Tuis » Algemeen » Koeitjies & kalfies » Die wet/Regs vraag: fault these 'heads of arguments'
| Die wet/Regs vraag: fault these 'heads of arguments' [boodskap #114202] |
Do, 05 Julie 2007 08:52  |
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Boodskappe: 2
Geregistreer: Augustus 2006
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Junior Lid |
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'That Afrikaners have a fascination/respect for 'die wet' is shown
by the fact that many of their TV-soapies feature 'die prokereur,
advokaat, hof'. [ The english historically were fascinated by
murder - who done it ? ]
Since they have no problem in exposing the fact that new-SA
administration is/has substantially degenerated, do they ever
acknowledge that the judicial system, which likes to pretend to
be apart from and above the other state departments, is equally
degenerated and incompetent ?
Perhaps because of apartheid, many blankes who should have been
bus-drivers, were able to became 'legal professionals' ?
In this matter the defendant [I] has kept meticulous records [since he
planned/set-up the matter], but needs to restrain/discipline himself to
withhold, much of the record to avoid swamping the reader and Courts.
I've noticed that local litigations seem to be shallow and undetailed.
This no doubt since experience has proven that the presentation needs
to be simple enough for the Court to easily grasp the essence. Perhaps
my extra details need to emerge later, to answer any subtle questions ?
------- Start of heads draft -------
Notation: 123/26 indicates 'the record pg 123, line 26.
- The matter concerns an application for rescission of a default judgment.
- "THE" authority in this [S.African] judiciary: Buckle & Jones 2003
'Magistrates' Courts Rules of Court' writes: "Rule 49...General. The object
of rescinding a judgment is to restore a chance to air a real dispute."
Therefore: even when the defendant missed the opportunity to have a
hearing, through no fault of his own, such rescission is pointless and
a mere waste of judicial resources, if the defendant admits guilt
to the default judgment after said default judgment.
In the matter under consideration, the default judgment was given
on 9 Nov. The defendant, unaware that a judgment had been granted
wrote to the plaintiff, supplying a detailed spreadsheet of calculations,
and stated: "you have demanded [in the mandatory notice of arrears
dated 21 May] R4'444. Now on 22 Dec. [ie. after the default judgment]
my enclosed calculations show that I owe R7'777 [by virtue of the
payments withheld, in protest against repeated false billing, and with
my recorded intention of escalating the matter to a court hearing,
to expose your billing-incompetence/negligence]. Please
check my calculations and either show possible mistakes, or accept
them as correct, so that I may settle the correct amount owed."
The monopoly supplier state department creditor ignored the request.
After the defendant discovered that a default judgment had already
been contrived, he launched an application for rescission of said
default judgment.
The creditor's opposing affidavit noted that the amount admitted as
owing after the default judgment exceeded the claim, and states:
"5.3 It is clear that the Applicant, on his own version, admitted that
he owed at least the amounts to the Respondent in terms of the
Judgment." [45/4]
The defendant chose to self-represent, since several attorneys had
used false logic to conclude that conditions which arose AFTER
the default judgment could prove guilt at the time of the default
judgment. Only 'law people' believe that cause comes after effect?
The transcript of the first magistrate's proceedings [128/15] reads:
COURT: Sir listen here, this is a motion court, I hear
things here on affidavit. There was an application filed by
you applying for rescission of judgment.
MR GLUR: Correct.
COURT: The respondent answered thereto opposing your
rescission. If you want to reply to the opposing affidavit,
you have to do so by way of affidavit. This is not a trial.
Accordingly the replying affidavit filed [68/par 9] reads: "...
Since in the case where payments are suspended the debt owed is
continually increasing over time, it is meaningless to claim an amount
without specifying the corresponding date. In the instance when a date
is not specified the date by default is implied to be the date when the
claim is made.
And it is clear that the legislation applicable to this matter requires
the date as well as the amount to be specified when claiming a debt.
...
Since the Judgment referred to what occurred before 99/12/10, this
Judgment Could not refer to a debt claimed at 99/12/10 i.e. a debt
occurring after the Judgment date.
Therefore paragraph 5.3 of the Respondents affidavit is incorrect because
my admission is NOT "in terms of the Judgment".
..."
The transcript of the second magistrate's proceedings [140/10] reads:
"COURT: I don't have the replying affidavit, I ...
(inaudible) ... filed today. I didn't see any replying
affidavit. I just want to find out from him. Sir, did you
file the replying affidavit with the clerk of the court?
MR GLUR: I did. I did.
