Judge condemns Standard Bank for claim against late-paying landlord

Standard Bank filed a claim regarding an overdue landlord.

Gallo Images/Foto24/Brendan Croft

  • A Durban High Court judge has slammed Standard Bank and its lawyers for a shoddy enforcement against a defaulting landlord.
  • The judge said such requests are often placed on the docket of unopposed motions court and judges must rely on the contents of the affidavits and ensure there is full disclosure.
  • Judge Jacqui Henriques referred the case to the Council for Legal Practice and the Banking Ombudsman.

Standard Bank and its lawyers have been criticized by a Durban High Court judge for taking shortcuts in a claim against a defaulting landlord. The bank requested a default judgment and an order authorizing the sale of the house.

But Judge Jacqui Henriques denied the request, saying it showed signs of “cutting and pasting”, and ordered that a copy of her judgment and all of the application documents be sent to both the Council of legal practice and banking services. Mediator.

The claim was brought by Standard Bank against a couple who posted a bond with the bank on a property in Newlands East.

In August last year, after they defaulted on their payment obligations, the bank sent them the notice required under the National Credit Act, advising them that they had failed to make payment for the payment in full and demanding that they pay all arrears or the bank would take legal action, which it did next, in September.

In the details of the claim, the bank indicated the amount of arrears and noted that the couple first broke the agreement in March 2019, and the bank official detailed attempts to contact them, including in calling them eight times, sending four text messages and six emails.

The request for default judgment was also served on them by depositing it in their mailbox.

Read the full judgment here.

Judge Henriques said the head of the bank, in her affidavit, said that as of November 23, 2021, arrears amounted to just over R93,000, monthly installments were just over R8,000 and the last time they paid was May 7, 2020, then only around R6,200.

The judge said that when the case came before her in February this year, she raised some issues – including that the bank’s claims were not supported by the attached schedules, which showed the couple had in fact paid R10,000 as bail later. in May. There had also been other earlier payments of R10,000.

Judge said she asked for explanation and was told ‘the discrepancy’, ‘a regrettable oversight’, was because payments were made to the bank’s ledger account and not on the bond account.

However, the bank official’s affidavits provided no information as to why these amounts were paid.

“There must have been a prior arrangement to settle the arrears in order to maintain the payments… Why this is not disclosed in the documents is not addressed,” the judge said, noting that the bank official who made the affidavit must have known at the time about these payments because they were reflected in the schedules.

“Given the seriousness of this proceeding and the fact that the defendants may lose their primary residence, one would expect a deponent of the affidavit to disclose all of the circumstances and disclose them accurately. To say that he it was a discrepancy…may well amount to an act of perjury.”

Judge Henriques said the lawyers who drafted the claim were also at fault. They would have had the relevant documents and should have checked them. They were either negligent or negligent, she said.

“This is becoming common practice and more often than not judges meet these requests on the docket of motions court without opposition. The impression created is that these requests are prepared by an amanuensis (scribe) and are copied and pasted to from previous requests. No one checks them properly.”

“These claims are rarely contested by debtors…a president must be able to rely on what is contained in the affidavits.”

She also noted that the request was not served on the couple in person.

The judge said the conduct of the lawyer and the bank official should be judged, and she prohibited the bank from recovering the costs of the application from the couple, or the lawyers from collecting fees in this case.

Standard Bank spokesman Ross Linstrom said: “Standard Bank has taken note of the judgment and is reviewing the matter.”

About William G. Patrick

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