Arrogance of commercial banks

I refer to a communication received from Standard Bank recently.

While one must be mindful of the amount of fraudulent activity confronting all banks on a daily basis, the arrogance of the banking sector has now plummeted to new depths.

On what basis does Standard Bank refuse documents certified by an attorney or a notary? What is the reason for requiring a copy of the last will and testament of the deceased? Why is there exception allowed for Standard Bank estate banking accounts? And finally, how do any of these requirements add any value to the issue at hand being the alleged prevention of fraud, risk and, the buzzword of this new millennium, compliance?

I am a sole practitioner and unable to leave my office for the time that will be necessary to find the person with the necessary authority at Standard Bank to approve these documents. Until recently I practiced in partnership with my (now retired) father. Neither of us has ever practiced outside of the fields of administering deceased estates, curatorship estates and the day-to-day administration of testamentary and inter vivos trusts, my father being involved in the practice of fiduciary services for 53 years and myself for 24 years.

Over the years, we have witnessed the position of the attorney executor/curator/trustee becoming weaker and weaker and that of the banking sector stronger and stronger, while the profession remains trapped in a strange form of inertia that has led to the attached communication.

Regretfully, this practice is not limited to Standard Bank but (and not limited to) the three other major banks as well. Some recent examples:

• After submitting Letters of Curatorship to Absa in October 2013 (who changed the address on record of the patient’s accounts to that of my office, which involved convincing a member of Absa’s legal department that a Death Certificate is not required to obtain Letters of Curatorship), Absa continued to allow the patient to operate the accounts leading to the loss of some R 50 000. When queried, Absa denied that the curatorship was placed on record by the curator, but cannot explain under what authority then, the address was
• Nedbank recently returned documents to me in a deceased estate that were certified by a notary with what can be described by no less than a demand that I return the documents certified by a commissioner of
• Standard Bank itself is notorious for refusing to accept a general power of attorney unless prepared on its stationery (which requires only one witness instead of the more common placed two).

One is and must be sympathetic to the banking sector’s need for fraud prevention and it is a sad indictment on the present day that fraud is rife and the fraudsters’ cunning increases daily. However, I do not accept that our profession (which admittedly has members and former members who are not always beyond reproach and act in their own self-interest) has sunk to the level that any bank official’s certification of a document supersedes mine as a notary.

The purpose of this letter is twofold –

• to open the debate among the profession (protection v arrogance) and to request a commitment from those that represent us at Law Society of South Africa and provincial law society level to engage with the banking sector urgently; and
• to take a stand and protect the members of the legal profession whom they represent from what has become, simply put, ongoing abuse at the hands of the banking

Nicholas Yeowart, attorney and notary, Cape Town

• The communication received from Standard Bank, which Mr Yeowart refers to in his letter, can be found here – Editor.

Drawing the line in the sand

I refer to my article ‘NCA: The line in the sand – can a cancelled agreement be revived?’ (2016 (May) DR 41). In the recent judgment in the Constitutional Court (Nkata v FirstRand Bank Limited and Others (The Socio-Economic Rights Institute of South Africa as Amicus Curiae) (CC) (unreported case no CCT73/2015, 21-4-2016) (Cameron J), the case relates to the judgment in the article above (Standard Bank of South Africa Ltd v Botes t/a JHLS Botes Vervoer (NWM) (unreported case no M85/2015, 13-8-2015) (Landman J). The two judgments, although distinguishable on the facts – are ad idem on the law.

Nkata supports the legal principle (confirmed in the Botes matter) that a credit agreement can only be reinstated in terms of s 129(3) before the credit provider has cancelled the agreement (see, inter alia, para 110 of Nkata).

In Botes s 129 had been complied with and the arrears were never purged. It was found that there was no reason to send a further s 129 notice pursuant to the breach of the payment plan, as the arrears had not been purged. Valid cancellation took place – which drew the line in the sand – whereafter reinstatement in terms of s 129(3) was no longer possible.

In Nkata the arrears were purged pursuant to a settlement agreement and thus the agreement reinstated in terms of s 129(3) – prior to the line in the sand or proper cancellation by the credit provider – who did not comply with s 129 on a factual level.

Elzaan Potgieter, candidate attorney, Johannesburg

This article was first published in De Rebus in 2016 (June) DR 5.