... [141/4]
MR DE HEUS: I think it will make more sense if we adjourn
and we will get you a copy otherwise it's...
COURT: Ja, ja it's more...
MR DE HEUS: Of the whole document.
COURT ADJOURNS
[158/2]
MR GLUR: ...My documentation and evidence overrides the
false, flippant verbal statements of the respondent's
attorney.
I don't find it necessary to reply to the other false statements
of the attorney because they have been answered
in writing and it is distressing to me to see your Worship
dealing with the matter apparently without the knowledge
which the written affidavit would provide as a background.
That's all I have to say your Worship...."
In fact, the vital replying affidavit was found by the Court during the
adjournment and before the rescission was refused on grounds [92/10] :
"..the Court found that the applicant agreed that he owed the
respondent the amount claimed. He went further than that.
He said in his papers that he owed more than the amount claimed."
The grounds accepted in the magistrate decision, were recognised as
being invalid, in that these grounds were [improperly] changed for the
appeal to: 'oh well, if you want effect to follow cause, then the amount
admitted as owing at the summons issue date, also exceeded the claim.'
This new ground had not been alleged at the magistrate hearing nor in
the Plaintiff's papers.
A Supreme Court of Appeal applicant who applied for a mandamus,
attempting to force the residents of a black township to pay their
municipal, costs contrary to the revolutionary protest promoted by the
ANC before *they* took power, received the following finding in,
Kempton Park..Metrolpolitan..v Kelder 51/98 (31 March 2000):
] The council, as has been stated, owes its existence to the
] provisions of the Local Government Transition Act 209 of 1993
] and the proclamations made in terms thereof. Its powers and duties
] are conferred by the Constitution, by other statutes and the relevant
] principles of public and administrative law. To impose upon it additional
] duties in accordance with the principles of private law seems to me to
] negate its function as an organ of state and a branch of government.
I.e. the SCA said: 'the law between citizens and municipal
authorities does NOT follow the laws between ordinary [free to
chose] creditors/suppliers and debtors/consumers. And such
inappropriate laws should not be projected/interpreted to apply
between municipal authorities and its captive clients.'
The law applicable to this matter - ordinance 17 of 1939, S 49(2) reads:
"If any charges due...shall *REMAIN* unpaid for a period of six weeks after
the date on which written notice *SHALL* have been given by the council..
the council may proceed..for the amount of *SUCH* charges or any part
thereof ...";
and interprets to rule:
1. before legal proceedings, proper written notice of arrears is mandatory;
2. such legal proceedings restrict the sued amount, to the notice amount.
Ie. charges incurred AFTER the mandatory notice belong to a different
action.
Importantly S 51 allows the council to withhold transfer of the property
until all charges owing for several years are settled. I.e. any further arrears
after the initial mandatory notice can be recovered by further notices.
Ie. the normal debtor/creditor litigation procedure, where the amount
owed can be adjusted/calculated up to the hearing date, so that the
parties can DISENGAGE, does NOT apply, since the property owner
CANNOT disengage from the monopoly-supplier municipal council.
The above evidence/argument: that the default judgment was properly
limited to the pre-mandatory-notice cause of action is confirmed
independentely by any single one of the following four facts:
1. the ordinance 17 s 49 interpretation;
2. all monthly statements after the mandatory notice listed the "Balance
handed over" [actual words] being properly equal to the FIXED claim,
and separate from the accumulating amount owing -- but not yet
sueable in terms of the ordinance.
3. The summons [contrived to be delivered to the property not occupied
by the owner, to facilitate a default judgment, whereas other
correspondence was posted and received] correctly sued for the
pre-notice charges only.
4. The common-law requirement that the summons must adequately
specify the cause of action, to allow the defendant the properly defend,
was vague, but DID correspond in amount [correctly per 17/s49]
exactly to the mandatory arrears notice.
At the appeal hearing, the appellant was still unaware of ordinance 17 s49,
and his prepared argument was limited to rebutting the claim that
events which occurred after the judgment [and were random/uncertain]
could justify such judgment. Ie. the written magistrate's grounds were
attacked, and the appellant was not prepared for a new/different
argument.
Importantly, confirming facts 2, 3, 4 above: were all in the appeal record,
and hence the necessary allegations were made and proved.
Any single one of these three facts suffices for a defense.
The self-represented appellant had not prepared himself to need to explain
to High Court Judges, the simplistic inferences that facts 2, 3, 4 implied
that the cause of debt sued for was restricted to the pre-notice charges.
Again he assumed [apparently wrongly] that the record had been read
and understood, before the hearing.
