A home loan applicant, who claimed that Nedbank had placed an adverse report regarding him on the SA Fraud Prevention Service database for all to see, has turned to the Gauteng High Court, Pretoria, for the bank and the database to remove the report.
The SA Fraud Prevention Service database is a non-profit company registered with the National Credit Regulator and maintains a fraud database.
Nedbank placed the adverse report regarding the applicant, Mr du Bruyn, on the database pursuant to two home loan applications that the applicant submitted, which the bank believed contained false information.
Du Bruyn argued that the retention of the listing on the database is unlawful, invalid and incorrect.
The court was told that the SA Fraud Prevention Service database partners with financial institutions with a view to providing information to the finance industry relating to fraud, financial crime and identity theft.
Other financial institutions can then access it when considering prospective clients.
In defending the application, Nedbank said it placed the report regarding Du Bruyn on the database as it believed that he had supplied false information when he applied for two home loans.
Du Bruyn said he only became aware of the listing six years later. The listing records his name and ID number. It also stated that "the applicant submitted fraudulent salary advices in support of two home loan applications”. It also stated that he had either forged or submitted incorrect payslips.
When the applicant became aware of the listing, he filed a dispute with the fraud prevention database. Nedbank, meanwhile, provided the applicant with reasons for the listing.
It stated that the applicant had submitted a home loan application in 2017 which he subsequently withdrew, but it had contained false information relating to his employment and residential address. A second home loan application was later submitted, the veracity of which the bank equally challenged.
The bank alleged that the applicant had submitted fabricated supporting documents, including salary advices, in support of the home loan applications.
The dispute was subsequently dismissed on the grounds that the SA Fraud Prevention Service database believed that credible evidence had been received which justified the listing.
The bank said the applicant had stated in his loan application that he had stayed at a certain address in Waterkloof for the past 10 years, which was not true.
It said there were also discrepancies relating to the applicant's employment period with his then employer and the employer's contact details on the salary advice were that of the applicant.
Another complaint was that the company with which applicant was employed did not operate from the address provided on the applications.
The applicant's attorney submitted a letter, written by the applicant's employer, who attempted to explain the discrepancies relating to the period of employment and the employer's address, as well as the reason why the employer's contact details were also those of the applicant.
It also explained the reasons why the employer's business address was no longer in use.
Judge Jan Swanepoel said the details of the explanation are not relevant to this judgment.
What is relevant is that it is common cause that the applicant alleged in the applications that when he submitted the applications he resided at the time, and for 10 years prior to this, at a certain address in Waterkloof.
“That was not true, as the applicant had already left that address in 2012, and had not resided there in the four years before he submitted the applications,” the judge said.
In trying to explain the incorrect address, the applicant’s attorney said it was “an innocent oversight” on his side.
The judge said what is common cause between the parties is that the applicant provided a false residential address on both applications. He rejected the applicant’s explanation for this.
Judge Swanepoel said the applicant “surely knew where he was residing in 2016 and 2017 when he applied for the home loans”.
He also rejected the applicant’s argument that “a mere misrepresentation does not amount to fraud”.
“Fraud is the unlawful and intentional making of a misrepresentation to another, which prejudices, or has the potential to prejudice, the other person,” the judge commented.
While he wasn't going to delve into the other issues, there is no question that the applicant misrepresented his address, the judge said.
“I reject the contention that the representation was made out of 'habit'. Such an explanation is simply not tenable.
“There is no doubt that should a lender be provided with misleading information regarding an aspect as crucial as the residential address of the potential borrower, the lender is at least potentially at risk of prejudice. Such conduct is unlawful,” the judge said.
Pretoria News