NOTICE OF MOTION IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

Case Number: .. Court a quo case number: 22113/2011

In the matter between:-

JACOBUS JOHANNESS JOUBERT BOSMAN

Applicant

~and~

THE STANDARD BANK OF SOUTH AFRICA LIMITED

Respondent

SUPPORTING AFFIDAVIT

I,

JACOBUS JOHANNESS JOUBERT BOSMAN

do hereby state under oath as follows;

i.

I am the Applicant in this matter and duly authorised to depose to this affidavit and to bring this application.

ii.

The facts herein contained are, save where the contrary appears from the context, within my personal knowledge, to the best of my belief both true and correct, and I can and do
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swear positively thereto. Where I make legal submissions, I rely on advice that I have received from my legal representatives.

iii.

I have acted in my personal capacity throughout proceeding before this application and indent doing so with the leave of the Honourable Court.

iv.

I am current residing at 328 Grus street Waterkloof Ridge PRETORIA, Postal Address, P. O. Box 95709 Waterkloof 0145 with contact details as follows, telephone number: 082 4414652, fax number: 0865147368 and email address: aloegel@icon.co.za.

OVERVIEW:

1.

The Applicant herein had unsuccessfully lodged an application for leave to appeal before this Honourable Court which was heard by the Honourable Judge C P Rabie on the 15th of March 2012, the grounds of appeal which are annexed hereto as JJJ 1.

2.

On the date of the hearing of the Appeal, the Applicant herein prepared and handed to the Honourable Judge a copy of its presentation, annexed hereto as JJJ 2.

3.

In relation to the above, the Applicant had contended, and in these premises persist to contend that the Respondent had failed to show proper cause that it has properly dispensed with its obligation in terms of Rule 18 of the Uniform Rules of Court and where the
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Respondent was obliged and required to produce documents to prove or disprove allegations made by the Applicant against the Respondent, had failed to produce same.

4.

The reasoning and contention held by the Respondent was that it was not obliged nor required to produce any such documents as the agreement of loan and covering mortgage bond was sufficient and suffice to properly dispose of the Respondents burden of proof.

SUMMARY JUDGMENT:

5.

The Uniform Rules of Court, Rule 32(2) make provision for , together with an affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount, if any, claimed and stating that in his opinion there is no bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay. and further If the claim is founded on a liquid document a copy of the document shall be annexed to such affidavit

5.1

In the matter of FirstRand Bank Ltd v Beyer 2011 (1) SA 196 (GNP) after an analysis of Rule 32(2) of the Uniform Rules of Court clearly shows that the court, before it can grant summary judgment, must from the facts set out in the verifying affidavit itself, be able to make a factual finding that [a] the person who deposed
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to the affidavit was able to swear positively to the facts alleged in the summons and annexures thereto and [b] be able to verify the cause of action and [c] the amount claimed, if any, and be able to [d] form the opinion that there was no bona fide defence available to the defendant, and that the [e] notice of intention to defend was given solely for the purpose of delay.

5.2

Juristic entities, like that of the Respondent, whom authorise employees to dispense and swear to the correctness of averments in an affidavit are to state how it obtained such authority. It follows that such authority must also be annexed to such affidavit. In this instance the Respondent had failed, neglected and/ or refused to address this requirement, therefore the application for summary judgment should have failed.

In the alternative;

5.3

Paragraph 6 of the Respondents loan agreement inter alia provides as follows: The nature and amount of any indebtedness of the Mortgagor to the Bank shall at any time be determined and proved by a written certificate purporting to have been signed by a manager or accountant for the time being of any branch or the head office of the bank . . .

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Insofar as the loan agreement alleges the Certificate of Balance purports to be a liquid document, there is no indication that the signatory, one Kervin Govender, is a manager of a branch or head of the Respondent, since he is merely indicated as Home Loans Legal Manager.

I submit that Legal Recoveries/ Legal Manager is not a branch of the bank as contemplated in paragraph 6 of the Respondent loan agreement and therefore the application for summary judgment should have failed.

6.

The Respondent had caused the registration of a Covering Bond, which includes an Acknowledgement of Debt. In accordance with the findings of Thienhaus v Metje and Ziegler Ltd, 1965 (3) SA 25 (A) the court pointed out that, in practice, mortgage bonds serve three purposes, viz, [a] to create a security interest, [b] to record the details of the obligation secured, and to [c] create a contractual debt. Williamson JA explained (at 31):~ clearly a mortgage bond can be utilised both as an instrument of hypothecation and as a record of the terms and conditions of the obligation in respect of which the hypothecation is to create a security; in addition it is a matter of common and usual custom in the drafting of bonds to incorporate therein an unqualified admission of liability by the mortgagor. The reason therefor is, however, certainly not that such an acknowledgment is required for the validity of the bond as a means of creating a real right by hypothecation in favour of the creditor. The origin
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and the prime purpose of the custom is the facilitation of the obtaining of a quick and easy remedy, such as provisional sentence, against the mortgagor in case of his default;

6.1

In contrast, Section 90 of the National Credit Act, 2005, prohibits any contract to contain an acknowledgement of debt;- Section 90(1) read with (2)(a)(i), (ii) (b)(i) and (c)(i);

6.2

Furthermore the inclusion of an acknowledgement of debt in the mortgage bonds, signed and authorised by an agent of the Respondent, on behalf the Applicants power of attorney defeats the ends of justice and is a direct contravention of the Consumer Affairs (Unfair Business Practice) Act, 1988;

6.3

Having regard to the above, such actions are contra bona mores, prejudicial and removes all common law defences the Applicant could raise. This is evident in the proceedings before this application. Therefore the Respondents application for summary judgment had to fail.

7.

The standard terms and condition of the Respondent declares the renouncement of all benefits from the exceptions which might or could have been pleaded insofar it places a bar to any claim the Respondent has under the mortgage bond. These presences are in
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contravention of Section 90 of the National Credit Act, 2005, Section 90(1) read with (2)(a)(i), (ii) (b)(i) and (c)(i). Therefore, the Applicant was barred from raising and entering its plea.

8.

Contrary to the provisions of Rule 14(2)(b), Respondent has failed and/ or neglected to annex the liquid documents, including the accompanying Powers of Attorney, as an annexure to the Deponents purported Affidavit. Therefore, the summary judgment had to fail.

9.

