New Economic Rights Alliance???The Big Case?

**Citizen X** · 05-Dec-12, 02:35 PM

Originally posted by ScottyC

The banks drew and exception. We amended our summons. They banks drew exception to our amended summons. Now we have to go to court to force them to reply. What can I say?

Dear Scotty,

I would like to impress upon you,that I appreciate the fact that you clarify these matters to us, the South African public, you are currently far more open and trasparent than the banks

. I can't see that the notice of exception to the amended summons will succeed! In your favour, you do have several plaintiff's. It will not be in the interest of justice to throw this matter out simply on defective summons alternatively amended summons. If you were to ask me a simple question: Do you feel the banks sorry? Then, my simple answer is , 'No, I don't feel the banks sorry and no I'm not going to lose any sleep becuase of the banks'!
What was the initial exception i.e. 'vague and embarrasing, argumentative or not clear and concise' or if a defective summons, then what very specific aspect of the summons was in question?
Plea: When the banks eventually do file and serve their plea, please share this with us?

Kind regards,
Vanash

**Citizen X** · 08-Dec-12, 01:28 PM

The High Court and Constitutional issues

I� like to take this opportunity to put some perspective on Constitutional issues in general and the High Court�s jurisdiction in particular. This has no particular reference to �NewEra,� it�s just that it�s an opportunity to clarify this matter. I will say this of NewEra though: In my opinion this is one of the most ambitious law suits in South Africa! This is indeed commendable! I�m traditional and almost spiritual when it comes to the prelude to an epic battle, as such, I can only wish NewEra everything of the best! We�ll have to wait and see what transpires. I�m confident that Scotty will disclose the banks plea [that is after the hearing for the notice of exception takes place and the banks eventually do plead, I want to see what the banks have to say.]

It�s noteworthy that this matter is not on appeal nor is it on review. It the case of a Plaintiff [joinder: several plaintiff�s with the same cause of action or question of law and/or fact]
1. A good place to start is with the Constitution of 1996 itself. Section 39(1)(c) of the Constitution reads as follows:-�When interpreting the Bill of Rights, a court, tribunal or forum- (c) may consider foreign law.�
2. The word �may,� can present itself as a verb or noun depending upon the sentence. The best way to really understand this word is to simply ask your-self: �What is the opposite of �may�?� The answer puts real perspective on things: the opposite of �may,� is may not.�
3. This is a discretionary power, which means that the presiding officers may or may not consider international law. This power is exercised judicially.(this simply means that the court will use its discretion)
4. Section 172 is entitled �Powers of courts in constitutional matters.� Section 172(2)(a) reads as follows:� This is where you can see for your very self how problematic Constitutional issues really are. If we take this section by section, you�ll see what legal hurdles you have!
5. Let�s start with section 172(2)(a) [ for those of you interested in how to read a section, 172: Section; (2): Subsection; (a): paragraph] SO, we addressing section 172(subsection 2) and [paragraph a) first:
6. It reads as follows:�The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.�
7. To appreciate what paragraph a is saying, you�ll have to consult paragraph b and d;
8. Paragraph b reads as follows: �A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct.�
9. Paragraph d is where it really gets interesting! It reads as follows:�Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.�
10. The inference is that regardless of what the High Court rules it still has to be confirmed by the Constitutional Court and any party, the plaintiff or the defendant may either appeal or apply directly to the CC to either confirm or vary the order.
11. International Law is a source of our Constitution BUT section 167(5) states, �The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force.�
12. The CC is still the only court which has complete jurisdiction on constitutional matters.
13. Section 39(2) of the Constitution of 1996 reads as follows: � When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.�
14. You must be able to distinguish between the bill of rights in the Constitution of 1996 and the other sections of the Constitution. I�m by no means suggesting that the other sections are not of importance but rather that when one mentions �bill of rights,� one strictly and only speaks of the rights mentioned in section 7 up to and including section 35 with the understanding that these rights can indeed be limited in terms of section 36 of the very same Constitution of 1996.
Keen to learn of any developments on this matter�

**Citizen X** · 20-Mar-13, 12:38 AM

Good evening Scotty,

I'm fairly certain that you will be open and transparent with us i.e. keep us abreast of developments.
Thus far, you've proved to be approachable and open and transparent. This matter is now in the public interest. I look forward to your post!!