------ The above evidence/argument now serves merely to rebut later
grounds for rejecting a further [second] rescission application.
The substantive grounds for that application, which were not rejected, were
that the mandatory notice was not proper. The procedural grounds for
rejecting the application [which application is allowed by rule (8) "Where
the rescission..is sought on the ground that it is void ab origine..within
one year after the applicant first had knowledge of such voidness.."];
were given as "these new grounds should have been given at the first
application".
It is contended that multiple proofs may exist to confirm any fact; but
that any one single valid proof suffices as confirmation.
Accordingly, since the evidence and arguments of the first application
[given above in full] are valid, there was no need to find and bring the
argument of the second application, except for the mistakes of the Courts.
That Counsel for the council was allowed to change the argument given
at the magistrate level, for the appeal; and yet denies the defendant the
right to bring a new ground for the second application, demonstrates
gross injustice.
----------------
A Supreme Court of Appeal precedent for the second application, which
my own research uncovered, and was not raised by the attorney who
brought the second application is: Weenen..Local Council v.. [SCA 399/2000]
]The only defence relevant to the
]appeal raised by the respondent was that the amounts claimed were
]not due and payable because the appellant had not complied with the
]provisions of s 166 of the Natal Local Authorities Ordinance, 1974
]....
]In the result, the appeal is dismissed with costs.
We note how the council officials/pig-heads had no problem in opposing
the decision, right up to the SCA level; because the tax payer had to pay
for their incompetence.
----------
Q - how does the 'procedural' relationship between the two
applications potentially play out ?
In that the first appeal [and later application for further leave to appeal]
was refused, may the second application's appeal, still hear the facts and
argument of the first appeal, as given here, in order to realise/confirm
that the second application, although also valid, was not needed except
for the mistakes of previous Courts. Or does the second applications'
appeal have to pretend that the previous findings are valid until over
turned -- which needs a higher Court ?
Q - Does this give me a chance/justification to apply to [an existing]
'slightly' higher Court for the second appeal, ie. Transvaal Provincial
Division instead of Witwatersrand Local Division ?
Thanks for any input,
== Chris Glur.
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| Re: Die wet/Regs vraag: fault these 'heads of arguments' [boodskap #114203 is 'n antwoord op boodskap #114202] |
Do, 05 Julie 2007 09:03  |
Ferdi
Boodskappe: 561
Geregistreer: Maart 2007
Karma: 0
|
Senior Lid |
|
|
zzzzzzzzzzzzzzzzzzzzzzzzzzz........................
On Thu, 05 Jul 2007 03:52:20 -0500, ne...@absamail.co.za wrote:
> 'That Afrikaners have a fascination/respect for 'die wet' is shown
> by the fact that many of their TV-soapies feature 'die prokereur,
> advokaat, hof'. [ The english historically were fascinated by
> murder - who done it ? ]
>
> Since they have no problem in exposing the fact that new-SA
> administration is/has substantially degenerated, do they ever
> acknowledge that the judicial system, which likes to pretend to
> be apart from and above the other state departments, is equally
> degenerated and incompetent ?
>
> Perhaps because of apartheid, many blankes who should have been
> bus-drivers, were able to became 'legal professionals' ?
>
> In this matter the defendant [I] has kept meticulous records [since he
> planned/set-up the matter], but needs to restrain/discipline himself to
> withhold, much of the record to avoid swamping the reader and Courts.
> I've noticed that local litigations seem to be shallow and undetailed.
> This no doubt since experience has proven that the presentation needs
> to be simple enough for the Court to easily grasp the essence. Perhaps
> my extra details need to emerge later, to answer any subtle questions ?
>
> ------- Start of heads draft -------
> Notation: 123/26 indicates 'the record pg 123, line 26.
>
> - The matter concerns an application for rescission of a default judgment.
>
> - "THE" authority in this [S.African] judiciary: Buckle & Jones 2003
> 'Magistrates' Courts Rules of Court' writes: "Rule 49...General. The object
> of rescinding a judgment is to restore a chance to air a real dispute."
>
> Therefore: even when the defendant missed the opportunity to have a
> hearing, through no fault of his own, such rescission is pointless and
> a mere waste of judicial resources, if the defendant admits guilt
> to the default judgment after said default judgment.
