Good Day Peoples,
This is an actual clause in a mortgage contract:
13.3 The nature and amount of the mortgager's indebtedness to the bank in terms of this agreement, as well as the annual finance charge
rate payable in respect thereof, will at any time be determined and proved by a written certificate purporting to have been signed by a
Manager or Accountant for the time being of any branch or the Head Office of the bank, whose capacity or authority it will not be necessary to prove,
which certificate will upon the mere production thereof be binding on the mortgager and be prima facie proof of the contents of such certificate
and the fact that such amount is due and payable in any legal proceedings against the mortgager, and will be valid as a liquid document against
the mortgager in any competent court.
2. In the loan agreement there is a clause which is referred to as a conclusive proof clause. The Supreme Court of Appeal ruled against such clauses in 1995. The loan agreement is dated 1997. The case law is Ex Parte Minister of Justice in Re: Nedbank Ltd v Abstein Distributors (Pty) Ltd and Others AND Donelly v Barclays National Bank Ltd. March 1995.
In this case the ruling is clear and unambiguous; the author of a certificate of balance as proof cannot be the creditor.
"The interpretation of the Court in Nedbank Ltd v Abstein Distributors (Pty) Ltd and Others 1989 (3) SA 750 (T) of the decision of the Appellate Division of the Supreme Court of South Africa in the matter of Sasfin (Pty) Ltd v Beukes 1989(1) SA 1 (A) relating to the validity of a so-called "conclusive proof clause" in favour of a creditor in an agreement in terms whereof the creditor is to be the author of the certificate of balance issued under such a clause, correctly reflects the law, namely, that such a clause is in itself contra bonos mores and therefore void regardless of the context of the agreement in which it finds itself."
Why is there an illegal clause in the loan agreement? To my knowledge this ruling is unchallenged.