The Big Case – in detail as of October 2018

Dear All,
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.

IMPROVEMENTS
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.

PERSONAL ATTACKS
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.

SETTLEMENT
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.

EXPECT DELAYS
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.

STAGES
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.
4. Trial
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.)