>
> In the matter under consideration, the default judgment was given
> on 9 Nov. The defendant, unaware that a judgment had been granted
> wrote to the plaintiff, supplying a detailed spreadsheet of calculations,
> and stated: "you have demanded [in the mandatory notice of arrears
> dated 21 May] R4'444. Now on 22 Dec. [ie. after the default judgment]
> my enclosed calculations show that I owe R7'777 [by virtue of the
> payments withheld, in protest against repeated false billing, and with
> my recorded intention of escalating the matter to a court hearing,
> to expose your billing-incompetence/negligence]. Please
> check my calculations and either show possible mistakes, or accept
> them as correct, so that I may settle the correct amount owed."
>
> The monopoly supplier state department creditor ignored the request.
>
> After the defendant discovered that a default judgment had already
> been contrived, he launched an application for rescission of said
> default judgment.
>
> The creditor's opposing affidavit noted that the amount admitted as
> owing after the default judgment exceeded the claim, and states:
> "5.3 It is clear that the Applicant, on his own version, admitted that
> he owed at least the amounts to the Respondent in terms of the
> Judgment." [45/4]
>
> The defendant chose to self-represent, since several attorneys had
> used false logic to conclude that conditions which arose AFTER
> the default judgment could prove guilt at the time of the default
> judgment. Only 'law people' believe that cause comes after effect?
>
> The transcript of the first magistrate's proceedings [128/15] reads:
> COURT: Sir listen here, this is a motion court, I hear
> things here on affidavit. There was an application filed by
> you applying for rescission of judgment.
> MR GLUR: Correct.
> COURT: The respondent answered thereto opposing your
> rescission. If you want to reply to the opposing affidavit,
> you have to do so by way of affidavit. This is not a trial.
>
> Accordingly the replying affidavit filed [68/par 9] reads: "...
> Since in the case where payments are suspended the debt owed is
> continually increasing over time, it is meaningless to claim an amount
> without specifying the corresponding date. In the instance when a date
> is not specified the date by default is implied to be the date when the
> claim is made.
>
> And it is clear that the legislation applicable to this matter requires
> the date as well as the amount to be specified when claiming a debt.
> ...
> Since the Judgment referred to what occurred before 99/12/10, this
> Judgment Could not refer to a debt claimed at 99/12/10 i.e. a debt
> occurring after the Judgment date.
>
> Therefore paragraph 5.3 of the Respondents affidavit is incorrect because
> my admission is NOT "in terms of the Judgment".
> ..."
>
> The transcript of the second magistrate's proceedings [140/10] reads:
> "COURT: I don't have the replying affidavit, I ...
> (inaudible) ... filed today. I didn't see any replying
> affidavit. I just want to find out from him. Sir, did you
> file the replying affidavit with the clerk of the court?
> MR GLUR: I did. I did.
> ... [141/4]
> MR DE HEUS: I think it will make more sense if we adjourn
> and we will get you a copy otherwise it's...
> COURT: Ja, ja it's more...
> MR DE HEUS: Of the whole document.
> COURT ADJOURNS
> [158/2]
> MR GLUR: ...My documentation and evidence overrides the
> false, flippant verbal statements of the respondent's
> attorney.
> I don't find it necessary to reply to the other false statements
> of the attorney because they have been answered
> in writing and it is distressing to me to see your Worship
> dealing with the matter apparently without the knowledge
> which the written affidavit would provide as a background.
> That's all I have to say your Worship...."
>
> In fact, the vital replying affidavit was found by the Court during the
> adjournment and before the rescission was refused on grounds [92/10] :
> "..the Court found that the applicant agreed that he owed the
> respondent the amount claimed. He went further than that.
> He said in his papers that he owed more than the amount claimed."
>
> The grounds accepted in the magistrate decision, were recognised as
> being invalid, in that these grounds were [improperly] changed for the
> appeal to: 'oh well, if you want effect to follow cause, then the amount
> admitted as owing at the summons issue date, also exceeded the claim.'
> This new ground had not been alleged at the magistrate hearing nor in
> the Plaintiff's papers.
>
> A Supreme Court of Appeal applicant who applied for a mandamus,
> attempting to force the residents of a black township to pay their
> municipal, costs contrary to the revolutionary protest promoted by the
> ANC before *they* took power, received the following finding in,
> Kempton Park..Metrolpolitan..v Kelder 51/98 (31 March 2000):
> ] The council, as has been stated, owes its existence to the
> ] provisions of the Local Government Transition Act 209 of 1993
> ] and the proclamations made in terms thereof. Its powers and duties
> ] are conferred by the Constitution, by other statutes and the relevant
> ] principles of public and administrative law. To impose upon it additional
> ] duties in accordance with the principles of private law seems to me to
> ] negate its function as an organ of state and a branch of government.
