Posted on September 30, 2014 by Admin
(Source: www.legaltalk.co.za)
In 2008 Tommy Molotsi, who is a pensioner, paid his bond with ABSA in full. ABSA phoned him and informed him that he had a 'rebate' of R 90 000 – 00 because he repaid his bond in 11 years instead of 20 years. He instructed Absa to pay this amount into his bank account at Capitec Bank, and ABSA paid this money then back to him.
Low and behold, then 6 months later out of the blue, ABSA demanded repayment of this monies. Tommy said no ways, my bond is paid up, I owe you nothing. Well, ABSA summonsed Tommy for this money, and by dark tactics got a judgment against Tommy.
Tommy then applied to rescind this judgement and it was later duly rescinded by the court because of all those scrupulous dark tactics that ABSA did to get this unlawfull judgement in the first place . ABSA then proceed to issue a Notice of Motion to reclaim the money. A Motion procedure is shorter as it can be done in a short time, but the consequences are not evaluated in full – one cannot give viva voce evidence unless the court refer the matter for evidence.
Tommy, all on his own stood up again and opposed the Notice and the court blew the bank out the window, WOW!
The court found no resolutions, no agreement, no compliance with NCA, the certificate of balance indicated debt of R 129 000 – 00 , the section 129 notice had a much less amount, an affidavit included by the bank an even lesser amount, and a founding affidavit by the bank backed by someone with no authority to be the deponent. In the replying affidavit, ABSA still persisted that there was no 'factual dispute' as alleged by Tommy. Wow, look at all these facts, but ABSA recon no "factual disputes"?
And still, ABSA thinks they have a case, and decided to apply for leave to appeal the above judgement against them.
One of the grounds for the application for leave to appeal was that the court misdirected itself and did not find a 'factual dispute and failed to refer the matter for oral evidence' – how can one persist in one way and then where the evidence is overwhelming, turn on oneself in heads of argument which was unfounded and not corroborated in the affidavits?
The deponent in the founding affidavit was different from the deponent of the replying affidavit. The bank spoke from two mouths! There was no corroboration or denial of the allegations by Tommy against the bank. It seems as it there was a tendency by the banks in the late 2008 to phone people who paid their bonds off and offered a 'rebate' – I wonder how many people lost their homes as a result.
Well, again, our hero Tommy walked away as a winner when all submissions from the Bar got blown away again as it had no substance. The result: The Bank's Application for Leave to Appeal was dismissed with cost on 18 September 2014, and we will edit this story later to add that judgement to this post too, as soon as it is received.
During all this time, Tommy stood up alone, representing himself, facing senior Council in the Courts, since 2008 up to now. Yes, he was guided by angle legal eagles, and when ABSA applied for leave to appeal, Attorney Corney Myles and Advocate Hennie van Rensburg came officially on record to hammer in the final nail in ABSA's coffin.
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