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High Court Take Standard Bank & ABSA to Task

Due to changes in the law, it is now possible for a court to set a reserve price for a property which they give permission for a bank to sell on auction. Though these changes have happened different courts are doing different things and some clarity is being sought.

Banks are nervous that this could happen all the time, in every case and have asked the Johannesburg High Court to provide clarity (the Judge on the case has passed it up to a Full Bench of several judges to decide).

Consumer organisations would like to see the setting of a reserve price for all such judgments to prevent the situation where credit providers sell a property for a pittance and then leave consumers with huge debts they still need to pay off anyway.

‘the Judges gave the banks representatives a hard time complaining that the banks seldom bring all the needed information to court so that they can make a decent ruling’

At the hearing about the matter, the Judges gave the banks representatives a hard time complaining that the banks seldom bring all the needed information to court so that they can make a decent ruling. This wastes the courts time and resources in an already busy schedule.

It is common for banks to not provide the original signed documentation relating to the bond agreement (maybe because it was lost in a phantom fire or some such reason) and rather simply supply an affidavit and some supplementary documents which they say are “similar‘ to those the consumer signed. This results in many matters being postponed unnecessarily.

Securitisation

Hidden behind the arguments was credit providers desire to have an order granted which will allow them to claim insurance on the bonds in question. The court arguments, however, did not directly touch on the topic of securitisation (which is an extremely sensitive topic internationally). It seems that both sides have decided to steer clear of the topic entirely in this case.

 

The ruling about the 4 properties involved in this case will have ramifications beyond just these matters and will be the centre of a lot of interest in the weeks and months ahead. Judgement has been reserved and will be published later. This case has the potential to go all the way to the Constitutional Court and so it is likely the Judges will take their time with the ruling.