>
> I.e. the SCA said: 'the law between citizens and municipal
> authorities does NOT follow the laws between ordinary [free to
> chose] creditors/suppliers and debtors/consumers. And such
> inappropriate laws should not be projected/interpreted to apply
> between municipal authorities and its captive clients.'
>
> The law applicable to this matter - ordinance 17 of 1939, S 49(2) reads:
> "If any charges due...shall *REMAIN* unpaid for a period of six weeks after
> the date on which written notice *SHALL* have been given by the council..
> the council may proceed..for the amount of *SUCH* charges or any part
> thereof ...";
> and interprets to rule:
> 1. before legal proceedings, proper written notice of arrears is mandatory;
> 2. such legal proceedings restrict the sued amount, to the notice amount.
> Ie. charges incurred AFTER the mandatory notice belong to a different
> action.
>
> Importantly S 51 allows the council to withhold transfer of the property
> until all charges owing for several years are settled. I.e. any further arrears
> after the initial mandatory notice can be recovered by further notices.
> Ie. the normal debtor/creditor litigation procedure, where the amount
> owed can be adjusted/calculated up to the hearing date, so that the
> parties can DISENGAGE, does NOT apply, since the property owner
> CANNOT disengage from the monopoly-supplier municipal council.
>
> The above evidence/argument: that the default judgment was properly
> limited to the pre-mandatory-notice cause of action is confirmed
> independentely by any single one of the following four facts:
> 1. the ordinance 17 s 49 interpretation;
> 2. all monthly statements after the mandatory notice listed the "Balance
> handed over" [actual words] being properly equal to the FIXED claim,
> and separate from the accumulating amount owing -- but not yet
> sueable in terms of the ordinance.
> 3. The summons [contrived to be delivered to the property not occupied
> by the owner, to facilitate a default judgment, whereas other
> correspondence was posted and received] correctly sued for the
> pre-notice charges only.
> 4. The common-law requirement that the summons must adequately
> specify the cause of action, to allow the defendant the properly defend,
> was vague, but DID correspond in amount [correctly per 17/s49]
> exactly to the mandatory arrears notice.
>
> At the appeal hearing, the appellant was still unaware of ordinance 17 s49,
> and his prepared argument was limited to rebutting the claim that
> events which occurred after the judgment [and were random/uncertain]
> could justify such judgment. Ie. the written magistrate's grounds were
> attacked, and the appellant was not prepared for a new/different
> argument.
>
> Importantly, confirming facts 2, 3, 4 above: were all in the appeal record,
> and hence the necessary allegations were made and proved.
>
> Any single one of these three facts suffices for a defense.
>
> The self-represented appellant had not prepared himself to need to explain
> to High Court Judges, the simplistic inferences that facts 2, 3, 4 implied
> that the cause of debt sued for was restricted to the pre-notice charges.
> Again he assumed [apparently wrongly] that the record had been read
> and understood, before the hearing.
>
> ------ The above evidence/argument now serves merely to rebut later
> grounds for rejecting a further [second] rescission application.
>
> The substantive grounds for that application, which were not rejected, were
> that the mandatory notice was not proper. The procedural grounds for
> rejecting the application [which application is allowed by rule (8) "Where
> the rescission..is sought on the ground that it is void ab origine..within
> one year after the applicant first had knowledge of such voidness.."];
> were given as "these new grounds should have been given at the first
> application".
>
> It is contended that multiple proofs may exist to confirm any fact; but
> that any one single valid proof suffices as confirmation.
>
> Accordingly, since the evidence and arguments of the first application
> [given above in full] are valid, there was no need to find and bring the
> argument of the second application, except for the mistakes of the Courts.
>
> That Counsel for the council was allowed to change the argument given
> at the magistrate level, for the appeal; and yet denies the defendant the
> right to bring a new ground for the second application, demonstrates
> gross injustice.
> ----------------
>
> A Supreme Court of Appeal precedent for the second application, which
> my own research uncovered, and was not raised by the attorney who
> brought the second application is: Weenen..Local Council v.. [SCA 399/2000]
> ]The only defence relevant to the
> ]appeal raised by the respondent was that the amounts claimed were
> ]not due and payable because the appellant had not complied with the
> ]provisions of s 166 of the Natal Local Authorities Ordinance, 1974
> ]....
> ]In the result, the appeal is dismissed with costs.
>
> We note how the council officials/pig-heads had no problem in opposing
> the decision, right up to the SCA level; because the tax payer had to pay
> for their incompetence.
> ----------
>
> Q - how does the 'procedural' relationship between the two
> applications potentially play out ?
