IN THE HIGH COURT OF SOUTH AFRICA

(XXXXXXXX DIVISION, XXXXXXXX)

Case Number: 15/XXXX

In the matter between:-

BANK XXXXXXX LIMITED Plaintiff

and

XXXXXXX XXXXXXXXXXX 1ST Defendant

(ID NO: XXXXXXXXXXXXX)

_________________________________________________________________

FOUNDING AFFIDAVIT

_________________________________________________________________

We, the undersigned, respective trustees of the Cestui Que Vie Trusts, namely:

XXXXXX XXXXXXX XXXXXXXXXX

(EXEMPTION ID NO: XXXXXXXXXXXXX)

and

XXXXXX XXXXXXX XXXXXXXXXX

(EXEMPTION ID NO: XXXXXXXXXXXXX)

do hereby solemnly affirm and say that:

1

1.]We are both people, self-employed, living at Plot XX, Hennopsriver,

and are respectively representing the Defendants at arm’s length in this matter

as agents with power of attorney in fact.

2.]The facts deposed to hereunder be both true and correct and are within the ambit of

our personal knowledge, save where the contrary appears from the context

thereof, in which event we verily believe them to be both true and correct.

CONDONATION AND URGENCY

3.]We are lay people and have never before had dealings with the law. Moreover, we

do not have the means to obtain formal legal representation.

4.] Accordingly, and in so far as it may be necessary, we pray that the above Honorable

Court condone our non-compliance with the Uniform Rules of Court.

5.]BE PLEASED TO TAKE JUDICIAL COGNISANCE of the following which Rights

‘applies to all law and binds the legislature, the executive, the judiciary, and all

organs of state’:

The Constitution of the Republic of South Africa

6.] “Since Baxter and Wiechers wrote their text books on South African administrative

law in 1984 and 1985 respectively, the underpinnings of the South African state

have been changed fundamentally by the interim Constitution and the final

Constitution. In particular, the constitutional system has changed; from one based

on parliamentary sovereignty to one in which the Constitution is supreme. Section

7(2) provides that the ‘state must respect, protect, promote and fulfill the rights in

the Bill of Rights’ contained in Chapter 2 of the Constitution, and s8(1) provides

2

that the Bill of Rights ‘applies to all law and binds the legislature, the executive, the

judiciary, and all organs of state’. Section 8(2) allows for the Bill of Rights to bind

natural or juristic persons who are not organs of state in certain circumstances. ” -

Judge C. Plaskett – The fundamental right to just administration in the democratic

South Africa; pg. 16

7.] Furthermore, according to this law that binds, the Bill of Rights clearly

protects the following non-derogable Rights:

10. Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.

11. Life

Everyone has the right to life.

8.]In addition, w, according to the Bill of Rights ss. 25(1) Property –

No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

9.]In addition, according to the Bill of Rights ss. 26. Housing -

1. Everyone has the right to have access to adequate housing.2. The state must take reasonable legislative and other measures, within its

available resources, to achieve the progressive realisation of this right.3. No one may be evicted from their home, or have their home demolished,

without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

10.] In addition, according to the Bill of Rights ss. 32 Access to information -

1. Everyone has the right of access to a. any information held by the state; andb. any information that is held by another person and that is required for

the exercise or protection of any rights.2. National legislation must be enacted to give effect to this right, and may

provide for reasonable measures to alleviate the administrative and financial burden on the state.

3

11.] In addition, according to the Bill of Rights ss. 33 Just administrative action -

1. Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

2. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

3. National legislation must be enacted to give effect to these rights, and must a. provide for the review of administrative action by a court or, where

appropriate, an independent and impartial tribunal;b. impose a duty on the state to give effect to the rights in subsections (1)

and (2); andc. promote an efficient administration.

12.] In addition, according to the Bill of Rights ss. 38 Enforcement of Rights.

Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are -

a. anyone acting in their own interest;b. anyone acting on behalf of another person who cannot act in their own name;c. anyone acting as a member of, or in the interest of, a group or class of persons;d. anyone acting in the public interest; ande. an association acting in the interest of its members.

13.] And, in accordance with the Bill of Rights ss. 39. Interpretation of the Bill of

Rights

1. When interpreting the Bill of Rights, a court, tribunal or forum a. must promote the values that underlie an open and democratic society

based on human dignity, equality and freedom;b. must consider international law; andc. may consider foreign law.

2. 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.

3. The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

14.] Additionally, in accordance with Article 21(3), of the Universal Declaration of

Human Rights: “The will of the people shall be the basis of the authority of

government…”

4

15.] Natural Law

16.] Two of the most basic tenets of Natural Law are:

1. That it is unlawful to harm others; and

2. That it is lawful to prevent deliberate harm from occurring or continuing if one has

reasonable ability to do so.

17.] The Golden Rule compels us to intervene when basic human rights violations

take place. Under Natural Law, our rights include but are not limited to: the

right to sanctuary, the right to contract voluntarily provided that we are

trustworthy, and the right to obtain all knowledge necessary to inaugurate a

truly viable future. These rights are to be enjoyed by all men and women, and

have never been – nor will ever be – the monopolized “property” of any group

that isolates itself from the whole. [ Source: http://www.itnj.org/knowledge-

base/resources/itnj-peoples-law-library/natural-law-2/]

18.] BE PLEASED TO TAKE JUDICIAL COGNISANCE THAT this Honorable

Court has jurisdiction to review matters pertaining to constitutional subject

matter jurisdiction; and, whereas International Law is deemed law within the

Republic and which this Honorable Court must consider.

19.] Notice to Principal is Notice to Agent; Notice to Agent is Notice to Principal.

IN LIMINE

20.] Summons was granted against the Defendants in the above Honorable Court

and under the above mentioned case number on the 14th day of January 2015.

21.] When we make legal averments we make them as advised by our

representatives.

5

22.] BE PLEASED TO TAKE NOTICE that our email correspondence goes as far

back as 2013 with employees of THE STANDARD BANK LIMITED and their

attorneys (refer to attached Annexure Z1, A2, A3, A4).

23.] We have been, and are continuing to assert our constitutional right to ask

questions and to have those questions answered; even to assert our right of

withholding payment, should we become aware and become of the belief that

banks are operating contrary to public perception and to which neither the

Plaintiff, nor their attorneys or assigns have properly responded to, nor have

locus standi to bring this matter before this Honorable Court as they are no

longer the holders of this alleged debt which we deny exists in the first instance.

24.] The following questions were posed to The BANK an attorneys:

Please confirm that the bank actually possessed the money prior to my loan

being granted?

25.] Would the bank be prepared to amend the credit agreement as follows: “We,

the bank, did in fact possess the money we loaned you, prior to the loan being

approved.”?

26.] Please can you send me a transaction certificate, as required by Generally

Accepted Accounting Principles (GAAP), proving that the bank was funded by

assets belonging to the bank at the time the so-called "loan" was made?

27.] Was the amount borrowed actually "deposited", as per the definition of

“deposit” in terms of the Banks Act?

28.] Did the bank record my promissory note (i.e. the loan agreement or other) as

an asset on your books? If yes, then where is the promissory note / negotiable

instrument now?

6

29.] Does the bank participate in a securitisation scheme whereby debts /

promissory notes are bundled and then sold-on to a third party/parties via

special purpose vehicles, entities or alike processes?

30.] Was my loan securitised?

31.] Regarding the security given to the bank by me, has this security been sold on

or given as security to another party?

