ad Paragraphs 27 This paragraph is admitted.Ad Paragraphs 28This paragraph is denied. I adhered fully to the debt review payment laid out in the court order (Annexure ).Ad Paragraphs 29This paragraph is admitted. Ad Paragraphs 30This notification was not in fact received and the termination was illegal (Annexure )Ad Paragraphs 31This paragraph is denied, This notification was not in fact received and the termination was illegalAd Paragraphs 32This paragraph is denied, This notification was not in fact received and the termination was illegalAd Paragraphs 33This paragraph is denied. I raised dispute as soon as I realised what the applicant had attempted to do.Ad Paragraphs 34This paragraph is admitted.Ad Paragraphs 35This paragraph is denied, the matter is in fact properly in debt counselling and not properly terminated.Ad Paragraphs 36This paragraph is denied, the applicant is not in good faith and has terminated the debt review process illegally or alternatively, not in good faith. Ad Paragraphs 37This paragraph is admitted. Times and Process not correctThis application was served on us only on the first respondent on the 10th of May 2013. The 2nd Respondent has to my knowledge not been served at all. The times in the affidavit are thus incorrect and do no give me the normal times to prepare opposition. The dates on the notice of motion thus do not apply. We have thus complied with the time periods. Wherefore I pray that the application is dismissed with costs and that a declaration is made with respect to the constitutionality of Certification. ____________________________DEPONENT I hereby certify that the deponent has acknowledged that he 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 ……………….. on the …. day of ………….. 2013, the Regulations contained in Government Notice R1258 of 21 July 1972, as amended, having been complied with. __________________________________COMMISSIONER OF OATHS Area : Capacity :DATED AT GERMISTON ON THIS THE ____ DAY OF _____ 2013._____________________________TO:THE REGISTRAR OF THE ABOVEHONOURABLE COURTJOHANNESBURGAND TO:335280075565Copy hereof received on this the ____ day of ………..2013 for and on behalf of the Plaintiff’s Attorneys. Name:Signature:00Copy hereof received on this the ____ day of ………..2013 for and on behalf of the Plaintiff’s Attorneys. Name:Signature: ................
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