The State President has, in terms of section 10 of the Justice of the Peace and Commissioners of Oaths Act, 1963 (Act 16 of 1963), made the following regulation referred to in the jurat of the deponents Affidavit, i.e. Government Notice No. R.1258 dated 21 July 1972, as amended by Government Notice No. R.1648 dated 19 August 1977, and as further amended by Government Notice No. R.1428 dated 11 July 1980 and by Government Notice No. R.774 dated 23 April 1982 (the Regulations).

9.1

Regulation 1-1 provides as follows: An oath is administered by causing the deponent to utter the following words: I swear that the contents of this declaration are true, so help me God.

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9.2

I have good reason to believe that the Commissioner never administered the oath by causing the Deponent to utter the following words: I swear that the contents of this declaration are true, so help me God.

9.3

That wording does not appear from the jurat. If in truth and in fact the Deponent uttered the words I swear that the contents of this declaration are true, so help me God, therefore the Respondent has not complied with the requirements so set forth aforesaid. Having failed to do so, therefore Regulation 1-1;-

9.3.1 is peremptory;

9.3.2 the non-compliance thereof renders the deponents attestation void; and

9.3.3 the non-compliance thereof deprives the deponents purported Affidavit of its validity as an Affidavit.

10.

The Respondent s Affidavit does not comply with the provisions of Rule 14(2)(a) of the Rules of Court, in that the Deponent cannot swear positively to the facts, verifying the cause of action and the amount claimed, in that the Deponent has no personal knowledge of the registration of the First and Second Bonds nor the Certificate of Balance, Annexure JJJ 3 attached to the Respondents application for Summary Judgment;

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10.1

In order to attend to comply with the provisions of Rule 32(2) of the Rules of Court, the Plaintiff is obliged to file a Supporting Affidavit of personal knowledge deposed to by the Deponent;

10.2

The Applicant denies that the Deponent has personal knowledge and is able and capable to verify the cause of action and the facts required by Rule 32(2) of the Rules of Court.

10.3

The Applicant denies that Anthony Lorcan Kennedy is duly authorised to depose to the Affidavit and bring an application for summary judgment;

10.4

Anthony Lorcan Kennedy has failed and/ or neglected to attach a Resolution from the Board of Directors of the Respondent authorising him to depose to this Affidavit and to bring an application for summary judgement.

10.5

The Applicant therefore denies that Anthony Lorcan Kennedy, in the absence of a Resolution by the Board of Directors of the Respondent, is authorised to depose to the purported Affidavit.

10.6

The Applicant denies that the facts referred to in Respondents Particulars of Claim dated 6 April 2011 are within the personal knowledge of Anthony Lorcan
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Kennedy. The Applicant repeats that the employees of Respondent mentioned above have failed to file Confirmatory Affidavits in support of the Application for Summary Judgment. I reiterate my third point supra.

10.7

In this regard, the matter of Land and Agricultural Development Bank of South Africa t/a The Land Bank v The Master and Others 2005 (5) SA 235 (c) in terms of s 33 of the Land and Agricultural 952 Development Bank Act 15 of 2002 for recovery of moneys owing to a Bank not constituting management of 'the day to day affairs of the Bank' as contemplated in s 18 of the Act - Board or chief executive officer should therefore provide court with authority to institute such litigation by properly authorised resolution in terms of s 16 of Act In comparison see the definition of The business of a bank as defined in the Bank Act, 94 of 1990, as amended.

10.8

For these reasons the Respondents application for summary judgment had to fail.

11.

The Applicant signed a Power of Attorney on behalf of the Respondent to register the bond over the property as security, but the Respondent failed to annex same to their application, despite same being requested. The Respondent failed to produce same therefore a copy of the Power of Attorney cannot be annexed to this application, however, the following averments could have been made if the said Power of Attorney was presented;[10]

11.1

Ex facie the Power of Attorney it is clear that the name of the Conveyancer and/ or alleged Appeared, person appearing had been added by rubber stamp/ deleted by drawing a line through the name of the original appearing person and replaced with another person to the Power of Attorney subsequent to the registration of the bond;

11.2

At the time of signature the Power of Attorney did not contain the name of another person. The name of another person was clearly rubber stamped/ deleted by drawing a line through the name of original person onto the Power of Attorney after signature thereof by the Applicant, without knowledge or consent. The Applicant did not authorise another person to register the Bond. The Bond is therefore invalid.

11.3

In the event of it being contended by the Respondent that another person was substituted by the power of substitution vested in the Conveyancers mentioned in the Power of Attorney and that the Bond is therefore valid, the Applicant avers as follows:

11.3.1

Section 2(1) of the Alienation of Land Act, Act No. 68 of 1981 (the AOL Act) provides as follows:
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No alienation of land (after the commencement of this section) shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority.

In section 1(b) of the AOL Act, the definition of land includes any interest in land . . . .

11.3.2

A Deed of Substitution for the purpose of registration of a Mortgage Bond over the property is an interest in land and must therefore be in writing.

11.3.3

another person clearly never received a written Deed of Substitution by any one of the Conveyancers mentioned in the Power of Attorney because such Deed of Substitution must be filed with the original Power of Attorney in the Deeds Office, Pretoria, which it is not.

11.3.4

In the absence of such a written Deed of Substitution, the Bond is therefore invalid.

12.

It is clear that strict compliance with the provisions of Rule 32(2) is required for a summary judgment to become a final judgment, unless reversed on appeal. A summary judgment is an extremely extraordinary and drastic remedy, often referred to as a

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draconian measure. It shuts the mouth of the defendant finally. A party who seeks to avail himself of this drastic remedy must comply strictly with the requirements of the rule. (Paragraph [11] at 200D - E.)

12.1

It is so that the court has the power to condone mere technical non-compliance with the provisions of Rule 32(2), but cannot condone non-compliance with the safeguards built into Rule 32(2) for the benefit of defendants, for instance regarding hearsay evidence and the doing away with, or the relaxation of the test to be applied by every court, considering an application for summary judgment to be able, on the evidence adduced in the affidavit, to make a factual finding that the deponent was a qualified deponent, otherwise it would make a mockery of the said safeguards. See Paragraph [17] at 202E938 G.

12.2

a Court cannot condone non-compliance with safeguards built into a Rule 32(2) established for the benefit of Defendants. This was, with respect, an oversight of the Court, a quo, analysis of the facts.

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THE APPLICANTS FUNDAMENTAL CONTENTION

THE BUSINESS OF THE BANK:

13.

