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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG )
Case No. 2019/38095
In the matter between:
STANDARD BANK OF SOUTH AFRICA LIMITED Applicant
and
DANIEL MOLOISANE Respondent
JUDGMENT
WILSON J :
1 The respondent, Mr. Moloisane, owns Unit 7 […], F[…] P[…], […] M[…]
Street, Florida Lake, Roodepoort ( “the property ”). The property is bonded to the
applicant, Standard Bank, as security for a loan advanced to purchase it. On 20
February 2024, my brother Adams J declared the property specially executable for
the full amount outstanding on the loan agreement. (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
SIGNATURE DATE: 5 March 2025
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2 On or about 8 August 2024, Mr. Moloisane self -drafted, served and filed
what he called an urgent application to stay the execution of, and to rescind, Adams
J’s order . The application is embodied in two affidavits, in which Mr. Moloisane says
that he had no notice of the hearing at which Adams J’s order was made, and that he had been making substantial payments – totalling some R140 000 – toward the
arrears due on the loan agreement since the special execution proceedings were instituted.
3 I cannot say whether these facts, if true, would have led Adams J 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.
4 Instead of delivering that answer, Standard Bank applied to strike Mr.
Moloisane’s application out under Rule 30 of the Uniform Rules of Court. Rule 30
deals with irregular proceedings. The irregularity alleged was that Mr. Moloisane had
not complied with Rule 6, in that the affidavits said to constitute Mr. Moloisane’s
application were not accompanied by a notice of motion setting out the relief Mr.
Moloisane seeks , together with the other particulars a notice of motion is required to
contain. Standard Bank then enrolled its application in my unopposed court of 17
February 2025. It sought an order dismissing Moloisane’s stay and rescission application with costs. Mr. Moloisane appeared in person, and confirmed that he was not, and had never been, represented by a legal practitioner in connection with his stay and rescission application, although he did benefit from the guidance of a lawyerly friend. 5 Even assuming (with some difficulty) that Rule 30 can be deployed in aid of
an order dismissing outright an application in which an irregular step has been taken,
Standard Bank has neither alleged nor demonstrated in its founding affidavit that it has suffered any prejudice as a result of the irregularity (on the requirement of
prejudice see Brenner’s Service Station and Garage (Pty) Ltd v Milne 1983 (4) SA
233 (W) at 237G) . Counsel’s effort to cure that defect in his written submissions
notwithstanding, it seems to me that t here is no such prejudice. Mr. Moloisane’s case
and the relief he seeks are clear enough, and Standard Bank is already aware of all
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of the other particulars that would have appeared in a notice of motion had one been
prepared.
6 Mr. Moloisane’s case for a stay and rescission is yet to be tested. Of
particular concern is whether Mr. Moloisane’s efforts to make good on his arrears would have earned him a postponement in circumstances where the mortgaged property was not his primary residence, or whether those efforts were sufficient to reinstate the loan agreement or create a real prospect of him doing so reasonably
soon. The fundamental point , though, is that Standard Bank is called upon to answer
Mr. Moloisane’s case on its merits. Standard Bank is not entitled to resort to the
manoeuvre of an application to strike out. Standard Bank’s application must be dismissed.
7 One further point calls for comment. 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 proceeding s which
must often seem to them excessively formal and festooned in unnecessary and
ritualistic language and behaviour.
8 It is a presiding officer’s duty do all that they fairly can to cut through those
formalities, and to seek to identify the substance of a lay litigant’s case, even if the
case has not been presented with the care or precision a court is entitled to expect from a legal practitioner with rights of appearance. As the Constitutional Court has held, “[p] leadings prepared by laypersons must be construed generously and in the
light most favourable to the litigant. Lay litigants should not be held to the same
standard of accuracy, skill and precision in the presentation of their case required of lawyers. In construing such pleadings, regard must be had to the purpose of the pleading as gathered not only from the content of the pleading s but also from the
context in which the pleading is prepared. Form must give way to substance” (Xinwa v Volkswagen of South Africa (Pty) Ltd 2003 (4) SA 390 (CC) , paragraph 13). The
substance of Mr. Moloisane’s case is clear on any sensible reading of his affidavits. It is time for Standard Bank to address that case.
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9 The application to set aside the respondent’s stay and rescission application
as an irregular step is dismissed with costs . Those costs are limited to the
disbursements the respondent reasonably made in preparing and presenting his
case.
S D J WILSON
Judge of the High Court
This judgment is handed down electronically by circulation to the parties or their legal
representatives by email, by uploading it to the electronic file of this matter on Caselines, and by publication of the judgment to the South African Legal Information Institute. The dat e for hand- down is deemed to be 5 March 2025 .
HEARD ON: 17 February 2025
DECIDED ON: 5 March 2025
For the Applicant: K O Moodley
Instructed by Ramsay Webber Attorneys
For the Respondent: In person