32.] BE PLEASED TO TAKE NOTICE that it is our sincere wish and order that this

Honorable Court dismiss this case and strike it from the role with costs; In the

event that this Honorable Court erroneously sets this matter down for trial, then

read on:

Ad Paragraph 1

33.] This paragraph is denied. We have never had any dealings with the person

making this affidavit. It is denied that this person has direct knowledge of the

facts alleged. It is denied that simply having read the file establishes first-hand

knowledge. It is averred that the person who dealt with the account who knows

the arrangements made with us is the person who must depose to an affidavit

of this nature.

34.] In addition, the Plaintiff alleges to be the rightful holder of Mortgage Bonds B.

91404/2002; B161774/2004; B. 133504/2007. It is averred that it is not so. Only

a duly authorized Securities Intermediary of THE STANDARD BANK LIMITED,

hereinafter, ‘The BANK’, and entitlement holder of the aforementioned wet ink

original mortgage bonds has locus standi to appear before this Honorable

7

Court in order to prove up the alleged claim and accompanied by an Affidavit

made under the penalty and pains of perjury;

35.] Furthermore, it is evident in the attached copies of the mortgage bond

B161774/2004 that it is incomplete and therefore invalid. To verify this, and in

order that the Plaintiff may prove up the claim, is to have all original mortgage

bonds placed on record and presented before the Honorable Court as the only

possible way to prove beyond a reasonable doubt that the bonds in question

have not been traded on or securitized.

36.] Additionally, we wish to peruse any and all documents, files and transactions

using the aforementioned mortgage bond numbers as reference, albeit paper,

digital or microfilm. We wish to ascertain that the initial transaction meets the

lawful requirements which constitute the basic requirements of a valid contract

upon which this invalid claim is founded upon.

Ad Paragraph 2

37.] We deny this paragraph. The Plaintiff claims that ‘certain loans’ were granted

us. We now know what constitutes a loan, which is contrary to public

perception, and holding this claim to be untrue and Legal arguments will be

advanced at heads of argument stage with relevant cases, printed and

provided to the court (and the Applicant) on the day of the hearing or trial.

Ad Paragraph 3

38.] This paragraph is admitted: the documents are only copies; however, it is the

original documents which have been brought into question and we are of the

8

belief that the lender is no longer the rightful holder to make a claim. .

Furthermore, there is no accompanying Affidavit, affirmed or oathed, to

substantiate this claim and which is made under the pains and penalty of

perjury.

Ad Paragraph 4

39.] This paragraph is admitted: the documents are only copies.

Ad Paragraph 5

40.] This paragraph is admitted: the documents are only copies.

Ad Paragraph 6

41.] This paragraph is denied. We wish to establish by cross-examination of an

expert witness which will prove beyond a reasonable doubt that it is in fact the

Plaintiff which is in breach of its grants, loans and agreements upon which the

alleged debt is claimed while engaging in gross misconduct of the alleged

contract, which we deny is a contract, but in fact a bill of exchange, and as a

result are in contravention of numerous Acts, to name a few:

- Banks Act No. 94 of 1990;

- Mutual Banks Act No. 124 of 1993;

- Bills of Exchange Act No. 34 of 1964;

- Companies Act No. 61 of 1973;

- National Credit Act No. 34 of 2005;

And all Amendments.

9

42.] We decree it our constitutional right to withhold payment as per ss. 32 of the Bill

of Rights while the matter is being reviewed and we reserve the right to

counter-claim that it is in fact the bank that owes the First and Second

Defendants which are in fact, Cestui Que Vie Trusts and we waiver all rights to

“recognition as a person”.

43.] 6.1 We object. We deny any amount owing. We aver that in order for us to

prove what constitutes money and how credit is created, we will require

additional time to research, compile and file the necessary Affidavit;

44.] 6.2 We object. We deny any interest owing on an unlawful claim.

45.] 6.3 We deny this paragraph. Instead, THE STANDARD BANK LIMITED is

placing us under duress by threatening to unlawfully seize and sell our lawful

private property on the land which we are inhabiting and held by us, the priority

claimants and which has no relation to any herein claimed ‘certain’ property,

and such threat is in breach of numerous International Charters, Treaties,

International Customary Law, International Common-law and the Law of

Nations which is tantamount to an act of war.

