SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 17047/24
In the application between:
JYDE AREMU BREIMMO ADELAKUN
Applicant
and
FIRST RAND BANK LTD
t/a FIRST NATIONAL BANK
First Respondent
CHIEF EXECUTIVE OFFICER
& EXECUTIVE DIRECTOR
Second Respondent
DAVID NDABA (ADMINISTRATOR OF
FIRST RESPONDENT)
Third Respondent
SOUTH AFRICAN RESERVE BANK Fourth Respondent
GOVERNER OF SOUTH AFRICAN
RESERVE BANK
Fifth Respondent
PIET DELPORT Sixth Respondent
Coram: Acting Justice A Montzinger
Heard: 08 August 2024
Delivered: 12 August 2024
JUDGEMENT ON URGENCY
(12 August 2024)
Montzinger AJ
1. This matter comes before the court as an urgent application by the applicant,
Mr. Jyde Aremu Breimmo Adelakun, seeking various forms of relief against the
respondents. Mr. Adelakun, who represented himself, is apparently a citizen of the
United States of America with a qualification or some background in law.
2. The applicant's dissatisfaction with the first and fourth respondent, FirstRand
Bank Limited and the South African Reserve Bank respectively , began in 2018 when
his bank account with the first respondent was blocked. T he funds therein were
forfeited to the state under the Currency Exchange Act 9 of 1933 and its regulations.
3. A condensed chronology that I could extract from the papers filed, that
outlines the key events and basis for the applicant to launch this application , is as
follows:
3.1 On 28 August 2018 the first respondent, Firstrand Bank, received an
order from the South African Reserve Bank (SARB) under Exchange Control
Regulations 22A and/or 22C, which blocked the applicant’s account with
number 6 […] and prohibited any withdrawals or appropriations of the funds
therein. This order was to remain in force until expressly uplifted by the
Reserve Bank.
3.2 The first respondent on 1 October 2018 transferred the sum of
R6,447,708.71 from the applicant's cheque account to an exchange control
suspense account (account number 5 […]). Subsequently, the funds were
moved to an internal suspense account (account number 9 […]), pending
further instructions.
3.3 On 11 October 2018 a partial refund of R2,645,355.71 was made to the
applicant’s cheque account following further instructions from the Reserve
Bank. The remaining balance of R3,802,353.00 was retained in the internal
suspense account.
3.4 After allegation of fraud were made against the applicant by an entity
named Worldpay the applicant's cheque account was again placed on hold
during October 2018.
3.5 This court granted an order on 6 December 2018 placing a hold on the
cheque account pending the outcome of proceedings to be instituted by
Worldpay for the return of the allegedly stolen funds.
3.6 On 28 March 2019 the applicant was placed into provisional
sequestration by order of th is court and on 6 January 2020 his estate was
finally sequestrated.
3.7 A payment of R2,639,143.45 was on 23 April 2020 made from the
applicant’s cheque account to the account of the applicant's insolvent estate,
as directed by the administrators of the estate.
3.8 On 30 August 2021 a Notice and Order of Forfeiture was published by
the fifth respondent, the Reserve Bank, instructing that the funds held in the
blocked account (account number 6 […]) be forfeited to the State. This order
was published in the Government Gazette.
3.9 The First Respondent complied with the Notice and Order of Forfeiture
on 28 March 2022 by transferring R3,802,352.00 to the Reserve Bank.
3.10 The Applicant was notified of the payment of R2,639,143. 45 to the
trustee of his insolvent estate via a letter from the First Respondent dated 7
May 2024.
3.11 The applicant became a father on 14 June 2024 and launched this
application on 1 August 2024 for hearing on 8 August 2024.
4. The respondents, comprising FirstRand Bank Limited, its executives and
administrators, and the South African Reserve Bank, all opposed the application on
several grounds. These grounds included the court’s lack of jurisdiction, that the
matter lacked urgen cy and was an abuse of court process, and that the relief was
simply incompetent.
5. The applicant approaches the court n early six years after the events on which
he relies for the purported damages, on an urgent basis, claiming that the urgency is
triggered by his recent fatherhood on 14 June 2024.
6. While the application is obviously not urgent and while the normal order will
be to strike the application with costs, I decided to provide brief reasons since the
applicant represented himself. I will briefly rem ark on the fact that the applicant
represented himself and how that affected the manner in which I approached the
matter.
7. At the hearing of the matter, the applicant represented himself, while Mr. Smit
represented the first to third respondents (the “FNB r espondents”) and Mr. Majozi
represented the fourth to sixth respondents (the “Reserve Bank respondents”).
The relief the applicant seeks
8. As mentioned Mr. Adelakun, on motion and on an urgent basis, firstly, seeks a
declaratory order that the conduct of the FNB respondents violated his constitutional
rights as set out in the Bill of Rights . Similarly, he seeks a declaration that the
conduct of the Reserve Bank respondents also violated these rights, render ing their
actions unconstitutional and invalid.
