Some people have been asking for a more in depth explanation for what is happening with the Constitutional Case/Class Action. So this is it. For people who are getting this by email who do not subscribe to updates by Twitter/Facebook or Linked in, instructions are below. It is best to subscribe to this as this is our main way of giving updates which happen on average weekly but sometimes with a lot in a short space and then sometimes there is no news for a while.
THE LARGER BATTLE
However, even those getting those updates are asking for more detail. Last year we approached the constitutional court for direct access. The court did not grant direct access. It does not normally grant direct access but had once before in a housing case. We now needed to file in the High Court. However, the application had a lot of very significant effects. It showed the banks we are serious and the problem was not going to go away. It made the Constitutional Court aware of our application, which will help us if we need to approach them again on appeal after we file now. And it put our cause before the public (including judges who do watch TV and listen to the radio) and the banks and gave them both some time to get used to the idea that maybe the banks should compensate those who had been harmed. When we talk to the banks about settlement now, it is an idea that has been in their heads for more than a year as a serious problem for them. Its not new. This is important.
We need to remember that this is not just a legal but a media battle. A battle in the realm of ideas. The first program on Carte Blanche in 2016 that we did about the sale in execution problem had a direct effect on creating the big Rules Board meeting and finally the new Rule 46A in Dec 2017. This new rule allowed reserve prices for the first time. Continuing media exposure including that of our ConCourt application last year as well as the logical effects of the new rule 46A would naturally lead to the Full Bench decision in the last month or so that there must be reserve prices except in exceptional circumstances. This latter is another major victory for our cause. It also helps with our Constitutional Case because the fact that the law has changed shows that it was bad before. In addition, our new application can be more focused because we don’t need to change that law. It has already been changed.
Meanwhile during the year, we have incorporated a lot of better concepts into the case. We have now made it an action not an application. That means there will be a trial where we can call lots of witnesses. This gives us an opportunity to put on record the many abuses that the banks are guilty of and prove that they happen regularly. We can prove that the banks do not simply sell as a last resort. We can also subpoena bank staff and ask them about their practices. This means first of all that we can give the lie to their claims to be acting ethically in terms of the law. The trial may well attract publicity similar to the Oscar Pretorius trial and the banks don’t like their misdeeds to be shown in public for all to see.
We have also incorporated a lot of new ideas into the case. For example, that the banks must at least be liable when as well as selling for too little, it also sells when it is not a last resort. (The ConCourt decided in Jaftha that it had to be a last resort). In addition, we incorporated the idea that even if the court decides the banks are not completely liable then surely they are at least liable for a percentage and thus victims should be entitled to at least a proportion of their losses. All this makes us much more likely to win. So what we have done this year has been well worth the wait. It would not have been wise simply to file the same application in the High Court that we filed in the Constitutional Court the next day.
Further, I continue to research for my PhD further examples of what happens around the world and on the constitutionality of sale in execution. Every year this body of knowledge grows and becomes more logical and coherent. I have now been studying this area of law in an academic context with support from experts at universities for over five years.
In addition, we have a prominent NGO that is considering joining the case on our side. They have some capacity problems at the current time, so they will probably join after we have filed. However, if they do join as amicus curie (friend of the court) then it will have been worth the delay. Similarly, we have more legal professionals assisting now than before. All this increases our chance of winning.
In addition, ABSA in particular have been trying to attack me personally, managing to get costs orders against me (potentially hundreds of thousands that I need to pay to ABSA myself) and asking for bar counsel investigations against me. Defending against this kind of below the belt/ playing the man not the ball attacks has also slowed things down a bit. But when we are demanding many hundreds of millions in compensation, you can expert their true colours to come through. Nevertheless, we cannot be deterred by such intimidation. Justice must prevail.
However, that is not to say that we continue for ever making improvements to the case to increase our chance of winning. At some stage, we need to start the process and that time is now. In the next two weeks, we will write to the banks to offer them the chance to settle with us without fighting. There are various reasons that this might be advantageous for them. If they only have to pay our clients then it’s a lot less money than paying everyone in the country they have harmed. For us, depending on the offer, it may be better to take a reasonable amount than a chance of 100% and have it now rather than later. Last year they rejected settlement. We will see what happens this year. It is also possible that some banks will settle and others will not. Those with a smaller liability can settle and be the ‘good bank’ and benefit from the media cycle for the next year against their competitors. We have already seen different reactions from different banks. Most appear to us to have slowed their sale in execution practice.
