It seems judges are getting fed up with banks’ attorneys playing technical games in court, particularly when it comes to home repossessions, says a Moneyweb report.

Gauteng High Court (Johannesburg) Judge Stuart Wilson has dismissed with costs an attempt by Standard Bank to set aside a ‘stay and rescission application’ by Johannesburg homeowner Daniel Moloisane on purely technical grounds.

The homeowner was trying to stop the bank from selling his home at auction to recover its alleged arrears.

The bank's attorneys thought they could get rid of this inconvenience by arguing procedural points. The same court had earlier declared the property specially executable because Moloisane had apparently fallen into arrears.

Moloisane had subsequently scrambled to catch up on the arrears, making payments of R140 000 to the bank.

On this basis, he applied to the court to stay the auction and rescind the earlier judgment against him.

‘I cannot say whether these facts, if true, would have led Adams J (who earlier heard the case) to make a different order. But they are, prima facie, relevant to the question of whether special execution could have been avoided. They call for an answer from Standard Bank,’ reads the judgment.

‘Instead of delivering that answer, Standard Bank applied to strike Mr Moloisane’s application out under rule 30 of the Uniform Rules of Court.’

The bank claimed that Moloisane had not complied with court rules around the filing of a notice of motion, notes the Moneyweb report.

However, Wilson ruled Standard Bank had ‘neither alleged nor demonstrated in its founding affidavit that it has suffered any prejudice as a result of the irregularity’.

‘The bank’s counsel’s effort to cure that defect in his written submissions notwithstanding, it seems to me that there is no such prejudice. Mr Moloisane’s case and the relief he seeks are clear enough, and Standard Bank is already aware of all of the other particulars that would have appeared in a notice of motion had one been prepared.’

Wilson added: ‘In its founding affidavit, Standard Bank relies on what seems like the high-minded proposition that the rules of court apply equally to all litigants. Whether or not that is true, the equal application of the rules does not mean treating every litigant identically. Lay litigants are entitled to the most careful and sensitive treatment, as they seek to navigate legal proceedings which must often seem to them excessively formal and festooned in unnecessary and ritualistic language and behaviour.’

The report notes Moloisane’s case for a stay and rescission has yet to be tested in court.

Full Moneyweb report

Judgment