The Bank Act, Act 94 of 1990 specifically excludes the bank from engaging in securitisation where it is the holder of such security or has a vested interest in such security. The latter averment was emphasised by notice in the Government Gazette [No. 30628, Volume 511, January 2008] which amends the Bank Act by changing the business of a bank ~ [Section 1, definition] to exclude securitisation from the business of the bank.

14.

Furthermore a Bank is precluded from using its clients deposits for loans and are furthermore restricted in how it utilises its allocated capital and reserve funds and other funds in terms of Sections 70(2), 70(2A) and 70(2B). These prescriptions follow through and are further defended in the South African Reserve Bank Act, Act 90 of 1989.

15.

Commercial banks, like the Respondent, invest their money with the South African Reserve Bank and the interest received on such investments is called seigniorage.

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15.1

Ordinarily seigniorage is an interest-free loan (historically of gold) to the issuer of the coin or paper money. When the currency is worn out, the issuer buys it back at face value, thereby balancing exactly the revenue received when it was put into circulation, without any additional amount for the interest value of what the issuer received.

15.2

The solvency constraint of the South African Reserve Bank only requires that the present discounted value of its net non-monetary liabilities (separate from its monetary liabilities accrued through seigniorage attempts) be zero or negative in the long run. Its monetary liabilities are liabilities only in name, as they are irredeemable: the holder of base money cannot insist at any time on the redemption of a given amount of base money into anything else other than the same amount of itself (base money); unless, of course, the holder of said base money is another Reserve Bank/ Federal Reserve Bank reclaiming the value of its original interest-free loan.

15.3

Currently over half the revenue of Zimbabwe is in seigniorage. Zimbabwe has experienced hyperinflation, with the annual rate at about 24,000% in July 2008, indicating that prices doubled every 46 days.

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15.4

Currently notes and coins represent 6 to 5 persent in the market place, the remainder 94 to 95% are generated by banks, whom loan against their share capital and reserves which the banks has invested in property, short term assets and so on.

15.5

Until 1980 the South African Reserve Bank would issue directives as to the amount of reserves relative to the duration of the loan, the volume of credit advanced and the maximum growth rate at which credit extension could increase.

16.

Within the framework of co-operation between the South African Reserve Bank and Banks, a bank can loan what it has put into circulation, without any additional amount for the interest value of what the issuer received.

17.

Thus, a loan from the South African Reserve bank by a bank is interest free, less the cost of the manufacturing (print) of the note. This equates to a 95% interest free loan.

18.

From the aforementioned two particular legal questions are raised:-

18.1

In the first instance, the bank, in this instance the Respondent was not the institution that loaned, in first instance, the money to the Applicant. In other words, the Respondent only obtained the required funding once the Applicant had
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completed and signed the necessary contracts. Therefore, the lack of the Respondent disclosing to this fact in their contract failed the very basic requirement in contract law, that is, it lacked capacity to act. It therefore can also be said that there could have never been a true consensus between the parties. In conjunction to the aforementioned, the Respondent did not have the necessary capacity to act in the first instance, as it only became the holder of money after the conclusion of an agreement between the Respondent and the Applicant. The Respondents application therefore had to fail for the following reasons;-

18.1.1

The Respondent/ Applicant could never had consensus to concluded the agreement, in term of the general requirements of Contract Law;

18.1.2

The Respondent lacked the capacity to act, because it only became the holder of what was borrowed after the conclusion of the contract. It, the Respondent, therefore was never in possession of what was presented as being in their possession prior to the contract being concluded, in other words, the transaction was subjected to them obtaining the funds from another, the South African Reserve Bank.

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18.1.3

For the Respondent to have the appropriate and correct status, the contract should have clearly stated that it is acting as intermediary, subjected to the Respondent obtaining a loan from the South African Reserve Bank. This fact is not disclosed in the Respondents contract.

18.1.4

In addition, the Respondent does not disclose this fact in its advertisements.

18.1.5

The fact stated above remains intact, irrespective if the Respondent had utilised their security to obtain the loan on behalf of the Applicant, as it had undesirably deceived their truthful role, that is, acting as intermediary. The Applicant reiterates, its irrespective if the Respondent obtains what was required in due course, as the fact remains that the Respondent acted as intermediary.

18.1.6

The Respondent in this regard will argue, as they have done before, that the relationship between themselves and that of the South African Reserve Bank is one conjured in terms of legislation, thus the Respondent, like other banks, are exclusively and uniquely, authorised to utilise this future of advancement of loans. This argument, with due

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respect, has nothing to do with the fact that the Respondent still acts as intermediary, irrespective of their special relationship and/ or security.

18.1.7

It is the Respondent is required in law, including The National Credit Act and Consumer Protection Act, of which the latter derives its legislative inauguration from the South African Constitution, 1996, to disclose all material facts to a consumer and to inform a consumer of all material facts so that an informed decision may be formulated.

18.1.8

The requirements to disclose, which contention was in particular raised in these proceedings forgoing this application, was pertinent and important as the lack of disclosure raises questions as to the true intent of the Respondent, its reasons and in retrospect its hidden reasons for non-disclosure, as will be prevailed hereinafter.

18.2

When the Respondent obtained a loan from the South African Reserve Bank, it did so against its own security at no cost and close to 5% or less interest. Further, this loan was not executed with liquid money being borrowed, but rather by South African Reserve Bank bonds, in close resemblance to promissory notes. This equates no liquid money being passed from one to another, but rather a debit and credit entry taking place in each partys accounting records. The latter entries are
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then followed through to the Applicants account created by and at the Respondent.

18.2.1

This averment was placed before the Court, of first instance and its appeal, and summarily dismissed by the Honourable Judges presiding over this matter. Their reasoning being that, inter alia, society has moved from traditional cash transactions to electronic payment systems and that to retain traditional values holds no place in an ever changing society. The Applicant makes no objection against these findings, however, and more so, the Honourable Judges have displaced the Applicants contention, that is; Due to the Respondents use of electronic methods it has become so more efficient to debit and credit accounts with nothing more than nothing; whereas when liquid money is required to be withdrawn, the Respondent would simply place such funds into the possession of the drawer from reserved funds. In all other transactions it will simply pass a credit or debit as required. This is achieved by the very same technology we have become so accustomed to.

