Arysteq Financial Services (Pty) Ltd v Quinto Ockhuizen (HC-MD-CIV-ACT-CON- 478 of 2019) [2022] NAHCMD 16 (21 January 2022)

Arysteq Financial Services (Pty) Ltd v Quinto Ockhuizen (HC-MD-CIV-ACT-CON- 478 of 2019) [2022] NAHCMD 16 (21 January 2022)

The Banking Institutions Act does not expressly render agreements by unauthorised persons void; the agreement is valid. The plaintiff proved on a balance of probabilities that both parties intended the agreement to include the monthly interest clause, omitted due to a bona fide mutual error, entitling plaintiff to rectification.

Citation
[2022] NAHCMD 16
Parties
Plaintiff: Arysteq Financial Services (Pty) Ltd; Defendant: Quinto Ockhuizen
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
21 January 2022
Case Number
HC-MD-CIV-ACT-CON- 478 of 2019
Procedural Posture
Civil Action (contract) / Judgment After Trial
Outcome
plaintiff's claim for rectification granted; defendant to pay costs
Legal Topics
Rectification of Contract, Illegality and Enforceability of Contracts, Interpretation of Statutes, Banking Business Definition
Source Language
English
Contract Law Banking Regulation Rectification of Contract Illegality and Enforceability of Contracts Interpretation of Statutes Banking Business Definition

Case Brief

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Parties

Arysteq Financial Services (Pty) Ltd

Plaintiff

Quinto Ockhuizen

Defendant

Procedural Posture

Civil Action (contract) / Judgment After Trial

Legal Issues

  1. 1 Whether the loan agreement is illegal and void under the Banking Institutions Act, 2 of 1998 for lack of authorisation to conduct banking business
  2. 2 Whether the plaintiff is entitled to rectification of the written agreement to include the omitted interest clause

Ratio Decidendi

The Banking Institutions Act does not expressly render agreements by unauthorised persons void; the agreement is valid. The plaintiff proved on a balance of probabilities that both parties intended the agreement to include the monthly interest clause, omitted due to a bona fide mutual error, entitling plaintiff to rectification.

Court Disposition

plaintiff's claim for rectification granted; defendant to pay costs

Orders

  • The written agreement dated 19 June 2017 is rectified by insertion of clause 5.1.2 regarding monthly interest payments.
  • Defendant to pay plaintiff's costs of suit.