My argument seems flawed.

[A***@gmail.com]

This is pure law-&-logic as established over millenia, and independant
of dog-pooh-ordinances in YOUR jurisdiction. But requires thinking beyond
the training of an article clerk.

Here's some legally irrelevant context, for the many law people who
can't think abstractly and need a familiar/plausible 'human' story.
<google >

Following a familiar argument that: if the step/s performed are defective,
per the statutory requirements of a goverment depart, before it sues;
the results of the default judgment would be void. And the procedure
would need to be repeated -- properly.

Here's the [good old colonial days authored] ordinance:-
| 49(2) If any charges due in respect of any premises for sanitary services,
| or if basic
| charges due for water made in terms of section 81 (I), or if other charges
| due in respect of any
| premises for water where any water-closet system on such premises has
| been installed, or if
| basic charges due for electricity made in terms of section 83 (1), shall
| remain unpaid for a
| period of six weeks after the date on which written notice shall have been
| given by the council
| to the owner or occupier of his indebtedness, the council may proceed
| jointly and severally
| against the owner and occupier for the time being of such premises for the
| amount of such
| charges or any part thereof, <owner can recover from occupier bla bla>

I read nothing in the ordinance which requires the council to "write"
that they are allowing 6 weeks. They merely have to DO the waiting.
Unless a principle applies where the defendant must have the applicant's
steps fully revealed. Which was the basis of my argument that the
summons must correspond with the preceding 'demand letter'/notice.
I.e. the 'goal' can't be changed, during the various stages of the procedure.

Apparently some other statutes require the notice giver to not only
allow the notice period, but also to write that he is allowing the
statutory 'notice period'. I fear that analogising to Ord 17/49/2 may
be invalid.

Did the council comply, by the fact that additional delay, caused the
"procedings to start" more than 6 weeks after the statutary notice?
If not, what is the formal reasoning that the council failed to comply?

In the particular case a standard-form was sent, and the dates filled
in were less than 6 weeks. Apparently, it's unrealistic to expect the
monkeys to be competent to calculate 6-weeks, if they can't do
correct billing?

==Thanks for any input.

[K Wills]

On Wed, 11 Jul 2012 17:10:23 +0000 (UTC), ***@gmail.com wrote:


I am not a lawyer. If anyone who is contradicts anything I write,
go with their opinion over mine.

Post by A***@gmail.com
This is pure law-&-logic as established over millenia, and independant
of dog-pooh-ordinances in YOUR jurisdiction. But requires thinking beyond
the training of an article clerk.
Here's some legally irrelevant context, for the many law people who
can't think abstractly and need a familiar/plausible 'human' story.
<google >

Insult your audience. That's always a good way to start.

Post by A***@gmail.com
Following a familiar argument that: if the step/s performed are defective,
per the statutory requirements of a goverment depart, before it sues;
the results of the default judgment would be void. And the procedure
would need to be repeated -- properly.

This will likely depend on if the defective steps result in a
reversible error.

Post by A***@gmail.com
Here's the [good old colonial days authored] ordinance:-
| 49(2) If any charges due in respect of any premises for sanitary services,
| or if basic
| charges due for water made in terms of section 81 (I), or if other charges
| due in respect of any
| premises for water where any water-closet system on such premises has
| been installed, or if
| basic charges due for electricity made in terms of section 83 (1), shall
| remain unpaid for a
| period of six weeks after the date on which written notice shall have been
| given by the council
| to the owner or occupier of his indebtedness, the council may proceed
| jointly and severally
| against the owner and occupier for the time being of such premises for the
| amount of such
| charges or any part thereof, <owner can recover from occupier bla bla>
I read nothing in the ordinance which requires the council to "write"
that they are allowing 6 weeks. They merely have to DO the waiting.

As I read it, they have to send written notice. Then they must
wait six weeks before they can take action on the notice.
It's not stated, but I presume the six weeks wait is to allow the
person responsible, owner and occupier, time to pay what is owed.

Post by A***@gmail.com
Unless a principle applies where the defendant must have the applicant's
steps fully revealed. Which was the basis of my argument that the
summons must correspond with the preceding 'demand letter'/notice.

According to what you quote above, six weeks must proceed any
summons.

Post by A***@gmail.com
I.e. the 'goal' can't be changed, during the various stages of the procedure.
Apparently some other statutes require the notice giver to not only
allow the notice period, but also to write that he is allowing the
statutory 'notice period'. I fear that analogising to Ord 17/49/2 may
be invalid.

Without seeing the other statute, there's no way to know. I
presume some mention of a deadline for paying is included in the
notice, since this would be the norm.

Post by A***@gmail.com
Did the council comply, by the fact that additional delay, caused the
"procedings to start" more than 6 weeks after the statutary notice?
If not, what is the formal reasoning that the council failed to comply?

If the council waited more than six weeks, it's probably not
going to be seen as a reversible error. I would expect it would be
viewed as the council granting extra time that it was not require to
grant. You'll note that the statute you quote doesn't forbid the
council from granting additional time.

