IN THE XXXXXXXXXX HIGH COURT , CITY

(REPUBLIC OF SOUTH AFRICA)

CASE NO: 15454/2013

In the matter between:

BANK LTD Applicant

and

XXXXX XXXXXXXX First Respondent

___________________________________________________________________

ANSWERING AFFIDAVIT

___________________________________________________________________

I, the undersigned,

XXXXXX XXXXXXX

hereby make oath and say

I am XXXXXX XXXXXXX
 1.1. a male businessman, , living at the property detailed in the applicant’s papers

and the trustee of the above trust.

1.2. . The facts in this affidavit are within my personal knowledge and are true and

correct.

1.3. When I make legal averments I make them as advised by my

representatives.

2. 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

33809/2010

3. Another equivalent matter is and was on the roll and has not been withdrawn.:On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proceeded with but was not withdrawn and no costs have been tendered.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one is withdrawn or this one is withdrawn and the other proceeded with, and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.

4. 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.

5. 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.

6. 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.

7. The bank has not proved that it is still the owner/holder of the debt. It is averred

that it is not.

7.1. It is disclosed in the bank’s official documents and accounts that it securitises

some parts of its portfolio.

7.2. It is not normal bank practice to disclose to clients when it securitises debt

7.3. If it has securitised my debt, then it cannot bring an application for judgment

in its own name.

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.

7.5. 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.

7.6. 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.

7.7. I submit this is an important point and the absence of locus standi is in

violation of my right to a fair trial.

8. I aver that the debt in question has been securitised.

8.1. It is clearly not proof for the bank simply to aver that a bond has or has not

been securitised.

8.2. 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.

8.3. It appears that not all securitised bonds are registered with the deeds

registry. (Annexure)

8.4. 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.

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 entity

8.6. It 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.

8.7. We wish to call expert witnesses with respect to securitisation.

8.8. We expect there to be disputes of fact in this matter, are request that this

matter be set down for trial.

9.

Certification

9.1. 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.

10.

Ad Paragraph 1

This 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.

11.

Ad Paragraphs 2

This request is opposed. The Court is asked not to admit evidence that is

hearsay.

12.

Ad Paragraphs 3

This paragraph is admitted.

13.

Ad Paragraphs 4

This paragraph is admitted.

14.

Ad Paragraphs 5

This paragraph is admitted.

15.

Ad Paragraphs 6

This paragraph is admitted.

16.

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.

18.

Ad Paragraphs 9

18.1. 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.

18.2. 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.

19.

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

20.1. This paragraph is denied as explained in paragraph 9..

21.

Ad Paragraphs 12

This paragraph is denied CBT , and the applicant put to the proof thereof. The

balance outstanding is incorrect as explained in paragraph 9.

22.

Ad Paragraphs 13

This paragraph is admitted.

23.

Ad Paragraphs 14

The house is occupied by tenants for whom it is their main residence.

24.

Ad Paragraphs 15

This paragraph is admitted.

25.

Ad Paragraphs 16

This paragraph is admitted.

26.

Ad Paragraphs 17

This paragraph is admitted

27.

Ad 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.

28.

Ad Paragraphs 19

This paragraph is denied.

29.

Ad Paragraphs 20
This paragraph is denied . I have paid various parts of whatever sum is

outstanding. (Annexure)

30.

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.

31.

Ad Paragraphs 22

This paragraph is not within my knowledge. CBT.

32.

Ad Paragraphs 23

This paragraph is admitted

33.

Ad Paragraphs 24

This paragraph is admitted

34.

Ad Paragraphs 25

These notifications did not in fact reach the respondent (Anexure).

35.

Ad Paragraphs 26

This paragraph is admitted.

36.

Ad Paragraphs 27
 This paragraph is admitted.

37.

Ad Paragraphs 28

This paragraph is denied. I adhered fully to the debt review payment laid out in the

court order (Annexure ).

38.

Ad Paragraphs 29

This paragraph is admitted.

39.

Ad Paragraphs 30

This notification was not in fact received and the termination was illegal

(Annexure )

40.

Ad Paragraphs 31

This paragraph is denied, This notification was not in fact received and the

termination was illegal

41.

Ad Paragraphs 32

This paragraph is denied, This notification was not in fact received and the

termination was illegal

42.

Ad Paragraphs 33
 This paragraph is denied. I raised dispute as soon as I realised what the

applicant had attempted to do.

43.

Ad Paragraphs 34

This paragraph is admitted.

44.

Ad Paragraphs 35

This paragraph is denied, the matter is in fact properly in debt counselling and not

properly terminated.

45.

Ad Paragraphs 36

This paragraph is denied, the applicant is not in good faith and has terminated

the debt review process illegally or alternatively, not in good faith.

46.

Ad Paragraphs 37

This paragraph is admitted.

47. Times and Process not correct

47.1. This 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.

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 ABOVE

HONOURABLE COURT

JOHANNESBURG

AND TO:

Copy hereof received on this the