9. In addition to the declaratory relief, t he applicant demands that the FNB
respondents immediately reinstate his personal savings account (account number
6[…]) previously held with FirstRand Bank.
10. He further demands the reinstatement of the amount of R 5,309,013.45 that
was held in this FNB account as of 27 August 2018. The applicant argues that this
amount was unlawfully frozen and subsequently forfeited without due process,
violating his property rights under section 25 of the Constitution. The applicant also
seeks an order granting him unfettered access to the reinstated account, insisting
that such access be provided forthwith or within five working days from the date of
the court’s order.
11. Then the applicant claims that the Reserve Bank respondents be mandated to
refund the amount of R 3,802,353. The applicant also requests that this amount be
refunded within five days of the court’s order, arguing that the forfeiture was unlawful
and conducted without providing him an adequate opportunity to contest the decision
of forfeiture.
12. The applicant also claims extensive damages. He claims R 60,000,000 (sixty
million rands) in general damages from the FNB respondents. He argues that the
unlawful freezing of his accounts, the withholding of his funds, and the failure to
provide due process have caused significant financial and emotional harm, justifying
the substantial damages he is claiming. He also seeks R 35,000,000 (thirty-five
million rands) in damages from the Reserve Bank respondents, arguing that their
actions, particularly the forfeiture of his funds, have resulted in severe financial
losses and infringements on his constitutional rights.
13. The applicant demands a mandatory interdict requiring all the respondents to
pay him an additional R 10,000 per day as damages from 28 August 2018 until full
compliance with the court’s judgment. This claim is pr edicated on the ongoing harm
he alleges has been caused by the respondents' failure to resolve the matter and
restore his financial standing.
14. The applicant’s claims are premised on the assertion that the respondents’
actions—freezing his account, forfeiting his funds, and failing to provide proper
recourse—were unconstitutional and invalid. He argues that these actions have
caused him severe financial loss, emotional distress, and infringe d his constitutional
rights. He explained in his papers that t he large monetary amounts claimed reflect
his view of the extent of the harm caused by the respondents' actions and the need
for substantial restitution and damages to address these wrongs.
The applicant in his personal capacity.
15. In our law, the right to access justice is a fundamental principle en shrined in
s 34 of the Constitution, which guarantees the right of access to courts. This right
implies that courts must be accessible, and procedures should not unduly hinder an
unrepresented person's ability to present their case. Recogni sing that unrepresented
litigants may lack the legal expertise to navigate complex legal procedures, courts
are expected to provide some degree of assistance or leniency, such as explaining
legal procedures or allowing flexibility in procedural matters.
16. However, this acco mmodation has clear limits. In the case of S v Khanyile 1
the court held that a judicial officer is required to assist an unrepresented accused to
present their defen ce properly and fairly. Similarly, in De Beer NO 2, the
Constitutional Court emphasised th at the rules of court and procedures must not
unduly prevent a party, whether represented or unrepresented, from having their
case heard.
1 S v Khanyile and Another 1988 (3) SA 795 (N)
2 De Beer NO v North -Central Local Council and South-Central Local Council and Others (2002) (1)
SA 429 (CC) paras 10 - 15
17. This assistance which no doubt also applies to civil proceedings is part of the
judicial duty to ensure a fair trial, but it does not mean the court should act as the
litigant's legal representative. The assistance should be reasonable and should not
compromise the impartiality of the court.
18. Despite this obligation to assist a litigant a court is not required to disregard
procedural rules or allow unrepresented litigants to disrupt the order of the court or
delay proceedings unduly. The principle of fairness applies to all parties, and the
court must ensure that the rig hts of the opposing party are not prejudiced by
excessive leniency toward an unrepresented litigant.
19. In the context of this matter, because Mr. Adelakun as the applicant,
represented himself I made every effort to ensure that he was fully informed of the
court processes and his rights. I explained the legal procedures in detail and offered
him the opportunity to seek legal representation, understanding the challenges he
might face in presenting his case effectively. Despite these efforts, and since it was
apparent that his application was marked by significant procedural and substantive
deficiencies, he still decided to press ahead.
20. The court cannot permit an unrepresented litigant to circumvent long standing
legal processes or present a poorly constructed and incoherent case simply because
of self-representation.
21. While I am aware and have compassion for the challenges faced by an
unrepresented litigant , like the applicant , and although a court should strive to
accommodate them within reasonable limits, th is accommodation cannot
compromise the integrity of the judicial process.
The procedural shortcomings in the application
22. Before a court can even consider the issue of urgency, it must first establish
its own jurisdiction over the matter. Jurisdiction is the foundation upon which all
judicial proceedings are based, and without it, a court has no power to hear or
decide a case, regardless of how urgent the matter may appear.
23. In th is scenario where the applicant resides in Cape Town, Western Cape
Province, and seeks relief against respondents who are all stationed in Gauteng,
with the events supporting the cause of action occur ring in Gauteng, the court in
Cape Town, Western Cape would need to determine whether it has the necessary
jurisdiction before addressing any basis of urgency. The absence of jurisdiction
renders any further inquiry into the merits of the case, even its urgency, irrelevant.
