Gossayn and Another v Nedbank Limited (A5049/2015) [2017] ZAGPJHC 214 (16 July 2017)

Gossayn and Another v Nedbank Limited (A5049/2015) [2017] ZAGPJHC 214 (16 July 2017)

The court held that, assuming section 81(2) of the National Credit Act applied to the consolidation agreement, the appellants failed to discharge the onus of proving reckless lending. Nedbank's witnesses provided uncontested evidence of a thorough financial assessment, including review of Mrs Gossayn's assets, liabilities, income, and the corporation's financial statements. The appellants did not testify or present evidence to challenge the assessment or the certificate of balance. The court found that Nedbank acted in good faith and took reasonable steps to assess affordability. The defence of reckless lending was not supported by the facts, and the appeal was dismissed with costs.

Citation
[2017] ZAGPJHC 214
Parties
Appellant: Loraine Philomena Gossayn; Appellant: Stephen Anthony Gossayn; Respondent: Nedbank Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 July 2017
Case Number
A5049/2015
Procedural Posture
Civil Appeal / Full Bench Appeal From Trial Court Judgment
Outcome
Appeal dismissed with costs, including costs of Senior Counsel.
Judges
T Brenner, E Molahlehi, I Opperman
Legal Topics
National Credit Act, Reckless Lending, Mortgage Bond Enforcement, Summary Judgment, Special Executability
Banking and Finance Civil Procedure National Credit Act Reckless Lending Mortgage Bond Enforcement Summary Judgment Special Executability

Case Brief

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Parties

Loraine Philomena Gossayn

Appellant

Stephen Anthony Gossayn

Appellant

Nedbank Limited

Respondent

Procedural Posture

Civil Appeal / Full Bench Appeal From Trial Court Judgment

Legal Issues

  1. 1 Whether the consolidation agreement constituted a credit agreement under section 81(2) of the National Credit Act.
  2. 2 Whether Nedbank failed to comply with its obligations under section 81(2) of the National Credit Act when entering into the consolidation agreement.
  3. 3 Whether Nedbank engaged in reckless lending as defined by section 80(1) of the National Credit Act.

Ratio Decidendi

The court held that, assuming section 81(2) of the National Credit Act applied to the consolidation agreement, the appellants failed to discharge the onus of proving reckless lending. Nedbank's witnesses provided uncontested evidence of a thorough financial assessment, including review of Mrs Gossayn's assets, liabilities, income, and the corporation's financial statements. The appellants did not testify or present evidence to challenge the assessment or the certificate of balance. The court found that Nedbank acted in good faith and took reasonable steps to assess affordability. The defence of reckless lending was not supported by the facts, and the appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs, including costs of Senior Counsel.

Orders

  • The appeal is dismissed.
  • The appellants are directed, jointly and severally, to pay the costs of the appeal, including the costs of Senior Counsel.