Celling Constitutional Court Visitors Mis-information

Constitutional Court CCT 74/03 Jaftha v Schoeman, Van Rooyen v Stoltz

Intellectual Doors of our Courts are closed – Judgements defective – State coffers plundered

 

 

NOTE: (Oct 2015) The FAILURE by SA's Constitutional Court to properly address this fundamental Socio-Economy Engineering Factor is causal of the ongoing Economic Chaos that we presently see around the World

 

The above referenced matter was heard today (May 11, 2004) in the new Constitutional Court situated on the site of the old Fort Prison.

The Constitutionality of sections of Magistrates Court Act 32 of 1944 which deal with the sale in execution of property in order to satisfy a debt was challenged.

The underlying issues being two persons (Jaftha & Van Rooyen) who both had their R15000 government subsidised houses sold for R5000 & R1000 respectively for minor debts of a loan of R250 (+ interest & costs) and groceries of R198 respectively. Various Cape High Court applications resulted plus the matter wound up as a Constitutional issue before the CC. The Minister of Justice being the only party to oppose.

The day’s arguments revolved around various aspects of law in attempting to get a sense of “balance” between the size of debt, reduction of rights i.t.o. Constitutional Sections 10, 25 & 26 (Dignity, Land, Homes), impact upon the loan industry.

Most issues concerned points canvassed in lower courts but certain were raised in the CC for the first time.

It was clear that the fundamental issue of debt itself was overlooked whilst emotive issues were endlessly bounced around.

It was stated that the Mortgage Bond industry is focused more on middle income groups whilst government subsidised housing on low income earners. The problem of housing being more profound for nil income owners.

The question of “what is a trivial debt?” was raised in various forms

The Chief Justice asked for consideration to be given to “insolvent persons”

A balance question was raised on these aspects for the “Haves.

The essence of the issue debated is how to bring balance to the remedies for recovering a legitimate outstanding debt versus protecting the Rights to dignity, land, homes. As stated; focus was mainly the emotive issue of the poor person.

(The more important & holistic issue of the non-staying of execution of a Mag Court order pending appeal was not raised in the founding papers. ???)

The CC is thus influenced by their trying to balance these two distant positions – but the position, the nature, of debt per se was not addressed at all. It was clear then that unless these important issues were addressed that a non-optimal outcome could only result from the CC in this matter.

Therefore the writer politely stood up and requested to address the court on this important point that had been overlooked. Chief Justice Chaskalson denied the request and referred discussion of the point to Advocate G Marcus (Applicants’ counsel). During the lunch break, after Marcus A had posed for a photo shoot and had ordered toasted sarmies, he and a Legal Resources Centre person declined to listen seriously to the issues.

Thus far:- further proof that our courts are closed to people; that they are for an exclusive club of Legal Personae, that these Legal Personae are closed to outside argument.

The nett result of this is that although law is extensively debated; little, if any, knowledge of “systems” is brought into consideration. Consequently “justice systems” are non-functioning, consequently “justice” cannot be dispensed (Oath of Office for a judge – Schedule 2 (6) of Constitution)

Nevertheless the CC is to make a judgement on this matter which requires a “balancing” of two positions between “Haves” versus “Have-Nots” so as to determine, as a minimum, an optimal threshold below which persons are protected from having their homes executed against, if at all. But they are attempting to do so without fully understanding the issues – because people are denied Intellectual Access to our Courts..

O’Regan J raised the issue of the impact, as a deterrent to lending to the needy, upon the Mortgage industry at least twice i.e. the social versus business balance.

Simply stated: there is a need for proportionality, balancing, of positions:– take a scale ranging from “Haves” to “Have-Nots” on which a marker needs to be positioned which represents that minimum “balance” position. The “Have-Nots” position is easily determined – it is almost equal to Zero. The “Haves” position is considerably more difficult, but nonetheless needs to be gauged. Without fixing this “Haves” position correctly it cannot be determined that the “optimal” balance-marker is correctly positioned.

None of the “legals” could address this raised issue – it was at this point that the writer requested, and was refused, permission to bring perspective on this issue into the debate.

The previous articles, attached, (Interest Rates & Loans 1 to 4) set out the issues - To summarise:

Interest Rates, levied on loans, and utilised as an “economy control device”, have derived over millennia, Financial Institutions in conjunction with governments have developed the laws such that the interest rate, used as an “economy control” device, sucks money from individuals (majority) into the banks coffers (minuscule minority). There is no justification for this destructively unfair system.

In the general case:

Residual Debt = (Initial Debt) minus (Sum of monthly repayments) plus (Sum of monthly interest amounts).

Given: a person calculates his affordability of a loan at a certain prevailing interest rate –if, then, the interest rate is increased his affordability is reduced and his Residual Debt increases again towards (and can surpass) his Initial Debt. This effect has greater impact upon lower income than higher income earners.

As the articles (attached) “Interest Rates & Loans” explains – there is no sound basis for this economy control device – it has simply developed, unquestioned, progressively over time in the 1^st World environment. It is destructive within the 1^st World; and catastrophically so within 3^rd World. One only need consider the alternative position – that of Government raising funds through ‘fixed interest” bonds to see that this is so – there is nothing to prevent banks lending on such a basis. Doing so would bring to light that interest rates should be “upwardly capped”, but “downwardly mobile” on existing loans. This coupled with the exponential effect of Money Supply on Economic Momentum would, if implemented, have a significant positive impact of uplifting “Have-Nots” on a sustainable basis.

Even within the 1^st World sectors, fresh thought needs to be given to unfair lender biased loan agreements.