> In that the first appeal [and later application for further leave to appeal]
> was refused, may the second application's appeal, still hear the facts and
> argument of the first appeal, as given here, in order to realise/confirm
> that the second application, although also valid, was not needed except
> for the mistakes of previous Courts. Or does the second applications'
> appeal have to pretend that the previous findings are valid until over
> turned -- which needs a higher Court ?
>
> Q - Does this give me a chance/justification to apply to [an existing]
> 'slightly' higher Court for the second appeal, ie. Transvaal Provincial
> Division instead of Witwatersrand Local Division ?
>
> Thanks for any input,
>
> == Chris Glur.
|
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|
|
| Re: Die wet/Regs vraag: fault these 'heads of arguments' [boodskap #114204 is 'n antwoord op boodskap #114202] |
Do, 05 Julie 2007 14:16 |
Daun Johnson
Boodskappe: 1155
Geregistreer: Januarie 2009
Karma: 0
|
Senior Lid |
|
|
On Thu, 05 Jul 2007 03:52:20 -0500, ne...@absamail.co.za wrote:
> 'That Afrikaners have a fascination/respect for 'die wet' is shown
> by the fact that many of their TV-soapies feature 'die prokereur,
> advokaat, hof'. [ The english historically were fascinated by
> murder - who done it ? ]
>
> Since they have no problem in exposing the fact that new-SA
> administration is/has substantially degenerated, do they ever
> acknowledge that the judicial system, which likes to pretend to
> be apart from and above the other state departments, is equally
> degenerated and incompetent ?
>
> Perhaps because of apartheid, many blankes who should have been
> bus-drivers, were able to became 'legal professionals' ?
>
> In this matter the defendant [I] has kept meticulous records [since he
> planned/set-up the matter], but needs to restrain/discipline himself to
> withhold, much of the record to avoid swamping the reader and Courts.
> I've noticed that local litigations seem to be shallow and undetailed.
> This no doubt since experience has proven that the presentation needs
> to be simple enough for the Court to easily grasp the essence. Perhaps
> my extra details need to emerge later, to answer any subtle questions ?
>
> ------- Start of heads draft -------
> Notation: 123/26 indicates 'the record pg 123, line 26.
>
> - The matter concerns an application for rescission of a default judgment.
>
> - "THE" authority in this [S.African] judiciary: Buckle & Jones 2003
> 'Magistrates' Courts Rules of Court' writes: "Rule 49...General. The object
> of rescinding a judgment is to restore a chance to air a real dispute."
>
> Therefore: even when the defendant missed the opportunity to have a
> hearing, through no fault of his own, such rescission is pointless and
> a mere waste of judicial resources, if the defendant admits guilt
> to the default judgment after said default judgment.
>
> In the matter under consideration, the default judgment was given
> on 9 Nov. The defendant, unaware that a judgment had been granted
> wrote to the plaintiff, supplying a detailed spreadsheet of calculations,
> and stated: "you have demanded [in the mandatory notice of arrears
> dated 21 May] R4'444. Now on 22 Dec. [ie. after the default judgment]
> my enclosed calculations show that I owe R7'777 [by virtue of the
> payments withheld, in protest against repeated false billing, and with
> my recorded intention of escalating the matter to a court hearing,
> to expose your billing-incompetence/negligence]. Please
> check my calculations and either show possible mistakes, or accept
> them as correct, so that I may settle the correct amount owed."
>
> The monopoly supplier state department creditor ignored the request.
>
> After the defendant discovered that a default judgment had already
> been contrived, he launched an application for rescission of said
> default judgment.
>
> The creditor's opposing affidavit noted that the amount admitted as
> owing after the default judgment exceeded the claim, and states:
> "5.3 It is clear that the Applicant, on his own version, admitted that
> he owed at least the amounts to the Respondent in terms of the
> Judgment." [45/4]
>
> The defendant chose to self-represent, since several attorneys had
> used false logic to conclude that conditions which arose AFTER
> the default judgment could prove guilt at the time of the default
> judgment. Only 'law people' believe that cause comes after effect?
>
> The transcript of the first magistrate's proceedings [128/15] reads:
> COURT: Sir listen here, this is a motion court, I hear
> things here on affidavit. There was an application filed by
> you applying for rescission of judgment.
> MR GLUR: Correct.
> COURT: The respondent answered thereto opposing your
> rescission. If you want to reply to the opposing affidavit,
> you have to do so by way of affidavit. This is not a trial.
>
> Accordingly the replying affidavit filed [68/par 9] reads: "...