Tenancy Rights

46.] TAKE NOTICE THAT there six (6) families with tenancy rights on the land and

held in trust in International Law which this Honorable Court must consider.

47.] Every man’s house is his castle.

10

Ad Paragraph 7

48.] This paragraph is admitted.

49.] Ad Paragraph 8

50.] This paragraph is denied. We aver that there is no valid contract, note,

mortgage bond; as a result the Plaintiff does not have the locus standi to have

this action enforced before this Honorable Court.

51.] 8.1 This paragraph is denied. There is a vast difference between suspending

EFT payment transactions when ‘exercising our right to ask questions and to

have those questions answered’ and, ‘defaulting on payment of money’.

52.] In the event that the court sets the matter down for trial, we wish for the Plaintiff

to produce an expert witness on money, commercial transactions and what

constitutes the basis of money, notes, mortgage bonds, bills of exchange in

order to be cross-examined by the Defendant’s counsel.

53.] 8.2 This paragraph is denied. The Plaintiff has no locus standi.

54.] 8.3 This paragraph is denied. The Plaintiff has no locus standi.

55.] 8.4 This paragraph is denied. We aver that we are still awaiting a proper lawful

response to our questions. We are unable to proceed without full co-operation

of the Plaintiff, specifically only those who are witness to this agreement.

11

56.] 8.5 This paragraph is denied. We aver that we are still awaiting a proper lawful

response to our questions. We are unable to proceed without full co-operation

of the Plaintiff, specifically only those who have locus standi regarding this

matter.

Ad Paragraph 9

57.] This paragraph is denied. We aver that no debt was incurred in the first place

and should the Honorable Court erroneously set this matter down for trial, we

wish to adduce further evidence by Affidavit in order to substantiate our claims.

58.] 9.1 This Paragraph is denied. We aver that no debt was incurred by THE BANK

and has no right to lay claim to the land with force of law:

59.] The greatest enemies to peace are force and wrong;

60.] Force and wrong are greatly contrary to peace;

61.] Force is inimical to the laws;

62.] 9.2 This Paragraph is denied.

63.] A common-law maxim: "If the plaintiff does not prove his case, the defendant is

absolved."

Ad Paragraph 1 [ page 3]

12

64.] Wherefore, the Defendant wishes for the Honorable Court to dismiss this

matter as the Plaintiff has no locus standi, nor a right of appearance in a court

of justice, or before a legislative body, on this particular question.

65.] With reference to 1.1, 1.2 and 1.4. These are denied for lack of evidence and

failure to co-operate.

Ad paragraph 2

66.] This paragraph is denied. There is a vast difference between the legal definition

of real land, immovable property, certain property and private property we

would wish additional time to file further substantive fact in this regard, if

required.

Ad paragraph 3

67.] This paragraph is denied. It is averred that the Plaintiff has no locus standi to

present this claim.

Ad paragraph 4

68.] This paragraph is denied. It is averred that the Plaintiff has no locus standi to

seek any relief.

Additional Information on Securitisation.

69.] The Commercial Crimes Unit of the South African Police Services has asked

for additional information relating to new evidence of securitisation fraud by the

banks. Researchers sampled 600 bonds and expected - based on the banks'

own reported figures on securitisation - to find between 120 and 200 of these

13

had been legally transferred to new owners. Instead, not a single bond had

been reflected as having a new owner. This is a statistical impossibility,

according to an expert statistician, pointing to widespread fraud by the banks.

(Refer to Annexure B)

70.] The bank has to prove has not proved that it is still the owner/holder of the

debt. It is averred that it is not. It is disclosed in the bank’s official documents

and accounts that it securitises some parts of its portfolio.

