ABSA Bank Ltd v Bernert (99/09) [2010] ZASCA 36; 2011 (3) SA 74 (SCA) (29 March 2010)

ABSA Bank Ltd v Bernert (99/09) [2010] ZASCA 36; 2011 (3) SA 74 (SCA) (29 March 2010)

The Supreme Court of Appeal found that the claim in delict was unsustainable both in law and on the facts. The court held that liability for negligent misstatement requires that the misstatement be made to and relied upon by the plaintiff, which was not the case here, as the statements were made to Emirates Bank, not Bernert. Furthermore, the statements made by ABSA Bank's attorney were found to be correct: the document was unauthorised, issued in irregular circumstances, and capable of misleading third parties. The court also found that the causative link between ABSA Bank's conduct and the alleged damages was speculative and unsupported by evidence. The separation of issues at trial was...

Citation
[2010] ZASCA 36
Parties
Appellant: ABSA Bank Limited; Respondent: Enrico Bernert
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 March 2010
Case Number
99/09
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court (pretoria), First Instance
Outcome
Appeal upheld; claim dismissed with costs, including costs of two counsel where so employed.
Judges
Nugent, Cachalia, Malan, Tshiqi, Majiedt
Legal Topics
Negligent Misstatement, Pure Economic Loss, Causation, Separation of Issues Rule 33 4
Delict Civil Procedure Negligent Misstatement Pure Economic Loss Causation Separation of Issues Rule 33 4

Case Brief

Summary, issues, holding and outcome

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Parties

ABSA Bank Limited

Appellant

Enrico Bernert

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court (pretoria), First Instance

Legal Issues

  1. 1 Whether ABSA Bank was liable in delict for damages arising from a negligent misstatement made to Emirates Bank International.
  2. 2 Whether the statements made by ABSA Bank's attorney were false and wrongful.
  3. 3 Whether causation between ABSA Bank's conduct and the alleged damages was established.

Ratio Decidendi

The Supreme Court of Appeal found that the claim in delict was unsustainable both in law and on the facts. The court held that liability for negligent misstatement requires that the misstatement be made to and relied upon by the plaintiff, which was not the case here, as the statements were made to Emirates Bank, not Bernert. Furthermore, the statements made by ABSA Bank's attorney were found to be correct: the document was unauthorised, issued in irregular circumstances, and capable of misleading third parties. The court also found that the causative link between ABSA Bank's conduct and the alleged damages was speculative and unsupported by evidence. The separation of issues at trial was...

Court Disposition

Appeal upheld; claim dismissed with costs, including costs of two counsel where so employed.

Orders

  • The appeal is upheld with costs, including the costs of two counsel where applicable.
  • The order of the court below is set aside and substituted with an order dismissing the claim with costs.