In a home repossession case earlier than the KwaZulu-Natal High Court, Standard Bank was blown out of the water with a damning judgement handed down on Thursday (4 August), when it was discovered to have made false allegations towards a pair who stood to lose their home after falling into arrears.
In unusually stern language for a case reminiscent of this, Judge Jacqueline Henriques stated she was referring the matter to the Legal Practice Council and to the Ombudsman for Banking Services.
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Judge Henriques stated the financial institution failed to disclose key bits of proof, reminiscent of what efforts have been made to discover various technique of settling the debt with out taking the drastic step of promoting the home in execution.
Standard Bank claimed it made eight phone calls and despatched SMSs to the owners prior to launching authorized proceedings, however offered no supporting paperwork to show this.
A supplementary affidavit from the financial institution suggests the one efforts to resolve the matter occurred after summons was served earlier than the court docket on 1 February 2022.
Failing to disclose funds
The financial institution additionally failed to disclose sure funds made by the owners to settle the arrears.
“Given the serious nature of these proceedings and the fact that defendants stand to lose their primary residence, one would expect a deponent to the affidavit to disclose all circumstances and to accurately disclose the circumstances in a founding affidavit,” reads the judgment.
“To say that this was a discrepancy pointed out by the court is factually incorrect and may well amount to an act of perjury. The deponent to the affidavit clearly deposed to an affidavit concerning allegations which were not true.”
The financial institution was discovered to have served summons on a publish field owned by the owners, moderately than in individual, as is required by South African courts.
Where the financial institution is searching for default judgment as a prelude to repossessions of an individual’s main residence, summons should be served in individual.
Lungelo Lethu Human Rights Foundation, which offers defence towards illegal evictions, says it has dozens of instances on file of neighbours and youngsters being served summons by main banks, and in many instances the place the arrears are confirmed to be fictitious.
The solely time the home-owner finds out in regards to the authorized motion is when a brand new proprietor, who usually acquires these properties at public sale for a tune, arrives to evict them.
In this case, Standard Bank was claiming arrears of R93 606, and on this foundation was trying to name up an impressive mortgage of R382 000. It served summons on the couple with a view to executing on the property (promoting it through a sheriff’s public sale).
Read: Banks are nonetheless gathering on money owed which have expired
Judge Henriques additionally berated the legal professionals concerned in the case on behalf of the financial institution for failing to make full disclosure of the information earlier than the court docket, as required in phrases of rule 46A of the court docket guidelines and Section 26 of the Constitution which ensures the best to enough housing.
Also lambasted in the judgment was the financial institution’s home loans authorized supervisor, Joy Ngcobo, who was discovered to have made incorrect statements to the court docket. The choose disagreed together with her declare that these have been discrepancies.
“The attorneys were either remiss or negligent in their obligations not only to the court but to the bank official to ensure that she deposed to an affidavit which was factually correct,” reads the judgment.
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“The conduct of the attorney and bank official is to be deprecated and the only suitable way apart from refusing the application is to ensure that the costs of the application not be recovered from the debtors or levied by the attorney of record,” it provides.
Standard Bank’s utility for default judgment was dismissed, and the case referred to the Legal Practice Council in KwaZulu-Natal in addition to the Ombudsman for Banking Services.
Responding to a Moneyweb request for remark, Standard Bank stated in a short assertion that it has famous the judgment and is reviewing the matter.