If they refuse to settle then we will file our application for the certification of our class action in about a month from now or so. Many people have been referring to our action as a class action for a long time and we always correct them calling it a ‘group action’ which is a new phrase that I made up. Our action at the moment is for about 300 specific people, not a ‘class’ of people. If we convert it to a class action, it will be for every person in the country that has ever had their house sold in sale in execution- that is the ‘class’ of people. This involves a ‘certification’ process.
If the banks decide to fight then expect them to do everything they can with the best of legal people. They will criticise our papers and bring up ceaseless technicalities. When they do we will amend to satisfy their constant nit picking. They are certain to say our matter is without merit, that they have done nothing illegal etc etc. They may even win at various stages and we will have to redraft and come again. It is unlikely to be an easy battle. But we will continue. At the end of the day, we expect the Constitutional Court to be with us, and contrary to previous experience, the High Courts have also been ruling against the banks recently, so maybe we won’t even have to go there. If we need to, however, we will.
So, the stages are as follows:
1. Offer settlement
2. Certify class action.
2.1. Either appeal or file action based on class action certification
3. Probably interlocutory (‘in between’) applications by the banks to delay.
5. Possible Appeal to the SCA
6. Possible Appeal to the ConCourt.
(Simultaneously, participation in changes in the law from Rules Board/ Parliamentary Committees/ Department of Justice and others. Continued media presence. Continued Legal Research for case.)
(delivered today, 12th September 2018)
This is definitely a win for the people of South Africa against very dodgy banking practice.
(The judgement, heads and other documents can be found here).
What is most significant about this judgment is firstly that it says at point 4 of the order that “save in exceptional circumstances that reserve prices should be set”. This is important as some banks were apparently arguing (unbelievably unethically) that reserve prices should only rarely be set.
Secondly, it makes clear that if you pay off your arrears then the contract revives (this is not at the discretion of the bank) and you can continue with the bond. This is not at the bank’s discretion.
It was mostly about whether the money judgement and execution (selling of house) should be heard together. The decision was they should be. This is better in the sense that legal costs would be lower but worse if it results in less delay as delays can allow the debtor to pay the arrears or sell the house himself. But if orders are given that allow a time to sell before the house is sold by the sheriff then this remedies this.
What still needs to be decided is how to calculate these reserve prices.
In our view they should start at 90% of the market value of the property after the levies and rates and taxes have been taken off. After each 3 months it can drop a further 5% for those properties that still haven’t sold.
If the property is not in good condition then the market value would be lower. The market value in this definition is what the property would sell for if sold by a few estate agents over 3 to 6 months in a normal sale situation.
In this judgment there was an indication that each case the reserve price should be decided on the merits.
Then the next question is how we can improve the sheriff’s auction system to deliver these prices.
I was just talking to clients now who has had R200,000 added to their bond account for legal costs who has never even been to court in any kind of opposing action against the bank. Something tells me they might be getting ripped off.
There are limits to what attorneys can charge for what they do:
In the High Court you can find them at: http://billsofcosts.co.za/case-law/send/7-court-tariffs-in-south-africa/379-high-court-tariff-1-november-2017.html
In the Magistrates courts the tariff is lower: http://www.justice.gov.za/legislation/notices/2015/20150123-gg38399_rg10349_gon33-RulesBoard.pdf
So what to do is list and the phone calls, letters, etc that you have got, and count the pages of the legal documents you have received and put them in a spreadsheet.
Then put in the tarifff amount per page or phone call or whatever. Do a separate column for candidate attorneys and attorneys.
Its likely that in many matters that a candidate attorney drafted the document, so you should propose that this is the case until proven otherwise.
Note, one could argue that an excessive level of phone calls or letters might not be chargable.
(if any one knows if new tariffs have been made since 1 November 2017, please let me know, But it doesn’t appear so.)
I won against ABSA this week in the Gauteng North court at Pretoria .and on an interesting point. It was a leave to appeal which means I am asking the judge to consider that another court may come to a different opinion than the one that he has himself found on a judgment he made before. Needless to say, judges often don’t like to do this. In this case, it concerned a client where the bank got an order to sell his house (execution) BEFORE the new rule 46A became law. I was arguing that despite the fact that the rule was not in force at the time, the fact that the law had changed showed, in this case, that the previous law had been unconstitutional. Thus the change in this case moved the law to what it should have been. The judge took my argument and ran with it. That is not to say he says that IS the law, but he was convinced enough to find that another court may find that that IS the law. So he granted my client leave to appeal. If the appeal court does find this then even when orders of execution were granted before Dec 2017, the bank must still bring an application to set a reserve price and bring the municipal valuation etc. This would stop houses being sold for ridiculously low amounts, the norm before December 2017. #gooddayincourt.