Thus, jurisdiction is the threshold issue that must be resolved before any other
procedural and substantive aspects of the case can be considered.
24. Jurisdiction is confined to the geographical area where the cause of action
arose or where the parties are domiciled. This territorial limitation ensures that courts
exercise authority within their legally prescribed boundaries. Given that the events
giving rise to the cause of action occurred in Gauteng and the respondents are
domiciled there, this division would lack jurisdiction. This conclusion is reinforced by
the principle of ratio jurisdictionis, which requires a sufficient connection between the
court's territorial jurisdiction and the cause of action or the parties involved3.
25. Furthermore, the principle of forum rei sitae , which asserts that the court
where the property or subject matter of the dispute is situated has exclusive
jurisdiction, would suggest that only the Gauteng courts have the appropriate
jurisdiction over the applicant’s complaint. The fact that the applicant resides in Cape
Town does not override this jurisdictional limitation, as where an applicant or plaintiff
is domiciled or resides, as a single consideration is not sufficient to establish
jurisdiction if the cause of action or the defendants are located elsewhere.
26. Therefore, a court after determining that it lacks jurisdiction, would ordinarily
not proceed to consider the issue of urgency, as it would have no power to grant
relief in a matter over which it has no ju risdiction. See Gallo Africa Ltd 4 where the
Supreme Court of Appeal emphasised that jurisdiction is a fundamental preliminary
issue. The court therefore cannot proceed to the merits of a case without first
satisfying itself that it has the legal authority to do so.
3 See Eilon v Eilon 1965 (1) SA 703 (A).
4 Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others 2010 (6) SA 329 (SCA)
27. Ordinarily I would also have struck the matter from the roll for a lack of
jurisdiction. However, in the interest of clarity and being mindful that the applicant is
self-represented and to prevent a further abuse of process on the same facts in a
different division, I therefore deal with the basis why I found that the matter lacked
urgency.
The lack of urgency
28. Rule 6(12) of the Uniform Rules of Court provides that an applicant must
explicitly set forth the circumstances rendering the matter urgent and demonstrate
that substantial redress cannot be obtained at a hearing in due course. Urgency
must be real and imm ediate, not contrived or self -created. The court must consider
whether the applicant will suffer prejudice if the matter follows the normal procedural
timeline, and whether the applicant has provided a satisfactory explanation for any
delay in bringing the application.
29. In East Rock Trading 5 the court emphasi sed that urgency is not established
merely because the applicant desires an expedited resolution. The applicant must
demonstrate that without immediate court intervention, a lack of substantial redress
will be suffered.
30. Upon reviewing the facts of this case, it is clear that the application does not
meet the requirements for urgency as set forth in rule 6(12). The applicant has been
aware of the actions taken by the respondents since 2018, including the blocking of
his account and the forfeiture of his funds. Despite this knowledge, the applicant
delayed nearly six years before seeking relief. This delay is inexplicable and
undermines any claim of urgency.
31. The purported trigger for urgency —the applicant’ s recent fatherhood on 14
June 2024 —does not justify the immediate and extraordinary relief sought. The
applicant knew of his financial circumstances long before the birth of his child and
5 East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2011]
ZAGPJHC 196 at par 6
has provided no compelling evidence that his situation has changed in a way that
would necessitate urgent court intervention.
32. The respondents were given an unreasonably short period of time to respond
to the application, which was filed on 1 August 2024, with a deadline for answering
affidavits set for 6 August 2024. This timeline is not only unreasonable but also
indicative of an abuse of the court process. Urgent applications are reserved for
matters requiring immediate intervention, not for situations where the urgency has
been self-created or where the applicant has failed to act timeously.
33. This is such a matter. T he applicant used a situation to create a basis to
approach the court to engage its resources and summoned respondents to court on
extremely unreasonable timelines . The respondents were then required t o defend a
matter that should never been pursued in this court, let alone have been instituted on
an urgent basis.
Conclusion
34. After careful consideration of the facts and legal principles involved, I am not
convinced of this division’s jurisdiction to entertain th e matter, given that the events
in question occurred in Gauteng, where the respondents are also based.
35. Even if jurisdi ction could be established, the lack of urgency still warrant s
striking the application from the roll.
36. In light of the above and since the respondents were compelled to come to
court to oppose an application that had a real jurisdictional impediment and failed to
address the urgency requirements, the applicant should be compelled to pay them
their full costs.
37. The application is struck from the roll with costs for a lack of jurisdiction and
urgency, on an attorney and client scale , including the costs of c ounsel, where so
employed.
____________________________
A MONTZINGER
Acting Judge of the High Court
Appearances:
Applicants’ counsel: Mr. Adelakun (in person)
Applicant’s attorney: In person
First to third respondents’ counsel: Mr. E Smit
First to third respondents’ attorneys: Jason Michael Smith Inc.
Fourth to sixth respondents’ counsel: Mr. M Majozi
Fourt to sixth respondents’ attorneys: Macrobert Inc.