**Darkangelyaya** · 20-Mar-13, 10:43 PM

Received this update per email:

'THE BIG CASE UPDATE: Judge van Eeden will hand down his ruling at 10h00 on Friday morning. Will NewERA's case (attached) be thrown out for being vexatious and / or "vague and embarrassing?" Or will the Judge ask NewERA to amend their summons and try again? Or will the Judge require the banks to respond to the allegations made against them?

We shall see...

One additional (and quite remarkable) point: We believe that the Reserve Bank had two Senior Counsels arguing their case today. The four major commercial banks were represented by three counsel, two of them senior. One SC was Gilbert Marcus, brother of Reserve Bank Chairman Gill Marcus. NewERA was represented by one junior counsel acting pro bono. The entire argument lasted no more than an hour. At an average of R50,000 for each of the SC's, one wonders: why all the trouble and expense to fight off nothing more than a "vexatious litigant?".

What can you do:

Spend 20 minutes skimming through the headlines and articles on our website. This page is the best and quickest summary of local and overseas news. For example: Did you know that Cyprus had to fight off the banks from seizing 10% out of their savings accounts to pay for their banks bailout? The same could be asked of Italy and now even New Zealand.
Join our Class Action and let�s sue the banks as a large group. Click here to join the class action.
Please support NewERA. Become a paying Member here.

And please note: Our annual AGM will be held in the afternoon of April 12th. We are looking for directors and volunteers for 2013. Please come and join us. We would love to have your support. (Details to follow in our next letter).

THE NEW ECONOMIC RIGHTS ALLIANCE'

**dcs** · 22-Mar-13, 12:30 PM

Clarity required.

I have a very layman understanding of things banking. I have gleaned a perspective of things which may not be entirely accurate and would appreciate someone could clarify things for me.

1. In South Africa, banks are required to retain 2.5% (I think) of every Rand deposited with them. So is a saver deposits R100 then the bank may lend out R97.50 of this amount. However, what in essence happens is that the borrower takes the R97.50 to pay a creditor who in turn deposits the R97.50 at a bank. This bank may now in turn lend out 97.5% of the R97.50. If this continues, ultimately the banks can lend out R4,000 (I think) on the original deposit.

2. If the bank then sells the debts/loans of R4,000.00 to a third party they will then be in a position to lend out a further R4,000.00 based on that original R100 deposit. This process could continue ad infinitum.

3. As I understand it, points 1 and 2 is what the US banks were doing and making an absolute fortune in exploiting this loophole(?). In order to make even larger profits they were badgering people who would ordinarily not qualify for a home loan to buy property as the bank did not care what happened to the repayments because they were sold on to third parties and were insured.

4. The upshot of this was that property prices rose out of proportion to their true value, but so did defaulters. Also, banks were illegally expanding the money supply which has its own set of issues.

5. In the nature of unsustainable concepts like this the bubble burst and the fallout has been the bank insolvencies, bail-outs and the current depression we are in.

I would like clarification as to the accuracy of points 1 to 5. Assuming that points 1 to 5 are substantially correct (and it sounds very much like a conspiracy theory to me) then is this what the SA banks are doing and is it part of the NERA court case?

I have heard that to counter this, Portugese Banks may only lend what was deposited originally (R100). I cannot understand how the bank can easily distinguish between an original and a secondary deposit. Scottish banks may only lend out on deposits of more than 100,000 pounds.

If this is indeed correct, then surely someone in authority should be doing something and not leaving it up to people like NERA ?

**Dave A** · 22-Mar-13, 01:51 PM

Originally posted by dcs

I would like clarification as to the accuracy of points 1 to 5.

I believe what you have missed in your logic is that the bank has to pay back the depositors

Alternatively they're just replacing one debt with another - they certainly haven't made R4k out of fresh air.

When it comes to the NERSA case, I think the crux is as follows:
1. The mortgages provided by banks are being converted into financial instruments and sold to 3rd parties (I believe this part is not disputed).

2. NERSA's argument is that because the bank has sold the debt, the debt has been paid and the debtor no longer owes the money.

3. NERSA seems to ignore the point that the debt is actually now owed to the third party that bought the debt. Or at best try to fudge past the point by claiming the debt will be settled by insurance against default.

The question that comes to my mind at the very shallowest level if we go down the rabbit hole of NERSA's thinking - who now owns the backing asset (the property)?
I reckon it would be the insurance company...

The problems go far deeper than that, of course - but it's the one obvious consequence that I see NERSA keeps silent on in their efforts to garner support for their effort.

There is no free lunch.

**dcs** · 22-Mar-13, 04:41 PM

Hi Dave,

Thanks for the response.