18.2.2

The argument will be raised, as before, that these presents have no fault or prejudice to the Applicant. To the contrary, given the mathematic
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calculations utilised in this process, an example being that the total exposure of Bank A is Bn1, it requires additional capital to extend and uphold its business for the next year. Thus Bank A requires an additional Bn1. For this, Bank A will borrow from the South African Reserve Bank bonds or credit notes at close to 5% or less, enter this credit into the account of client X. In other words, nothing other than an entry onto the account of X. X is now required to effect payment, first towards interest, cost then capital. If X pays Y, such credit and debit is done to reflect the accounting transaction. When X makes payment towards his account, the liquid money is received as close to 100% profit (100% profit is recorded as transaction fees and administration fees are recorded against the transaction).

18.2.3

From the aforementioned one can deduce that the Respondent is profiteering on no more than accounting entries, proverbial, empty boxes that are filled with liquid money from the Applicant.

18.2.4

In returning to the example forgoing, Bank X gathered only a paper loan against its own security at no risk and no interest, whereupon it will gain substantial profits, costs and fees, which in return will allow

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them to increase their investments with the South African Reserve Bank, so it can for ever increase its profiteering.

18.2.5

These instances, inclusive of the averments in paragraph 15, supra, places an unreasonable financial prejudice onto the Applicant, so much so, that the Legislature has asymmetrically authorised the Banks, like the Respondent, to print proverbial money at leisure to the expense and factual financial prejudice of the Applicant.

18.2.6

Had the Applicant been informed in first instance of the role the Respondent plays in procuring loans, e.g. its intermediary-ship, and the fact that loans are based on a measure of profiteering, there could never have been a meeting of minds in concluding the contract with the Respondent.

18.2.7

No contract can stand where it is shown that the very nature of the contract was to deceive, profiteer and goes against the moral fibres of the people, thus the Respondents contract stands contested.

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18.2.7

Within these premises, the Respondents application for summary judgment had to fail, as the Applicant had shown a defence, which in all probable cause, would allow thorough investigation by the Courts before, which would dispense the Applicants burden to show proper cause why the matter should continue by way of trial.

18.3

Given the facts above, consideration must be given that the Respondents claim would in effect be in-correct as its claim in liquid money has no basis, because the fundamental aspect is that which was borrowed was not liquid money, but it was no more than a promissory note, entered as a debit/ credit entry. To correct these premises, the Respondent would need to correct their pleadings, so it correctly reflects security granted or obtained on behalf of the Applicant, which will also equate to an amendment to the contract of first instance and the issue of a certificate of balance.

18.3.1

The fact that the Respondent claims liquid money (see agreement) and lacks to abbreviate on the fact that it, the Respondent, does not say the same about their borrowings being liquid money is clearly indicative that the Respondent was pre-empting, had knowledge and intended to deceived the Applicant from inception of the contract. In other words,
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why mention the payment to be made in liquid money in the first instance, where the obvious would suffice mutatis mutandis.

18.3.2

It follows that the claim of the Respondent would be in contravention of the In Dup Rule, so much so, that the interest charged would in fact be null and voidable as [a] the liquid money never received entry into the books of the Respondent, and in the alternative [c] interest charged on the capital is based on an illiquid transaction.

IN CONJUNCTION TO THE ABOVE (IN THE ALTERNATIVE):

SECURITISATION:

19.

Securitization is the financial practice of pooling various types of contractual debt such as residential mortgages, commercial mortgages, auto loans or credit card debt obligations and selling said consolidated debt as bonds, pass-through securities, or collateralized mortgage obligation [CMOs], to various investors. The principal and interest on the debt, underlying the security, is paid back to the various investors regularly. Securities backed by mortgage receivables are called mortgage-backed securities (MBS), while those backed by other types of receivables are asset-backed securities (ABS).

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19.1

As stated supra, paragraph 13 hereof, it is not the business of the bank to engage in or deal in securitization of its own contract. The Respondent is prohibited from such activities.

19.2

The publication annexed as JJJ 4 hereto confirms this. Paragraph 1 of this publication reads as follows: SA Home Loans (SAHL) is not a bank and does not accept deposits from the public. As such, in order to be able to fund the home loans which are given out to clients, SAHL (South African Home Loans) has set up a securitisation funding platform. and at paragraph 3 The capital markets are where long term funding (greater than one year in duration) can be obtained and it is, as such, the place where many lenders, banks included, would obtain long term funding for their longer term assets (such as home loans).

19.2.1

To achieve the aforementioned the process would in most instances be one where a suitably large portfolio of assets is "pooled" and transferred to a "special purpose vehicle" or "SPV" (the issuer), a tax-exempt company or trust formed for the specific purpose of funding the assets. Once the assets are transferred to the issuer, there is normally no recourse to the originator. The issuer is "bankruptcy remote," meaning that if the originator goes into bankruptcy, the assets of the issuer will not be distributed to the creditors of the originator. In order to achieve
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this, the governing documents of the issuer restrict its activities to only those necessary to complete the issuance of securities.

19.2.2

Accounting standards govern when such a transfer is a sale, a financing, a partial sale, or a part-sale and part-financing. In a sale, the originator is allowed to remove the transferred assets from its balance sheet: in a financing, the assets are considered to remain the property of the originator. Under South African accounting standards, the originator achieves a sale by being at arm's length from the issuer, in which case the issuer is classified as a "qualifying special purpose entity" or "qSPE".

19.3

For a bank like the Respondent it will be required to bundle the security (a bond registered over the title deed of the Applicant) with other agreements and assign the rights and title over to the particular securitisation broker or company. See annexure JJJ 5, JJJ 6, JJJ 7 and JJJ 8 hereto. Within these premises, one will note that the Respondent (bank) loses it rights and title to the security; therefore it cannot be the Applicant as purported in their proceeding before this court as they would lack locus standi.

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19.4

The originator (the Respondent) initially owns the assets engaged in the deal. This is typically a company looking to raise capital, restructure debt or otherwise adjust its finances. Under traditional corporate finance concepts, such a company would have three options to raise new capital: a loan, bond issue, or issuance of stock. However, stock offerings dilute the ownership and control of the company, while loan or bond financing is often prohibitively expensive due to the credit rating of the company and the associated rise in interest rates.