> Since in the case where payments are suspended the debt owed is
> continually increasing over time, it is meaningless to claim an amount
> without specifying the corresponding date. In the instance when a date
> is not specified the date by default is implied to be the date when the
> claim is made.
>
> And it is clear that the legislation applicable to this matter requires
> the date as well as the amount to be specified when claiming a debt.
> ...
> Since the Judgment referred to what occurred before 99/12/10, this
> Judgment Could not refer to a debt claimed at 99/12/10 i.e. a debt
> occurring after the Judgment date.
>
> Therefore paragraph 5.3 of the Respondents affidavit is incorrect because
> my admission is NOT "in terms of the Judgment".
> ..."
>
> The transcript of the second magistrate's proceedings [140/10] reads:
> "COURT: I don't have the replying affidavit, I ...
> (inaudible) ... filed today. I didn't see any replying
> affidavit. I just want to find out from him. Sir, did you
> file the replying affidavit with the clerk of the court?
> MR GLUR: I did. I did.
> ... [141/4]
> MR DE HEUS: I think it will make more sense if we adjourn
> and we will get you a copy otherwise it's...
> COURT: Ja, ja it's more...
> MR DE HEUS: Of the whole document.
> COURT ADJOURNS
> [158/2]
> MR GLUR: ...My documentation and evidence overrides the
> false, flippant verbal statements of the respondent's
> attorney.
> I don't find it necessary to reply to the other false statements
> of the attorney because they have been answered
> in writing and it is distressing to me to see your Worship
> dealing with the matter apparently without the knowledge
> which the written affidavit would provide as a background.
> That's all I have to say your Worship...."
>
> In fact, the vital replying affidavit was found by the Court during the
> adjournment and before the rescission was refused on grounds [92/10] :
> "..the Court found that the applicant agreed that he owed the
> respondent the amount claimed. He went further than that.
> He said in his papers that he owed more than the amount claimed."
>
> The grounds accepted in the magistrate decision, were recognised as
> being invalid, in that these grounds were [improperly] changed for the
> appeal to: 'oh well, if you want effect to follow cause, then the amount
> admitted as owing at the summons issue date, also exceeded the claim.'
> This new ground had not been alleged at the magistrate hearing nor in
> the Plaintiff's papers.
>
> A Supreme Court of Appeal applicant who applied for a mandamus,
> attempting to force the residents of a black township to pay their
> municipal, costs contrary to the revolutionary protest promoted by the
> ANC before *they* took power, received the following finding in,
> Kempton Park..Metrolpolitan..v Kelder 51/98 (31 March 2000):
> ] The council, as has been stated, owes its existence to the
> ] provisions of the Local Government Transition Act 209 of 1993
> ] and the proclamations made in terms thereof. Its powers and duties
> ] are conferred by the Constitution, by other statutes and the relevant
> ] principles of public and administrative law. To impose upon it additional
> ] duties in accordance with the principles of private law seems to me to
> ] negate its function as an organ of state and a branch of government.
>
> I.e. the SCA said: 'the law between citizens and municipal
> authorities does NOT follow the laws between ordinary [free to
> chose] creditors/suppliers and debtors/consumers. And such
> inappropriate laws should not be projected/interpreted to apply
> between municipal authorities and its captive clients.'
>
> The law applicable to this matter - ordinance 17 of 1939, S 49(2) reads:
> "If any charges due...shall *REMAIN* unpaid for a period of six weeks after
> the date on which written notice *SHALL* have been given by the council..
> the council may proceed..for the amount of *SUCH* charges or any part
> thereof ...";
> and interprets to rule:
> 1. before legal proceedings, proper written notice of arrears is mandatory;
> 2. such legal proceedings restrict the sued amount, to the notice amount.
> Ie. charges incurred AFTER the mandatory notice belong to a different
> action.
>
> Importantly S 51 allows the council to withhold transfer of the property
> until all charges owing for several years are settled. I.e. any further arrears
> after the initial mandatory notice can be recovered by further notices.
> Ie. the normal debtor/creditor litigation procedure, where the amount
> owed can be adjusted/calculated up to the hearing date, so that the
> parties can DISENGAGE, does NOT apply, since the property owner
> CANNOT disengage from the monopoly-supplier municipal council.
>
> The above evidence/argument: that the default judgment was properly
> limited to the pre-mandatory-notice cause of action is confirmed
> independentely by any single one of the following four facts:
> 1. the ordinance 17 s 49 interpretation;
> 2. all monthly statements after the mandatory notice listed the "Balance
> handed over" [actual words] being properly equal to the FIXED claim,
> and separate from the accumulating amount owing -- but not yet
> sueable in terms of the ordinance.
