Absa Bank Ltd v Lowting and Others (39029/2011) [2013] ZAGPPHC 265 (19 August 2013)

Absa Bank Ltd v Lowting and Others (39029/2011) [2013] ZAGPPHC 265 (19 August 2013)

The court found that the defendants signed the suretyship agreements under circumstances where the nature and consequences of the documents were not explained to them by the bank's representative. Although the defendants did not expressly plead iustus error, the facts pleaded and evidence led established that they were misled by omission and did not intend to bind themselves as sureties and co-principal debtors. However, the court held that the mistake was induced primarily by the third defendant, who acted as their agent, and not by the plaintiff. Applying the Supreme Court of Appeal's decision in Slip Knot Investments 777 (Pty) Ltd v Du Toit, the court concluded that the defendants are...

Citation
[2013] ZAGPPHC 265
Parties
Plaintiff: Absa Bank Limited; Defendant: Lowting, Lantis Egan Noel; Defendant: Wilson, Dann; Defendant: Jacobs, William Audie
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 August 2013
Case Number
39029/2011
Procedural Posture
Civil Trial / Judgment After Trial on Merits and Quantum
Outcome
Defendants held liable to pay the amount due and owing to the plaintiff, subject to proper proof of quantum.
Judges
Jansen
Legal Topics
Suretyship, National Credit Act, Iustus Error, Matrimonial Property Act, Certificate of Balance, Reckless Credit
Banking and Finance Civil Procedure Commercial and Corporate Suretyship National Credit Act Iustus Error Matrimonial Property Act Certificate of Balance +1 more

Case Brief

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Parties

Absa Bank Limited

Plaintiff

Lowting, Lantis Egan Noel

Defendant

Wilson, Dann

Defendant

Jacobs, William Audie

Defendant

Procedural Posture

Civil Trial / Judgment After Trial on Merits and Quantum

Legal Issues

  1. 1 Whether the suretyship agreements signed by the defendants are enforceable.
  2. 2 Whether the National Credit Act 34 of 2005 applies to the suretyship agreements in question.
  3. 3 Whether the defendants were misled or induced to sign the suretyship agreements without understanding their nature (iustus error).

Ratio Decidendi

The court found that the defendants signed the suretyship agreements under circumstances where the nature and consequences of the documents were not explained to them by the bank's representative. Although the defendants did not expressly plead iustus error, the facts pleaded and evidence led established that they were misled by omission and did not intend to bind themselves as sureties and co-principal debtors. However, the court held that the mistake was induced primarily by the third defendant, who acted as their agent, and not by the plaintiff. Applying the Supreme Court of Appeal's decision in Slip Knot Investments 777 (Pty) Ltd v Du Toit, the court concluded that the defendants are...

Court Disposition

Defendants held liable to pay the amount due and owing to the plaintiff, subject to proper proof of quantum.

Orders

  • Plaintiff is ordered to state on oath within 5 court days whether the returned truck has been sold, and if so, for which amount; if not sold, reasons must be provided.
  • Plaintiff must clarify why interest was levied from 1 June 2011 and address the issue of incorrect address for the letter of demand.