19.3.1

If for any reason the Respondent apportions that it has the proper locus standi, it had in any event failed to do so properly in their surmising proceedings;

19.3.2

Once again, the Respondent finds itself in a precarious position, as it once again was not the original moneylender, but intermediary with the added negative legal standing of lacking locus standi; in tallying19.3.2.1 The Respondent now also benefits from the transaction of securitisation two folded: ~

19.3.2.1.1

The Respondent gains further loan capacity as it has rid its debt and four folded its exposure to entertain more loans to the

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public with the unknown participation of the Applicant; and

19.3.2.1.2

Commissions or interest are earned by the Respondent of securitisation transactions; in other words, over and above earning in receivables from the Applicant it now earns income from securitisation as can be seen from annexure JJJ 6 to JJJ 9 hereto. Securitization makes it possible to record an earnings bounce without any real addition to the firm. When a securitization takes place, there often is a "true sale" that takes place between the Originator (the parent

company) and the SPE. This sale has to be for the market value of the underlying assets for the "true sale" to stick and thus this sale is reflected on the parent company's balance sheet, which will boost earnings for that quarter by the amount of the sale. While not

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illegal in any respect, this does distort the true earnings of the parent company.

20.

The Applicant had signed a limitless power of attorney authorising the Respondent to dispense with, inter alia, registration of a bond onto the title deed of the property, thus, the deed will form part of security held by the Respondent against the loan. However, the registration of the bond together with the power of attorney is utilised by the Respondent to gain funding from processes mentioned above and below. The Respondent therefore does not, and the power of attorney stipulates as much, require any further authority from the Applicant in whatsoever dealing the Respondent contracts into. The result being that the Applicant is in toto removed from any transaction the Respondent concludes with securities given by the Applicant.

20.1

The Applicant contends that the power of attorney was given explicitly for the exclusive use to register a bond, and nothing more, therefore the use of the power of attorney in any other formulations are without prior knowledge at the first instance, without consent, authority and such use is in conflict with the National Credit Act and law in general use, e.g. law of contract.

20.2

If such signature had been used, or in the alternative assigned to any other process of securitisation or in its third alternative to gain funds or loans relating to
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securitisation, or in its fourth alternative gain any benefit or in its fifth alternative placed an obligation on the Applicant, the Respondent had done so without explicit permission from the Applicant and the Respondent is in violation of the fiduciary relationship as between the Applicant and Respondent (as banker) and in terms of the Bank Act.

20.3

Had the Respondent gained from any securitisation, aforementioned, the Applicant is entitled to share in such profits, notwithstanding the fact that such profits would effectively lessen the Applicants liability to the Respondent.

21.

The process of securitization caused prejudice towards the Applicant as, unknown to the Applicant, another becomes the holder of its security (bond) and therefore the risk arises that such security can be called-up under any judicial process like liquidation or administrative orders;

21.1

The opposite of the above, any income derived from securitisation is deliberately withheld from the Applicant, or will never be brought under the attention of the Applicant as knowledge of such securitisation process has been withheld from the Applicant by the Respondent, so much so, the Respondent is not prohibited from making such entries into the accounting books of the Respondent.

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21.2

The process of securitisation deprives the Applicant of knowledge as to whom the true creditor is, its financial exposure which, inter alia, could include the Respondent acting as intermediary and/ or collecting agent for a third party whom could, once again, earn collection commission when acting as intermediary/ collecting agent.

21.3

Lastly, when the Respondent entertains processes like securitisation, why is it held so secretively; the subject matter being protected most vigorously by the Respondent? The only conclusion is that there is collusion between the parties that can only equate to profiteering. If, which the Applicant contends its not permitted in terms of how the Respondent deals therein, securitisation is allowed, why is it not disclosed or public knowledge, particularly prior to any agreement being concluded between the Applicant and the Respondent?

22.

Thus application for summary judgment must fail and the Respondent must amend its application proper. In this regard the Honourable Judge failed to realise that the defence so offered by the Applicant is technically difficult, obstructed by generality, implied contract law remedies and the bone of what is contended in defence is further frustrated by the Respondents unwillingness to go beyond its contract of loan, holding same as a proverbial shield from the seriousness of the allegations made by the Applicant.

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IN CONJUNCTION TO THE ABOVE (IN THE ALTERNATIVE):

SEIGNORAGE:

23.

This subject matter co-exists with paragraphs 13 to 18, Business of the Bank, supra, discussed separately due to its fundamentals being difficult to comprehend and/ or appreciate.

24.

Seignorage can be defined as one of the following as it relates to these proceedings;-

24.1

Historically, if a person has one ounce of gold, trades it for a government-issued gold certificate (providing for redemption in one ounce of gold), keeps that certificate for a year, and then redeems it in gold, that person ends up with exactly one ounce of gold again. No seigniorage occurs.

24.2

Instead of issuing gold certificates, a government converts gold into currency at the market rate by printing paper notes. A person exchanges one ounce of gold for its value in currency. They keep the currency for one year, and then exchange it all for an amount of gold at the new market value. This second exchange may yield more or less than one ounce of gold if the value of the currency relative to
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gold has changed during the interim. (Assuming that the value or direct purchasing power of one ounce of gold remains constant through the year.)

24.2.1

If the value of the currency relative to gold has decreased, then the person receives less than one ounce of gold, thus seigniorage occurred.

24.2.2

If the value of the currency relative to gold has increased, the redeemer receives more than one ounce of gold thus seigniorage did not occur.

24.2.3

Seigniorage, therefore, is the positive return on issuing notes and coins, or "carry" on money in circulation.

24.2.4

The opposite, "cost of carry", is not regarded as a form of seigniorage.

24.3

Ordinary seigniorage can be defined as an interest-free loan, for instance, of gold, to the issuer (South African Reserve Bank) of the coin or paper money. When the currency is worn out, the issuer buys it back at face value, thereby balancing exactly the revenue received when it was put into circulation, without any additional amount for the interest value of what the issuer received.

24.4

Historically, seigniorage was the profit resulting from producing coins. Silver and gold were mixed with base metals to make durable coins. Thus the British

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"sterling" was 92.5% pure silver; the base metal added (and thus the pure silver retained by the government mint) was (less costs) the profit, or the seigniorage.

24.5

Currently, under the rules governing monetary operations of major central banks (including the central bank of the USA and in similarity the South African Reserve Bank), seigniorage on bank notes is simply defined as the interest payments received by central banks on the total amount of currency issued. This usually takes the form of interest payments on treasury bonds purchased by central banks, putting more Rands into circulation. However, if the currency is collected, or is otherwise taken permanently out of circulation, the back end of the deal never occurs (that is, the currency is never returned to the central bank). Thus the issuer of the currency keeps the whole seigniorage profit, by not having to buy worn out issued currency back at face value.