Post by A***@gmail.com
In the particular case a standard-form was sent, and the dates filled
in were less than 6 weeks. Apparently, it's unrealistic to expect the
monkeys to be competent to calculate 6-weeks, if they can't do
correct billing?

The statute doesn't mention filings. It mentions that written
notice must be given that the owner and occupier are indebted to the
council. Once notice is given, the council must wait six weeks before
any further action.
What you quote doesn't actually state, but presumably if the
owner and occupier pay whatever the amount it, any further action will
cease.

Post by A***@gmail.com
==Thanks for any input.

[j***@zajuris.org]

This is pure law-&-logic ....
.... if the step/s performed are defective,
per the statutory requirements of a goverment depart, before it sues;
the results of the default judgment would be void. And the procedure
would need to be repeated -- properly.

For the purposes of a court deciding whether to order the
rescission of a default judgment this is wrong as a matter of pure law
and logic. See eg. the Supreme Court of Appeal of South Africa's
decision in Leo Mfg. CC v. Robor Industrial, etc., Case No. 2004 which
holds that EVEN IF THE PROCEEDINGS IN WHICH THE JUDGMENT WAS OBTAINED
WERE A _NULLITY_ AND THE JUDGMENT THEREFORE OTHERWISE VOID the
Magistrates’ Court Act as consistently judicially construed and
applied precludes a court in So. Africa from rescinding a default
judgment in the absence of the applicant for rescission making a
showing for relief that clearly demonstrates the factual and legal
grounds of defence to the claim even if voidly sued upon. And whereas
one of the potential ways that an applicant for a judgment's recission
fails to do this even in an otherwise void lawsuit is when he makes
statements submitted by one of the parties to the court that show that
rescinding the judgment would be moot as a practical matter, you do
not say that the defendant you refer to did not make any such
admissions. See also F & J Car Sales v Damane cited and discussed by
the court in Leo Mfg. case.

[A***@gmail.com]

Post by j***@zajuris.org

This is pure law-&-logic ....
.... if the step/s performed are defective,
per the statutory requirements of a goverment depart, before it sues;
the results of the default judgment would be void. And the procedure
would need to be repeated -- properly.

For the purposes of a court deciding whether to order the
rescission of a default judgment this is wrong as a matter of pure law
and logic.
! Here's my logic [inferences from facts & principles to conclusions];
please share yours.
See eg. the Supreme Court of Appeal of South Africa's
decision in Leo Mfg. CC v. Robor Industrial, etc., Case No. 2004 which
holds that EVEN IF THE PROCEEDINGS IN WHICH THE JUDGMENT WAS OBTAINED
WERE A _NULLITY_ AND THE JUDGMENT THEREFORE OTHERWISE VOID the
Magistrates' Court Act as consistently judicially construed and
applied precludes a court in So. Africa from rescinding a default
judgment in the absence of the applicant for rescission making a
showing for relief that clearly demonstrates the factual and legal
grounds of defence to the claim even if voidly sued upon.
And whereas
one of the potential ways that an applicant for a judgment's recission
fails to do this even in an otherwise void lawsuit is when he makes
statements submitted by one of the parties to the court that show that
rescinding the judgment would be moot as a practical matter, you do
not say that the defendant you refer to did not make any such
admissions.

Yes that's a very important/valid point.
You mean that if the rescission was allowed, and the
result would be the SAME as the default judgment,
then the DJ should be refused. But if the DJ is qualified to decide,
then the DJ HAS effectively been set-aside and replaced by a new
judgement?

Post by j***@zajuris.org
See also F & J Car Sales v Damane cited and discussed by
the court in Leo Mfg. case.

=========
You haven't answered MY question -- which you just snipped.
You've just matched up some phrases a-la-google.
My question is:
did the council comply with the ordinance by being delayed
in commencing their action, despite not specifying the mandatory
6 weeks, in their documents. The PURPOSE of the requirement is
to cause the recipient of the notice to 'act'. But he may act
'wrongly' on 'false' information. Ie. the legislators intended to
give the debtor 6-weeks-NOTICE to plan and act.
The answer to my question is becoming obvious? Thanks.

Regarding the question which was NOT asked, and which you
answered: my rant on that issue, dating from 1 Dec 2010
is pasted below. Your ref. to 'Leo Mfg. CC v. Robor Industrial'
I already had on file, but I can't get 'F & J Car Sales v Damane'.
But the essence of 'F & J' has been extracted to 'Leo Mfg.'

Since I'm RE-examining this dud legislation, my 'excuse' for
its defect is:
* from basic principles of due process, a summons with a faulty
address/name is void.
* in a non-functioning society, where the majority are illiterate,
and those in power want to imitate the first world, for EXPEDIENCY
reasons the legislators have patched the rules to avoid debtors
who could otherwise escape/delay via name and address
ambiguities.
* instead of appropriately re-defining ambigiously addressed
summons as NOT void, the clowns have contaminated the original
purpose of the definition of 'void'. See my rant below.