71.] It is not normal bank practice to disclose to clients when it securitises debt. If it

has securitised our debt, then it cannot bring an application for judgment in its

own name.

72.] We are therefore advised that the burden of proof can therefore only be on the

bank to prove it has not securitised the debt by producing a register of the

bonds in question in accordance with 63 of 2000 HOME LOAN AND

MORTGAGE DISCLOSURE ACT.

73.] Certain aspects of this matter require viva voce evidence to be brought in the

manner of a trial, therefore we are advised that this subject matter is not

suitable for the application process and we wish additional time to file further

writs, should this matter be set down for trial. Expert witnesses and witnesses

of the securitised transactions must be called, should our contentions regarding

the herein be opposed. We aver that this is a key point and the absence thereof

is in violation of the right to a fair trial in accordance with ss. 35(3) of the Bill of

Rights.

14

74.] We aver that the debt in question has been securitised. It is in-sufficient proof

for the bank simply to aver that a bond has or has not been securitised.

75.] It is material if the alleged debt has been securitised, in which case the bank

has no locus standi to bring legal process on the alleged debt. Only the new

entitlement holder may institute legal proceedings.

76.] It appears that not all securitised bonds are registered with the deeds registry.

(Annexure) It is averred that in order to prove that the debt is securitised or not

is for the Plaintiff to provide registers of which bonds have been securitised and

which have not.

77.] It is averred that affidavits are also required from the managers of these

securitised entities or such other person in whose knowledge such facts are in,

to confirm that the register is a full list of all bonds securitised in each particular

entity.

78.] It is averred that affidavits are also required from the managers of at the bank,

or such other person in whose knowledge such facts are in, to confirm that the

list of entities which hold bonds formerly with the bank, is accurate and

complete.

79.] Furthermore, if a mortgage bond is securitised, the law requires the banks:

· To inform the bondholder of the change in ownership under the National

Credit Act;

· To cede the mortgage bond to the new owner at the Deeds office; and

15

· Section 79 of the Banks Act prohibits the banks from assuming the role of

collection agent for the new owner.

It has long been suspected that the banks have been conducting securitisation

in secret and in doing so are in wilful violation of several statutes.

80.] This latest research increases pressure on government and the National Credit

Regular to establish a registry in terms of section 69 of the National Credit Act

(NCA).

81.] And, if this matter is not dismissed, we wish to call expert witnesses, for cross

examination, with respect to securitisation as we expect there to be disputes of

fact in this matter.

Conclusion

82.] The Applicant has no locus standi to bring this matter before the court. In doing

so, the Plaintiff is effectively committing fraud on the courts since they have no

legal right to be here. The Applicant is not in good faith and has terminated the

debt review process illegally or alternatively, not in good faith.

Wherefore we wish that the application is dismissed with costs and that a

declaration is made with respect to the constitutionality of foreclosures.

Falsa orthographia, sive falsa grammatica, non vitiate concessionem. Neither

faulty spelling nor faulty grammar will vitiate a grant or a wish. Neither false

Latin nor false English will make a deed void when the intent of the parties

16

plainly appears as per the Plain Language Movement and in accordance with

The Golden Rule.

Statement of Truth:

The deponents solemnly affirm that:

they know and comprehend the contents of this declaration by their own hand;

they have no objection to declaring their whole truth as far as they know it;

they consider their statement of truth as far as they know it to be binding on

their conscience; without prejudice; all right reserved.

Dated on the land of Hennopsriver Valley, Southern Africa this

___ th day of _________________ , 2015.

By: Xxxxxxx of the Family Xxxxxx

______________________________

c/o [Name]______________________

[Address in Pretoria]

___________________________

Witnesses (first and last names): Witness our hand:

1.

2.

17

TO: THE REGISTRAR OF THE ABOVEHONOURABLE HIGH COURT OF SOUTH AFRICA(XXXXXXXX, XXXXXXXX)

AND: OPPOSING ATTORNEYS

18