24.6

The solvency constraint of the South African Reserve Bank only requires that the present discounted value of its net non-monetary liabilities (separate from its monetary liabilities accrued through seigniorage attempts) be zero or negative in the long run. Its monetary liabilities are liabilities only in name, as they are irredeemable: the holder of base money cannot insist at any time on the redemption of a given amount of base money into anything else other than the
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same amount of itself (base money); unless, of course, the holder of said base money is another central bank reclaiming the value of its original interest-free loan.

24.7

To illustrate the aforementioned points, in relation to modern day application of seigniorage, would be to reference Slate Online comments on 29th of July 2011, regarding the 2011 United States of America debt ceiling crisis. The author suggested that the United States of America Government mint a US$5 trillion coin, deposited the said mint with the Federal Reserve and used to buy back debt thus making funds available. The author, whom in effect suggested seigniorage was not off-beat, as it later appeared that the United States of America caused such a bail-out for its bankers, thus it created money out of nothing.

25.

Seigniorage is a concept utilised throughout financial history over decades, the only indifference being that modern seigniorage does not have physical liquidity like gold as the exchange principal; this has been replaced by axiomatic I owe you notes.

26.

To further illustrate the points above and below, the Basil Reports imitating from the Global Regulator, USA, formulates standards on bank capital adequacy, stress testing and market liquidity risk agreed upon by the members of the Basel Committee on Banking
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Supervision. Currently the Basil III report is the operative guideline internationally. These reports have been excluded from this application due to its volumes being in extensive; however copies of Basil II and III shall be made available at the hearing of this matter. A report by Deloitte has been annexed hereto as JJJ 9 as further referencing material.

27.

The Respondent having required a loan from the South African Reserve Bank in the historical sense of seigniorage, had occurred nothing more than the cost of the currency, its return value to balance to books, thus the loan was zero rated in interest; in the alternative the Respondent had acquired a loan based on bonds, zero rated in interest, however there is no seigniorage to be earned. See paragraph 24.2.4 supra.

28.

The Respondent, acting as nothing more than an intermediary with special legislative authority to conduct and conclude transactions of this nature, obtained a loan, free of interest, and elected to charge X% of interest per annum, the interest to be paid first, then the capital, had acted exuberantly, selfish, motivated by profiteering having absolute disregard for human rights, law of general application, manipulative in a monopolised environment, which include the Bank Act and South African Reserve Bank Act.

IN CONJUNCTION TO THE ABOVE (IN THE ALTERNATIVE):

FRACTIONAL RESERVE SYSTEM:

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29.

By definition, Fractional Reserve System, forms part of banking where banks maintain reserves (of cash and coin or deposits at the central bank) that are only a fraction of the customer's deposits. Funds deposited into a bank are mostly lent out, and a bank keeps only a fraction (called the reserve ratio) of the quantity of deposits as reserves. Some of the funds lent out are subsequently deposited with another bank, increasing deposits at that second bank and allowing further lending. As most bank deposits are treated as money in their own right, fractional reserve banking increases the money supply, and banks are said to create money. Due to the prevalence of fractional reserve banking, the broad money supply of most countries is a multiple larger than the amount of base money created by the Reserve Bank. That multiple (called the money multiplier) is determined by the reserve requirement or other financial ratio requirements imposed by financial regulators, and by the excess reserves kept by commercial banks like the Respondent.

30.

The South African Reserve Bank generally mandates reserve requirements that require banks to keep a minimum fraction of their demand deposits as cash reserves. This both limits the amount of money creation that occurs in the commercial banking system, and ensures that banks have enough ready cash to meet normal demand for withdrawals.

30.1

Problems can arise, however, when depositors seek withdrawal of a large proportion of deposits at the same time; this can cause a bank run or, when problems are extreme and widespread, a systemic crisis. To mitigate this risk, the
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governments of most countries (usually through their Reserve Bank, and in South Africa, the South African Reserve Bank) regulate and oversee commercial banks, provide deposit insurance and act as lender of last resort to commercial banks like the Respondent.

30.2

Fractional-reserve banking is the most common form of banking and is practiced in almost all countries, including South Africa. Although Islamic banking prohibits the making of profit from interest on debt, a form of fractional-reserve banking is still evident in most Islamic countries.

30.3

The nature of modern banking is such that the cash reserves at the bank available to repay demand deposits need only be a fraction of the demand deposits owed to depositors. In most legal systems, a demand deposit at a bank (e.g., a checking or savings account) is considered a loan to the bank (instead of a bailment), see Bank Act, repayable on demand that the bank can use to finance its investments in loans and interest bearing securities. Banks make a profit based on the difference between the interest they charge on the loans they make, and the interest they pay to their depositors (aggregately called the net interest margin (NIM)). Since a bank lends out most of the money deposited, keeping only a fraction of the total as reserves, it necessarily has less money than the account balances of its depositors.
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30.4

The main reason customers deposit funds at a bank is to store savings in the form of a demand claim on the bank. Depositors still have a claim to full repayment of their funds on demand even though most of the funds have already been invested by the bank in interest bearing loans and securities. Holders of demand deposits can withdraw all of their deposits at any time. If all the depositors of a bank did so at the same time a bank run would occur, and the bank would likely collapse. Due to the practice of the South African Reserve Bank, this is a rare event today, as the South African Reserve Bank usually guarantee the deposits at commercial banks, and act as lender of last resort when there is a run on a bank.

30.5

As an example for a very simple idea of how the fractional reserve system can work is as follows, if there is only one bank, for a Reserve Fraction of 10%, a bank can turn R1, 000.00 deposit M0 of money, into R18, 997.00 of "M1" money. Ignoring interest & fees, which makes banks even more profitable, this is how a bank can copy 90% of "M0" money to make "M1" money, where in this example the money loaned out is simply re-deposited in the bank and loaned out again, and so on, that is how the R18, 997.00 "M1" money comes from the R1, 000.00 of "M0" money. Banks, like the Respondent do this by accumulating loans and deposits (effectively multiplying) the "M0" supply to make a larger "M1" supply. Banks can collect interest on the spread of the higher loan interest from
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the lower deposit interests. Return on Investment (ROI) for a bank is theoretically infinite considering the bank is using none of its own money, if one excludes the cost of setting up and maintaining the accounting system.