> 3. The summons [contrived to be delivered to the property not occupied
> by the owner, to facilitate a default judgment, whereas other
> correspondence was posted and received] correctly sued for the
> pre-notice charges only.
> 4. The common-law requirement that the summons must adequately
> specify the cause of action, to allow the defendant the properly defend,
> was vague, but DID correspond in amount [correctly per 17/s49]
> exactly to the mandatory arrears notice.
>
> At the appeal hearing, the appellant was still unaware of ordinance 17 s49,
> and his prepared argument was limited to rebutting the claim that
> events which occurred after the judgment [and were random/uncertain]
> could justify such judgment. Ie. the written magistrate's grounds were
> attacked, and the appellant was not prepared for a new/different
> argument.
>
> Importantly, confirming facts 2, 3, 4 above: were all in the appeal record,
> and hence the necessary allegations were made and proved.
>
> Any single one of these three facts suffices for a defense.
>
> The self-represented appellant had not prepared himself to need to explain
> to High Court Judges, the simplistic inferences that facts 2, 3, 4 implied
> that the cause of debt sued for was restricted to the pre-notice charges.
> Again he assumed [apparently wrongly] that the record had been read
> and understood, before the hearing.
>
> ------ The above evidence/argument now serves merely to rebut later
> grounds for rejecting a further [second] rescission application.
>
> The substantive grounds for that application, which were not rejected, were
> that the mandatory notice was not proper. The procedural grounds for
> rejecting the application [which application is allowed by rule (8) "Where
> the rescission..is sought on the ground that it is void ab origine..within
> one year after the applicant first had knowledge of such voidness.."];
> were given as "these new grounds should have been given at the first
> application".
>
> It is contended that multiple proofs may exist to confirm any fact; but
> that any one single valid proof suffices as confirmation.
>
> Accordingly, since the evidence and arguments of the first application
> [given above in full] are valid, there was no need to find and bring the
> argument of the second application, except for the mistakes of the Courts.
>
> That Counsel for the council was allowed to change the argument given
> at the magistrate level, for the appeal; and yet denies the defendant the
> right to bring a new ground for the second application, demonstrates
> gross injustice.
> ----------------
>
> A Supreme Court of Appeal precedent for the second application, which
> my own research uncovered, and was not raised by the attorney who
> brought the second application is: Weenen..Local Council v.. [SCA 399/2000]
> ]The only defence relevant to the
> ]appeal raised by the respondent was that the amounts claimed were
> ]not due and payable because the appellant had not complied with the
> ]provisions of s 166 of the Natal Local Authorities Ordinance, 1974
> ]....
> ]In the result, the appeal is dismissed with costs.
>
> We note how the council officials/pig-heads had no problem in opposing
> the decision, right up to the SCA level; because the tax payer had to pay
> for their incompetence.
> ----------
>
> Q - how does the 'procedural' relationship between the two
> applications potentially play out ?
> In that the first appeal [and later application for further leave to appeal]
> was refused, may the second application's appeal, still hear the facts and
> argument of the first appeal, as given here, in order to realise/confirm
> that the second application, although also valid, was not needed except
> for the mistakes of previous Courts. Or does the second applications'
> appeal have to pretend that the previous findings are valid until over
> turned -- which needs a higher Court ?
>
> Q - Does this give me a chance/justification to apply to [an existing]
> 'slightly' higher Court for the second appeal, ie. Transvaal Provincial
> Division instead of Witwatersrand Local Division ?
>
> Thanks for any input,
>
> == Chris Glur.
ja neé, vertel gerus meer.
PS
Res van die ghêng, het een van julle dit gelees?
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| Re: Die wet/Regs vraag: fault these 'heads of arguments' [boodskap #114208 is 'n antwoord op boodskap #114207] |
Vr, 06 Julie 2007 16:10 |
Daun Johnson
Boodskappe: 1155
Geregistreer: Januarie 2009
Karma: 0
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Senior Lid |
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On Fri, 06 Jul 2007 12:34:37 +0200, Ferdi wrote:
> On Thu, 05 Jul 2007 16:16:33 +0200, Dave wrote:
>
>
> > PS
>> Res van die ghêng, het een van julle dit gelees?
>
> Daar is kwalik sprake van metafoor en niks rym nie.
>
Jy meen soos luister daarna 'met 'n af oor'?
Jy't dit seker nie rêrig gelees nie, Riaan?
Jy't mos vele beter dinge om te doen.
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