ABSA Bank Limited v Johannes Jacobus Izak Stephanus Lombard

In January 1988, the respondent (Dr Lombard) concluded a loan agreement with Trust Bank of Africa Limited (the appellant's predecessor) for R260,000. The agreement provided for interest at 15.55% per annum, subject to increase or decrease as the Bank might in its exclusive discretion determine, payable in 120 equal monthly instalments. The security included a bond over immovable property worth approximately R600,000, an assurance policy of about R260,000, and cession of debtors from a liquor store. Between 15 February 1988 and 15 July 1997, the respondent paid R701,055.71 by stop order. During this period, the Bank increased the interest rate from time to time in line with increases in the prime lending rate, but failed to reduce the rate when prime lending rates fell. Initially, the rate charged was 3.05% above prime. By 1993, the margin had increased to 8.05% above prime as the prime rate fell but the charged rate remained at 23.30%. The respondent brought a condictio indebiti claiming R187,130.51 as overpayment. The appellant counterclaimed for R51,796.60 as alleged outstanding debt.

• Whether the discretion conferred by the interest rate provision in the loan agreement was exercised reasonably by the Bank
• Whether the Bank was required to reduce the interest rate when prime lending rates fell, having increased the rate when prime rates rose
• Which party bore the onus of proving the reasonableness or unreasonableness of the exercise of discretion
• Whether the Janse van Rensburg principle regarding current accounts applied to a loan agreement with fixed advance and interest debits only
• Whether the waiver of legal exceptions (non causa debiti and errore calculi) affected the onus of proof

The appeal was dismissed with costs. The judgment of De Vos J in the Pretoria High Court, which dismissed the appellant's claim in reconvention for R51,796.60, was upheld.

Where a loan agreement confers on a lender a discretion to vary the interest rate, that discretion must be exercised reasonably (arbitrio boni viri). Where a lender increases interest rates in line with increases in the prime lending rate, the lender must also decrease the interest rate when the prime lending rate falls, unless there are justifiable reasons for not doing so (such as a change in the borrower's risk profile). A failure to reduce rates when prime rates fall, while having increased them when prime rates rose, constitutes an unreasonable exercise of the discretion. Once a borrower establishes a prima facie case of unreasonable exercise of discretion (such as through evidence of asymmetric rate adjustments and unchanged risk profile), the onus shifts to the lender to provide justification for the manner in which the discretion was exercised.

The Court expressed the view, without finally deciding, that the waiver of legal exceptions (non causa debiti and errore calculi) may have the effect of placing the onus of proving a defence on the debtor, based on Cohen v Louis Blumberg (Pty) Ltd 1949 (2) SA 849 (W). However, this did not affect the outcome as the respondent had established a prima facie case which was not rebutted. The Court also observed that it was common cause that if the interest rate had been maintained at 3.05% above prime throughout the loan period, the entire debt would have been discharged by January 1998, illustrating the significant financial impact of the unreasonable exercise of discretion.

This case is significant in South African banking and contract law as it establishes clear limits on the discretion of banks to vary interest rates under loan agreements. It reinforces the principle established in NBS Boland Bank Ltd v One Berg River Drive CC 1999 (4) SA 928 (SCA) that discretionary powers to vary interest rates must be exercised arbitrio boni viri (reasonably). The case demonstrates that where a bank increases interest rates in line with prime rate increases, it must also decrease rates when prime rates fall, absent justifiable reasons related to changed risk profiles. The judgment clarifies that the principle in ABSA Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA) regarding current accounts does not apply to straightforward loan agreements. It protects consumers from arbitrary or one-sided exercise of contractual discretions by financial institutions.