The complainant’s husband passed away and she was appointed as the administrator of the deceased estate by the Master of the High Court. It subsequently came to the complainant’s attention that the bank had granted her late husband a loan of R25 000.00 without her knowledge or consent. As they were married in community of property, the complainant asked that the debt incurred be written off as she had not given her consent. Furthermore, the complainant claimed that it was reckless lending since her late husband could not afford the loan repayments.

The bank advised that it had conducted an affordability assessment prior to granting of the loan to the complainant’s late husband and accordingly denied the credit had been granted recklessly. The bank further stated that it had relied on the accuracy of the information supplied by the complainant’s late husband and the fact that he declared that he had obtained the necessary spousal consent.

The OBS’s investigation concluded that the loan had not been granted recklessly. However, after careful consideration of the agreement that was signed by the complainant’s husband, it was found that the bank could not rely on an agreement that was signed by the complainant’s husband, as the declaration form signed by the complainant’s late husband specifically catered for the complainant to declare that she consented to her late husband obtaining the loan from the bank. The bank could therefore not have been under the impression that the agreement was being entered into with the consent of the complainant, as she had not signed this declaration.

The OBS however did not overlook the fact that the joint estate had benefited from the money advanced by the bank to the complainant’s late husband. It was our recommendation therefore that the joint estate should merely repay the outstanding capital amount and that the bank should write off associated fees and interest, to which it agreed.

The bank can be held liable in instances where it is clear that no spousal consent was obtained, but not to such an extent that a complainant is unjustifiably enriched at the expense of the bank.

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