PREJUDICE CAUSED TO THE APPLICANT:

30.6

If a bank run occurs, it results in crises like that of the Northern Rock crisis of 2007 in the United Kingdom. Furthermore, the collapse of Washington Mutual bank in September 2008, the largest bank failure in history, was preceded by a "silent run" on the bank, where depositors removed vast sums of money from the bank through electronic transfer.

30.7

In a normal economic environment, cash is steadily being introduced into the economy by the South African Reserve Bank. Given the facts of financial crises across the Globe, there seems to more and more concerns that the Fractural Banking System will fail, causing Governments to bail out more and more bankers at the expense of the public, despite the Respondent and alike profiteering in billions.

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30.8

If creditors are afraid that the bank is running out of cash or is insolvent, they have an incentive to redeem their deposits as soon as possible before other depositors access the remaining cash reserves before they do, triggering a cascading crisis that can result in a full-scale bank run. The aforementioned scenario has had its reality when the 20Twenty Bank was placed in liquidation; its bailouts were stupefied, leaving the public to fend for themselves, thus the victim.

30.9

Currently, policy papers and the state of Government spell inadequate funds to maintain roads, municipal services and basic education, the Government therefore does not sit in any position to cause a financial bailout should any one of the events, supra, takes place.

IN CONJUNCTION TO THE ABOVE (IN THE ALTERNATIVE):

ARTIFICIAL MONEY CREATION:

31.

Money creation, as pleaded by the Applicant in proceeding before this application has been rejected and booted as an argument held by cults, ignorant and outburst of utter nonsense. It would seem that history seems to be an untold story when these averments are made; as such possibilities seem surreal in an open and democratic society, like South Africa,
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therefore some time will be spent on explaining how money creation happens at banks and that of the Respondent.

31.1

The relending model begins when an initial R100 deposit of the South African Reserve Bank money is made into Bank A. Bank A takes 20 percent of it, or R20, and sets it aside as reserves, and then loans out the remaining 80 percent, or R80.

31.2

At this point, the money supply actually totals R180, not R100, because the bank has loaned out R80 of the South African Reserve Bank money, kept R20 of South African Reserve Bank money in reserve (not part of the money supply), and substituted a newly created R100 IOU (I owe you) claim for the depositor that acts equivalently to and can be implicitly redeemed for South African Reserve Bank money (the depositor can transfer it to another account, write a check on it, demand his cash back, etc.). These claims by depositors on banks are termed demand deposits or commercial bank money and are simply recorded in a bank's accounts as a liability (specifically, an IOU to the depositor). From a depositor's perspective, commercial bank money is equivalent to South African Reserve Bank money it is impossible to tell the two forms of money apart unless a bank run occurs (at which time everyone wants South African Reserve Bank money).

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31.3

At this point in the relending model, Bank A now only has R20 of South African Reserve Bank money on its books. The loan recipient is holding R80 in South African Reserve Bank money, but he soon spends the R80. The receiver of that R80 then deposits it into Bank B.

31.4

Bank B is now in the same situation as Bank A started with, except it has a deposit of R80 of South African Reserve Bank money instead of R100. Similar to Bank A, Bank B sets aside 20 percent of that R80, or R16, as reserves and lends out the remaining R64, increasing money supply by R64. As the process continues, more commercial bank money is created. 31.4.1 To illustrate the above a chart representing the transactions above follows: (as per loans between banks) Bank A B C D E F G H Amount Deposited 100 80 64 51.20 40.96 32.77 26.21 20.97
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Lend Out 80 64 51.20 40.96 32.77 26.21 20.97 16.78

Reserves 20 16 12.80 10.24 8.19 6.55 5.24 4.19

I J K Total

16.78 13.42 10.74 457.05

13.42 10.74

3.36 2.68

357.05

100 89.26

Total Reserves

31.5

Although no new money was physically created in addition to the initial R100 deposit, new commercial bank money is created through loans. The two boxes marked in italics show the location of the original R100 deposit throughout the entire process. The total reserves plus the last deposit (or last loan, whichever is last) will always equal the original amount, which in this case is R100. As this process continues, more commercial bank money is created. The amounts in each step decrease towards a limit. If a graph is made showing the accumulation of deposits, one can see that the graph is curved and approaches a limit. This limit is the maximum amount of money that can be created with a given reserve rate. When the reserve rate is 20%, as in the example above, the maximum amount of total deposits that can be created is R500 and the maximum increase in the money supply is R400.

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31.6

Considering the magnitude and scale money is created, one can simply not ignore that the banks such as the Respondent, are directly the cause of increase and decrease of loan rates. Fractional reserve banking allows the money supply to expand or contract. Generally the expansion or contraction of the money supply is dictated by the balance between the rate of new loans being created and the rate of existing loans being repaid or defaulted on. The balance between these two rates can be influenced to some degree by actions of the South African Reserve Bank.

32.

Returning to the contention the Applicant has shown from inception of these cases, one cannot simply ignore the facts above and expect to be profiteered on and when called-upon to make good an agreement which was designed to circumvent liability, disable defences, condone activities that begs justification why a system of such gross infringement and prejudice can exist in an open democratic society.

33.

The Applicant persist, its not wanting any privilege or discount in these proceedings other than justification why the Respondent is allowed to charge exuberant fees and interest on what in fact does not exist in tangibility format and why the Applicant must give way to its property, a guarantee in terms of the Constitution, which should stand above the might of the Respondent profiteering.

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34.

The actions of the Respondent described supra amount to contravening of Section 1 read with Section 78 of the Bank Act, which prescribes 1002 undesirable practice.

35.

Forfeitures amounting to arbitrary deprivations of property should not occur where the Respondent has more than doubled on its profits as would directly infringe upon the rights to property in terms of the Constitution.

THE INFERENCE ARGUMENTS

FEDATORY:

36. The Respondent owes the Applicant a duty to be treated honestly, to be informed of all material matter before and during the existence of the contract and even thereafter and not to profit additionally from the Applicants transaction. When one person stands in relation to another in a position of confidence involving a duty to protect the interests of that other person, he or she is not allowed to make a secret profit at the other's expense, or to place himself or herself in such a position that his or her interests conflict with his or her duty. Such a claim may arise because of a breach of contract or in delict as the case was in Daewoo Heavy Industries (SA) (Pty) Ltd v Banks [2004] 2 All SA 530 (C), 2004

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865 (4) SA 458 (C), Da Silva v CH Chemicals (Pty) Ltd [2009] 1 All SA 216 (SCA), 2008 (6) SA 866 620 (SCA).