The purpose of the band-aid is: consider ambigiously addressed
summons as being NOT void, for expedienceny reasons.
I confidently predict that no such band-aid exists in 1st-world
jurisdictions. In the 60's I couldn't get 'accomodation' in
W.Germany without an 'ausweis' residence authorisation.
Sounds like the Soviet Union?
And when my German friend died here recently, the German
embassy was able to search the computerised list of residents of
Germany, whereas the SA. officials had no record of his death, 6
months after the government mortuary had removed his body.
So in functioning societies ambigious name/address is serious.
But in S.Africa it should not be classified with REAL voidness grounds.

Re. inappropriate literal [google phrase matching]
interpretation, I appreciate the law-professor:--
http://constitutionallyspeaking.co.za/a-sense-of-justice
-and-common-sense-needed/
Sometimes judges in our High Courts seem overly formalistic and
proceed to declare invalid legal provisions when this was not
constitutionally required. Instead of using common sense to
interpret the impugned legal provision in a manner that complied
with the Constitution, the Court invalidates a legislative
provision in a earnest but clumsy attempt to apply the Bill of
Rights. It then falls on the Constitutional Court to bring some
common sense to bear on the matter by declining to confirm an order
of invalidity made by the High Court. ....
Here's my Dec 2010 rant:--

Subject: Was the implied rule complied with?

Let's try to analyse the thought process, that leads to this garbage,

Post by j***@zajuris.org
In the F & J
case, which dealt specifically with the present Rule 49(3), the
Full Court came to exactly the same conclusion.'
[17] It is always imperative that the grounds of the Defendant's
defence to the claim be set out to enable the Court to determine
whether or not the Defendant has a valid and bona fide defence to
the Plaintiffs claim. This is necessary even where the judgment is
believed to be void ab origine. Zulman JA, in the Leo case above,
'[6] Put differently, the provisions of Rule 49(3) are peremptory
when a court considers an application to rescind a default
judgment. More particularly, the wording of the sub-rule makes it
clear that the grounds of the defendants defence to the claim must
be set out. Where the objection is that the judgment was void ab
origine, compliance with Rule 49(3) nevertheless involves further
proof of the existence of a valid and bona fide defence to the
claim.
[7] . . . In their comment upon Rule 49(8), the learned authors
Erasmus and Van Loggerenberg make the point that an application
seeking rescission of a default judgment on the grounds that the
judgment in question is void ab origine must (in terms of Rule
49(3)) set out a defence 'with sufficient particularity' so as to
enable the court to decide whether or not there is a valid and bona
fide defence.'

This lay-man imagines the following scenario:
While you were out of the country, McDonalds caterers served a summons
and got a default judgment against you "for failing to pay for the
catering for your daughters wedding".

You don't know McDonalds caterers and you have never had a daughter.

Q: How can you prove a negative?
Q: What is your defense, per the rule cited above?
Q: Is the cited authority sound?

I believe that I know what motivates the, IMO absurd, wording above, but I
don't want to bias any replies; instead I use the valid essence of the
wrongly worded principle to ask a related question. Here are the facts:--

* You have served a letter on a supplier, that if he doesn't stop wrongly billing
you $11 per month instead of the correct $10 [I use a kindergarten model for
inumerate law people] you will withhold payment to provoke a Court opportunity.
* After 2 months he sends a demand letter for [2 * $11 =] $22.
* After 3 months you send a letter: "Here's my detailed calculations, which show
that I *NOW* owe you $30, please accept this calculation, or show any error/s,
so that I may settle."
* He contrives a default judgment.
* At the rescission application, the Court accepts that since your letter admits
owing $30, which is more than the $22 claim, you have no defence.

It's disturbing and hillarious for me that 95% of law-people can't see, except
after long explanations and kindergarten analogies, that the Court is wrong;
and that accountants, engineers and carpenters don't believe me that
law-people don't 'get it'!

So be it, but what I'm asking an opinion on is this:
Since the *PURPOSE* of the mandatory "set out a defence 'with sufficient
particularity'"
is: "so as to enable the court to decide whether or not there is a valid and
bona fide defence.'";
and since the creditor and Court USED the letter/calculation for their argument,
they thus accepted and indeed alledged that the letter/calculation was valid,
and therefore had "sufficient particularity so as to enable the court to decide
whether or not there is a valid and bona fide defence" -- except for their law
training of just matching phrases, without understanding the underlying meaning.

And the answering affidavit's claim of the $30 exceeding $22 implying admission,
was rebutted by pointing out that the balance owing was "moving"...

Q. for those who CAN understand that the logic accepted by the Court was wrong,
was the *PURPOSE* of the rule complied with; i.e. sufficient info
given/available "so as to enable the court to decide whether or not there
is a valid and bona fide defence"?

== TIA.