Further to the Judgement of Judge Keightley in Mouton where ABSA bank asked the judge successfully for an investigation to be undertaken by the bar counsel into my conduct, I hereby announce that I am not in good standing with my bar council (the National Bar Council).
I will inform users of the website of any change in status once they have completed their investigation.
Adv Douglas J Shaw
Why Nkwana was decided wrongly.
Nkwana came before the court in April 2018. In that case it was argued that the pre Dec 2017 rule 46(12) was not unconstitutional because there was no evidence before the court that a reserve price would lead to a higher price.
Standard Bank’s evidence was effectively that a force sale necessarily yields a lower price than a voluntary sale. That may be true but forced sales around the world yield prices much closer to market value than ours do. Forced sales around the world yield rarely are allowed to yield prices of 90% off, not were they allowed to do so in our own Roman-Dutch legal history. In our past, the sale price needed to be confirmed to prove that it is reasonable.
The second argument from Standard Bank is that buyers fear the liability of rates and taxes and so offer lower amounts. That is certainly true, and has been changed in the new rules. Nevertheless, that is an argument for holding the rule unconstitutional also for that reason not for saving its constitutionality.
Thirdly, the prospect of having to evict tenants from the property is suggested as another reason why prices are lower. However, if debtors were given a fair market price for their property, which would usually in a working system be over the bond, they would move out quickly. It is because the debtors feel an injustice has been done and are justifiably angry that they refuse to leave.
The court found no evidence was produced as to what the reserve price should be based on and for that reason alone the case must be dismissed. Reserve prices must of course be based on the market price of the property.
The case seemed to rely on other cases inappropriately. Mouton was a case that was never argued by the debtors due to a shortage of funds ( I know because I would have been the one arguing it) and the judgment is thus based only on the bank’s point of view.
It is true that more is needed to establish proper prices than simply the setting of a reserve price. Reserve price in itself is not enough, we need a combination of techniques to restore constitutionality. Certainly, we should return to our historical practice of confirming the sale after the sale and not allowing sales below a certain percentage of the value, say 10 or 20% below, except in exceptional circumstances. The best process would be that they are automatically rejected below this amount and then the bank must approach a court to justify why they should be allowed regardless, such as because the property is in a poor state of repair.
Standard Bank are right, however, that sales without reserve will attract more interest. Of course, they will. Who would not wish to pick up a property for 90% off! But it is wrong to allow this. Yet, attracting more interest from buyers, in other words, creating more liquidity in the auction market is key to higher prices. And here we find further problems with our rules. We require a deposit of 10% of the price of the property. That one rule reduces the number of buyers by 99.9%. Very few South African except professional buyers with access to capital have R200,000 available to put down for a deposit. If this amount was reduced to 1% or better 0.1% then thousands of times as many people could participate. Certainly, some people would default on their purchases, but most people would prefer not to lose thousands of rands and would only bid for properties they wanted to keep. Thus, taken together with the failure to have a compulsory reserve price (the new rules only give the court the ability but not the obligation to set one), and the other aspects we describe below, the rules are unconstitutional.
A second important matter is the way the auction is conducted and here we may profitably compare the sheriff’s auction system prescribed by the rules with our private auctions which deliver much higher prices.
The learned judge misses the point when it come to property but maybe the point wasn’t argued properly in the papers. The property of which the debtor is arbitrarily deprived is not his house. This could also be an arbitrary deprivation if there were other options, that it was not a last resort. However, it may have been a genuine last resort in the case on Nkwana. However, the clearer example of arbitrary deprivation of property is the equity in his property, not his house as such. It is not necessary for sales in execution that the person should lose the equity in their property. Houses can be sold for more.
However, the judge is probably right when he says that it is the legislature that should put in new laws rather than the necessary changes being rolled out by court orders, but if so, he should have instructed the Minister to do so.
This is a sister site to bankinglawadvisor.co.za. If you want an appointment with Bizzy Khoza or Adv Douglas Shaw (as briefed by Bizzy Khoza to see you) then email firstname.lastname@example.org.
or go to www.bookeo.com/bankinglawadvisor to make your own appointment (quicker). See How to book your own appointment.
We have gathered the information from this website into a number of categories each with an index. These are:
Initial : everyone should read these articles as it gives you the basics and tells you how we work: Index: Initial Information – what you need to know about dealing with BLA
General interest: specialised questions that dont apply to everyone will appear here. Index: General interest
Stopping the sale: Is information about what happens before the sale. Index: Stopping the Banks Selling Your House
Constitutional case: This information is about what happens after the sale and how you can join our constitutional case to get compensation. Index: Constitutional Case – Compensation for those whose houses have been sold
Advanced: This is if you are interested in banking and money in general and want to read about how it all works. Index: Advanced