37. To establish a breach of a fiduciary duty, the Applicant must allege facts from which the existence of such a duty can be deduced. For instance, the Applicant can rely on the relationship between principal and agent, of a guardian to a ward, director to a company or an attorney to a client or in this instance, the Respondent to the Applicant.

38.

It is not necessary to define the fiduciary duty and to succeed, one needs to make the necessary allegations concerning the particular duties imposed by the duty, in other words, the scope and ambit of the duties imposed on the Respondent in this case, in which the duties are implied (duties that derive ex lege) and arise in the context of the contract that defines the relationship between the parties.

39.

Furthermore, the case of Slip Knot Investments 777 (Pty) Limited v Project Law Prop (Pty) Limited and Others (36018/2009) [2011] ZAGPJHC 21 (1 April 2011) has particular reference to illustrate the Courts approach to over-profiting. At paragraph 11 on page 6 the Learned Judge sites Innes J finding in Reuter v Yates, as follows: It comes to this - in deciding whether the defence of usury has been sustained, and whether the lender has taken such an undue advantage of the borrower, has so practised extortion and oppression, that his conduct, being akin to fraud, disentitles him to relief, the Court will
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examine all the circumstances of the case. It will not only look at the scale of interest which has been stipulated for, but will have regard to the ordinary rate prevalent in similar transactions, to the security offered and the risk run, to the length of time for which the loan was given, the amount lent, and the relative positions of the parties. Further, at endnote 15 of page 9 of the Learned Judge, remarks Since time immemorial, our common law has set its face against exploitation in the levying of interest. A most illuminating discussion on this aspect can be found in a historical survey by Grov, Die

gemeenregtelike beheer van woeker in die Suis-Afrikaanse Reg, De Jure, 1989 (22), 233 and Die gemeenregtelike beheer van woeker in die Suid-Afrikaanse Reg (vervolg), De Jure, 1990 (23),118.

40.

A fiduciary relationship prevents an agent, in this instance the Respondent, from entering into any transaction that would cause the Applicants interests to clash with the Respondents duty. For instance, an agent employed to buy cannot sell his or her own property; an agent employed to sell cannot buy his or her own property. In addition the agent cannot make any profit from his or her agency other than the agreed remuneration. As the case was in Robinson v Randfontein Estates Gold Mining Co Ltd 1921 883 AD 168 180, Bellairs v Hodnetl1978 (1) SA 1109 (A) 1130F, Low v Shedden [2001] 2 All SA 884 171 (C) and Ganes v Telecorn Narnibia Ltd [2004] 2 All SA 609 (SCA), 2004 (3) SA 615 885 (SCA).

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41.

Within these premises the Respondent was duty bound in terms of the fiduciary relationship that came into operation the moment the Applicant applied for a loan from the Respondent, further to be confirmed by entering into a contract with the Respondent and its on-going relationship is confirmed by the Applicant making payment to the Respondent.

42.

If follows that the Respondent has seriously breached the fiduciary duty by misleading the Applicant in the grounds so set-out supra and therefore its the right of the Applicant to bring civil action against the Respondent, which it intends doing.

CONCLUSION:

43.

The structures employed by the Respondent are at very least distrustful, designed for failure as it has no tangibility or substance which can justify the exorbitant interest charged against such undulations;

44.

The Respondent acted with predefined, predetermined set of actions prior to concluding the agreement with the Applicant because laws relating to the conduct of their industry allows for such conduct of profiteering to take place;

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45.

There exist no true competition among banks where one can take your business, as each one of these so-called competitors are just another extension of banks whom hold the exclusive mandate to exchange nothing for liquid demands;

46.

The Applicant had not mandated the Respondent to act, as it did in these premises, where its inception was that liquid money is borrowed against liquid repayments. There could never exist consensus meeting of the minds between the parties given the facts aforesaid, because what the Applicant had envision and what the Respondent versioned are two very distinct and far apart things that one cannot connect the two minds to conclude consensus;

47.

Policies and guidances designed to protect the system from manipulation has been infringed upon, absolute disregarded to rights and obligation in terms of law, rules and public policy has been replaced by profiteering regardless.

48.

The Respondent cannot allot that it had the capacity to act, as it had no such means; The Respondent had to use external manipulation processes, elaborated schemes and betray trust to enable it to gain the capacity to act;

49.

It is doubtful that the Respondent had acquired authority to act; that is that the Respondent had acquired the rights and obligations prior to the loan agreement being brought into existence, as the majority of the Respondents rights and obligations were only concluded
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once security, surety and creditworthiness was given, sold-off, load against or manipulated from nothingness, then pretended to give physical value.

50.

The Applicant contests that it has prospects of success in this appeal, if not in paragraphs 1 to 12 supra, paragraphs 13 to 32 supra.

51.

Furthermore, the Applicant interjects that the processes followed by the Respondent are in violation of the Constitution as far as the Legislation, in particular The Bank Act, The South African Reserve Bank Act and Policies concerning financial services rendered by the Respondent, in so far the Bill of Rights, Section 25 are concerned.

__________________________ DEPONENT

I hereby certify that the deponent declares that the deponent knows and understands the contents of this affidavit and that it is to the best of the deponent's knowledge both true and correct. This affidavit was signed and sworn to before me at Johannesburg on this 20th day of April 2006 and that the Regulations contained in Government Notice R1258 of 21 July 1972, as amended have been complied with.

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__________________________ COMMISSIONER OF OATHS Name & Rank Address Telephone No. : : :

DATED AT PRETORIA ON THIS THE . DAY OF APRIL 2012.

JJJ Bosman Applicant Suite 1 PostNet Esselen Street Shop 29A, The Village 47 Esselen Street, Sunnyside Pretoria E-mail: aloegel@icon.co.za

TO:

THE REGISTRAR OF THE ABOVE HONOURABLE COURT PRETORIA FINDLAY & NIEMEYER INC Attorneys for Respondent 1027schoeman street Hatfield Pretoria Docex 14, Pretoria Tel.: 012 342 9164 Fax.: 012 342 9165 Ref.: Mr M Coetzee/mm/f3011

AND TO:

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Received a copy hereof on this the _____ day of APRIL 2012

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