Cape Town - A couple who fell into arrears on their home loan and were about to lose everything are breathing easier after a KwaZulu-Natal High Court judge ruled against Standard Bank, which was found to have made false allegations in its attempt to repossess the house.
Standard Bank had claimed that the couple had arrears of R93 606 and was calling in their outstanding loan of R382 000 with a view to selling the property via a sheriff’s auction.
However, the bank was found to have served summons to a post office box owned by the couple and not to the couple in person as is required by the courts. In this, too, they fell foul of the judge.
In a scathing judgment, Judge Jacqueline Henriques said she would direct that the judgment and application papers be sent to the Legal Practice Council, KwaZulu-Natal, as well as to the Banking Services Ombudsman.
Judge Henriques found Standard Bank guilty of failing to disclose payments made by the couple to settle the arrears and held a bank official and the bank’s lawyer responsible.
She said the bank’s lawyers had failed in their duty not only to the court, but also to the bank official, to ensure that she provided an affidavit that was factually correct.
Rejecting Standard Bank’s application, the judge said: “In keeping with the principle of judicial oversight and the duty of a bank official as well as a plaintiff to make full and frank disclosure in an affidavit and disclose all relevant circumstances to a court in such application, which has dire consequences for defendants, I have no alternative but to refuse the application for default judgment as well as execution.”
The judge said the bank official had made incorrect statements in her sworn affidavit regarding the couple’s arrears, payment history and the assistance offered to the defendants before the action was instituted.
She also said Standard Bank’s attorneys had failed to provide full disclosure of the facts of the case before the court, contrary to rule 46A of the court rules and Section 26 of the Constitution which guarantees the right to adequate housing.
With regard to the payments made by the couple and misstated by the bank official in her affidavit, Judge Henriques said: “She is the official who had regard to the bank records and clearly what she deposed to was not correct.”
She found that the couple’s payment history clearly showed that the last payment effected on the home loan account was on May 19, 2021 in the amount of R10 000 and therefore the official’s allegation that the last payment was made in May 2020 in the amount of R6 202.13 was false.
Standard Bank had claimed it had made several efforts to assist the defendants to regularise their loan repayments by making eight phone calls to them and sending them SMSes, but provided no supporting documents to prove this.
The judge said it was not clear when the eight telephone calls were made and the SMSes were sent and what attempts were made immediately prior to the institution of the bank’s application against the couple, apart from the email exchange.
In her judgment, Henriques said: “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.”