Firstrand Bank Limited v Malan and Another (33118/2010) [2014] ZAGPJHC 219 (28 July 2014)

Firstrand Bank Limited v Malan and Another (33118/2010) [2014] ZAGPJHC 219 (28 July 2014)

The court found that the applicant failed to specify in its founding papers whether the respondents' liability was joint or joint and several, and there was no evidence of an agreement to be severally liable. Accordingly, the liability is joint. The court further held that the applicant's certificate of balance could not be accepted as prima facie proof of the quantum, as the applicant's own evidence contradicted the certificate and the quantum claimed exceeded statutory limits under the National Credit Act. There was a material dispute of fact regarding the quantum, which could not be resolved on the papers. The matter was postponed for oral evidence on the quantum of the applicant's claim.

Citation
[2014] ZAGPJHC 219
Parties
Applicant: Firstrand Bank Limited; Respondent: Jean-Paul Malan; Respondent: Gipsy Malan
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
28 July 2014
Case Number
33118/2010
Procedural Posture
Civil Application / Postponement for Oral Evidence on Quantum
Outcome
Application postponed for oral evidence on the quantum of the applicant's claim; respondents' liability declared joint.
Judges
S S Mphahlele
Legal Topics
Mortgage Bond Enforcement, Joint Liability, Certificate of Balance, National Credit Act Compliance, Quantum Dispute
Banking and Finance Civil Procedure Mortgage Bond Enforcement Joint Liability Certificate of Balance National Credit Act Compliance Quantum Dispute

Case Brief

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Parties

Firstrand Bank Limited

Applicant

Jean-Paul Malan

Respondent

Gipsy Malan

Respondent

Procedural Posture

Civil Application / Postponement for Oral Evidence on Quantum

Legal Issues

  1. 1 Whether the respondents' liability under the loan agreement is joint or joint and several.
  2. 2 Whether the applicant has proven the quantum of its claim against the respondents.
  3. 3 Whether the certificate of balance can be accepted as prima facie proof of the amount owing.

Ratio Decidendi

The court found that the applicant failed to specify in its founding papers whether the respondents' liability was joint or joint and several, and there was no evidence of an agreement to be severally liable. Accordingly, the liability is joint. The court further held that the applicant's certificate of balance could not be accepted as prima facie proof of the quantum, as the applicant's own evidence contradicted the certificate and the quantum claimed exceeded statutory limits under the National Credit Act. There was a material dispute of fact regarding the quantum, which could not be resolved on the papers. The matter was postponed for oral evidence on the quantum of the applicant's claim.

Court Disposition

Application postponed for oral evidence on the quantum of the applicant's claim; respondents' liability declared joint.

Orders

  • The liability of the respondents towards the applicant is joint.
  • The application is postponed to a date to be arranged by the parties with the Registrar for the hearing of oral evidence.