1. Contractual provisions often favour creditors by allowing them to issue a certificate of balance as proof of debt, frequently stipulating that such a certificate is sufficient proof in court proceedings of what is owed to the creditor.
2. In the matter of FirstRand Bank , the High Court had to resolve a dispute concerning a certificate of balance. In summary:
2.1. the Applicant bank viewed its certificate as conclusive proof of what was owed to it, arguing that it placed the onus on the Respondents to rebut it;
2.2. conversely, the Respondents argued that the certificate was merely prima facie evidence;
2.3. citing the common law defence of errore calculi, the Respondents contended that the onus remained on the Applicant to substantiate the debt, rather than on them to disprove it or establish the correct amount; and
2.4. the High Court agreed with the Respondents.
3. While the FirstRand Bank judgment did not detail all underlying authorities, its reasoning aligns with well-established principles from key Appellate Division cases like Senekal , Bank of Lisbon and Ex Parte Minister of Justice . A review of these cases clarifies the Court’s position in First Rand Bank.
4. The essential principles laid down in the matter of Bank of Lisbon can be summarised as follows:
4.1. a certificate of balance constitutes prima facie proof of the amount owing by the debtor;
4.2. a creditor who relies upon a certificate of balance is not required to present evidence in support of the certificate of balance ; and
4.3. debtor is required to put up evidence to rebut the prima facie probative value of the certificate of balance.
5. The court in Ex Parte Minister of Justice held definitively that contractual clauses attempting to make a creditor-authored certificate ‘conclusive proof’ are contra bonos mores (against public policy) and thus void, regardless of the contract’s context.
6. Highlighting the prima facie nature of these certificates, the Appellate Division in Senekal stated:
6.1. “At the end of the case, when all the evidence (which includes the certificate) is in, the Court must decide whether the party upon whom the onus rests has discharged it on a proper balance of probabilities. As was pointed out by Stratford JA in Ex parte Minister of Justice: In re R v Jacobson and Levy 1931 AD 466 at 478;
6.2. Prima facie evidence, in its more usual sense, is used to mean prima facie proof of an issue the burden of proving which is upon the party giving that evidence;
6.3. If the prima facie evidence or proof remains unrebutted at the close of the case, it becomes “sufficient proof” of the fact or facts (on the issues with which it is concerned) necessarily to be established by the party bearing the onus of proof.”
7. These cases underscore the critical need for both creditors and debtors to understand that certificates of balance generally serve only as prima facie evidence.
8. Parties must be prepared to present appropriate supporting or rebuttal evidence during litigation involving such certificates
9. If you have any further questions about certificates of balance or need assistance with litigation or commercial contracts, then please reach out, we would welcome the opportunity to discuss how we can assist you.
By: Ewald de Beer
- [1] Firstrand Bank Limited v Reineke and Another (A103/2024) [2025] ZAGPPHC 57 (21 January 2025).
- [2] Evidence that appears at first glance to be strong enough to establish a particular point or claim.
- [3] As the Supreme Court of Appeal was known then.
- [4] Senekal v Trust Bank of South Africa Ltd 1978 (3) SA 375 (A).
- [5] Bank of Lisbon International LTD v Venter en ‘n Ander 1990 (4) SA 463.
- [6] Ex Parte Minister of Justice: In Re Nedbank Ltd v Abstein Distributors (Pty) Ltd and Others and Donelly v Barclays National Bank Ltd 1995 (3) SA 1 (A).
- [7] Given the outcome of the FirstRand Bank matter, creditors would be cautioned to consider presenting evidence in support of the certificate of balance in any event.
- [8] At page 382, paragraph H to page 383, paragraph A. Note that this was also quoted (with approval) in the Bank of Lisbon matter at page 479, paragraphs C & D.
