Courts Demand Original Documents
FNB Fail To Produce Originals
When FNB asked the South Gauteng High Court to assist it in recovering R74 000 from Adrian Hart (of KZN) for a vehicle, they met with disappointment. This was because they failed to produce the original documentation proving that the agreement existed and showing the terms and conditions of the agreement.
2 months ago FNB took Mr. Hart to court over an outstanding amount of R75 000 for vehicle finance which was taken before the National Credit Act came into effect. Mr. Hart defended the matter himself. His case revolved around questioning the statements made in the affidavit of Mr Ebrahim (a legal manager at FNB).
Do You, Really? Really?
Mr. Hart questioned the validity of statements made to the effect that Mr. Ebrahim said he had personal knowledge of the matter and had considered all the information about the matter. Mr. Hart pointed out that the bank cannot locate the original agreement and applications for credit. They could not even find electronic versions of the documents and thus he questioned how the bank’s representative could have all the fact and info. He further questioned how the bank’s representative, who was employed more recently, has knowledge of matters from back in 2006 if there are no papers about it.
Juge Robertson was not convinced of the bank’s case and also questioned how the Legal Manager could swear he knew the facts without any paperwork or electronic copies. This was bolstered by the lack of information about the supposed loan (which may well have already prescribed anyway).
‘Various banks have been having problems producing documents to back up their claims’
Rule (32)
It seems the courts are becoming more and more demanding when it comes to Rule (32). This is the part of the Magistrates Court Act which calls for supporting documentation to matters. Various banks have been having problems producing documents to back up their claims. This has been particularly true of ABSA who claim that many paper versions of their agreements with consumers burnt up in a fire. They have also struggled to produce electronic copies of these papers.
Don’t Have Papers? Fake Them
Not too long ago, 28 big banking organisatiosn in America got into trouble for hiring a Mexican firm to fake ‘original’ documents and then add consumers signatures to them. These were then used to try collect on these debts. These fraudulent documents were eventually exposed and big fines were later imposed but it shows the lengths some organisations will go to to try and cover their mistakes.
Many SA banks have found that the debt review process is a lot less confrontational and there is little or no need for original documentation and fighting about if the debt exists. Yet another reason why the banks love debt review.