Jooste v Absa Bank Ltd t/a Trust Bank (A1339/04 , A1339/04) [2006] ZAGPHC 57 (1 June 2006)

Jooste v Absa Bank Ltd t/a Trust Bank (A1339/04 , A1339/04) [2006] ZAGPHC 57 (1 June 2006)

The court held that the major part of the appellant's counterclaim for repayment of overcharged interest was prescribed, as prescription began to run in December 1991 when the close corporation became aware of the interest rate being charged in excess of the agreed rate. The remaining portion of the claim, relating to interest charged after November 1992, was found to have been acquiesced to by the close corporation, which received monthly statements and paid the amounts demanded without protest or objection. The court found no basis to disturb the magistrate's findings and dismissed the appeal, confirming that absolution from the instance was correctly granted. The issue of cession was...

Citation
[2006] ZAGPHC 57
Parties
Appellant: Antoinette Jooste; Respondent: Absa Bank Ltd t/a Trust Bank
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
1 June 2006
Case Number
A1339/04
Procedural Posture
Civil Appeal / Appeal Against Grant of Absolution From the Instance in the Magistrates' Court
Outcome
Appeal dismissed with costs; absolution from the instance confirmed.
Judges
B.R. Southwood, F.J. Jooste
Legal Topics
Prescription Act, Overcharging of Interest, Condictio Indebiti, Absolution From the Instance
Banking and Finance Civil Procedure Prescription Act Overcharging of Interest Condictio Indebiti Absolution From the Instance

Case Brief

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Parties

Antoinette Jooste

Appellant

Absa Bank Ltd t/a Trust Bank

Respondent

Procedural Posture

Civil Appeal / Appeal Against Grant of Absolution From the Instance in the Magistrates' Court

Legal Issues

  1. 1 Whether the appellant's counterclaim for repayment of overcharged interest was prescribed.
  2. 2 Whether Emerald Creek Spur CC acquiesced in the interest rate charged by Volkskas Bank Ltd.
  3. 3 Whether the evidence regarding the cession of the claim from Emerald Creek Spur CC to the appellant was clearly untrue.

Ratio Decidendi

The court held that the major part of the appellant's counterclaim for repayment of overcharged interest was prescribed, as prescription began to run in December 1991 when the close corporation became aware of the interest rate being charged in excess of the agreed rate. The remaining portion of the claim, relating to interest charged after November 1992, was found to have been acquiesced to by the close corporation, which received monthly statements and paid the amounts demanded without protest or objection. The court found no basis to disturb the magistrate's findings and dismissed the appeal, confirming that absolution from the instance was correctly granted. The issue of cession was...

Court Disposition

Appeal dismissed with costs; absolution from the instance confirmed.

Orders

  • The wasted costs of 3 October 2005 are to be costs in the cause.
  • The appeal is dismissed with costs.