The ratio of Haves to Have-Nots, globally, is stated at 0B9 to 5B1 (as of 2000). This is a ratio of 1 to 5.7. In SA the ratio is probably higher – between 1:6 to 1:8, depending on what the threshold is determined as being. The spotlight is on SA to develop solutions to this Dividing Line issue; it is on SA, unfairly, simply because it is the World’s last hope in Africa of seeing development of real racial, cultural, harmony.

But the Social & Government Structures that we have in SA are ignoring the problem because they continue to use obsolete 1^st World systems to implement policy. This Constitutional Court matter is a case in point.

It started off in the Magistrates Court with a judgement for debt – yet the Magistrate knowing the dire circumstances of these people in the area did not stop to think about the impact a debt judgement would have on a poor person – the Magistrate simply processed the debt matter.

Cries of social injustice, with a local attorney taking up the matter on a freebie basis (all credit to him). It then went to the Cape High Court with a “number” of applications being made. The question of unconstitutionality of certain aspects/impacts of the Mag Court Act then found its way to the CC.

In the CC were 10 judges, and around 8 advocates/attorneys combined for both sides or as interested parties. Eighteen expensive legal persons. The limited, one sided, debate can only result in a non-optimal outcome

Costs were requested for two counsel.

Estimate the costs of the legal teams alone; all of which will be paid from State coffers. How many subsidised houses could these legal costs have built?

How is it that our courts are closed; to thus allow blatant plundering of State coffers by legal Personae posing as “defenders” of our Constitution & Bill of Rights?

It does not require much thought & effort for a Magistrate to simply bring the issue directly to the High Court, then to the Constitutional Court, at minimal cost. But our Social Systems obstruct rational thought; consequently “law”, including Rules-of-Court, are placed above the Constitution; thus defeating it.

The Chief Justice's refusal to allow a member of the public to present polite rational argument is sufficient proof of this.

More importantly, had appropriate systems & processes been in place in our courts then Jaftha & Van Rooyen, and all others, would have been capable of taking the matter directly into the justice system themselves – without fear of abuse or harassment. And at minimal cost.

But after 10 years of Constitutional democracy the Judiciary have made no effort to apply S173 (Inherent Power) read with S33 (Just Administrative Action) in developing the court systems & processes to give meaningful effect to a Constitutionally sound Justice System.

Thus:- the minuscule benefit achieved in merely bringing one tiny aspect of a much larger issue to the CC. And not a word from the CC as to why this has happened.

References were made to “International Law”. Our Constitution S233 provides – “When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.”

It is important to recognise that since 1^st World Social Systems are more highly developed that, when applied verbatim, they are invariably catastrophically destructive to 3^rd World environments. Zimbabwe is a case in point where the 1^st World justice system was used to block meaningful negotiated change; thus frustrations & anger increased, with the resultant collapse of the country.

The CC must be extremely mindful when referring to International Law that, similar to placing Rules-of-Court & other laws above the Constitution, allowing the word “reasonable” to whitewash 1^st World International law over the Bill of Rights & other components of the Constitution has the detrimental effect of negating any prospect of Social & Economic Upliftment. Especially considering that no other 1^st World Country has such an advanced, or any, Constitution.

Regardless, the State coffers have been plundered by “legal” manipulations which were wasteful in the extreme. But how is this to be prevented in the future? The only real solution is for the Chief Justice to correct the Rules-of-Court that purposefully defeat the Constitution, and to thus open the Intellectual Doors of our Courts so as to allow open debate on Constitutional & all other issues.

Issues pertaining to Rent flow from Mortgage bonds, and are not significantly different in its components of:- a Return on Capital based upon prevailing interest rates. Unfair interest rate mechanisms result in unfair mortgage bonds, which in turn effect rental charges

Insolvents are essentially debtors who are unable to pay; either because they cannot meet current creditors, or their Liabilities exceed their Assets.

Perhaps the solution (or part of it) to the housing problem is for Government to become pro-active lenders to home owners, directly competing with banks, with “upwardly capped, downwardly mobile” interest rates on existing loans. This would bring pressure to bear onto the banks to focus on providing the correct kinds of services; and not to rely on sucking unwarranted super profits from society, which increases impoverishment, from shifts in the interest rates acting through obsolete economic systems.

A further improvement to afford protections to uninformed persons is to place greater responsibilities onto Lenders. There is far too much irresponsible advertising aimed at “live now, pay later” which draws people into unaffordable, or unsustainable, debt. A fairer balance needs to be struck between “Buyer Beware” (Caveat Emptor) & “Seller Beware” (Caveat Vendor)

The distorted, emotive, focus on two poor people having been assisted in the CC, has deflected attention from the real, underlying, issue, vis:-

• that execution orders out of a Magistrates Court are not stayed pending appeal. This is contrary to the High Court rules, thus Magistrate Courts have effectively greater State powers at their disposal.

• A morally responsible lending industry

• Appropriate economy systems & economy control devices

No doubt some other unfortunate person will be harassed and then another round of plundering by legal persons can start; all of which will line the pockets of the attorneys & advocates, further reducing governments affordability of Social & Economic Upliftment projects.

It is strange that the CC did not question further the reasons behind the failure to address the more holistic issue of the non-staying of a Mag Court execution order pending appeal. The issues to be debated would not have taken up much more time & effort relative to the immense quantities consumed in addressing this singular issue alone.

On exiting, tour guides, unknowingly, were celling Constitutional visitors mis-information that since they can enter & sit in our Constitutional Court that significant change has come about in our Justice System.

The gloss of the tour spiel overlooks the facts that:- Intellectual Doors of our Courts are closed – Judgements defective – State coffers plundered.

Chris Addington Pr.Eng., South Africa, +27 83 962 7098, This email address is being protected from spambots. You need JavaScript enabled to view it.