ABSA get Burned?
Recently in the matter of ABSA Bank Ltd v Hanekom was heard in the Western Cape High Court. In this matter ABSA were trying to have summary judgment issued against Mr. Hanekom however things did not exactly go their way. Judge Dennis Davis delivered judgment with regard to ABSA Bank’s common practice of attaching unsigned agreements to their summons. Surely they have to have the original documents you say. Well ABSA say they do this because the originals were destroyed in a fire. In this matter the learned judge confirmed that, in the event of the original documents being lost or destroyed, the Banks are entitled to rely on what is called secondary evidence to prove their claim. However, in this particular case, Mr Hanekom’s attorney, Quintin Zimmermann of Liddle and Associates, was able to convince the court that the terms and conditions of the unsigned document attached to the summons differed materially from the terms and conditions of the actual agreements concluded between the parties originally. Judge Davis ruled that this was an issue that can only be decided upon at trial and as such, summary judgment was refused.
Why does this matter?
Consumers and their attorneys should closely scrutinise the blank documents that the Banks attach to any summonses they have received and can then dispute those terms and conditions if they materially differ from the credit agreement that the consumer originally signed. As in this case this could help prevent summary judgment being granted in favour of the Banks.