De Klerk v Absa Bank Ltd and Others (176/2002) [2003] ZASCA 6; [2003] 1 All SA 651 (SCA); 2003 (4) SA 315 (SCA) (6 March 2003)

De Klerk v Absa Bank Ltd and Others (176/2002) [2003] ZASCA 6; [2003] 1 All SA 651 (SCA); 2003 (4) SA 315 (SCA) (6 March 2003)

The Supreme Court of Appeal held that the trial court erred in granting absolution from the instance at the close of the plaintiff's case. The appellant had presented sufficient evidence, both direct and inferential, to support a reasonable finding that he would have invested elsewhere had he not been misled by the respondents' representations. The court clarified that while causation must be proved on a balance of probability, quantification of damages for loss of a chance does not require such proof and may be estimated by the court. The evidence of the actuary, combined with the appellant's own testimony regarding his investment intentions, was adequate to cross the threshold required...

Citation
[2003] ZASCA 6
Parties
Appellant: A T W De Klerk; Respondent: Absa Bank Ltd; Respondent: Absa Insurance Brokers (Pty) Ltd; Respondent: Commercial Union Life Assurance Co of SA Ltd; Respondent: Neville G Du Toit; Respondent: Gert van Rooyen
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
6 March 2003
Case Number
176/2002
Procedural Posture
Civil Appeal / Appeal Against Order of Absolution From the Instance at Close of Plaintiff's Case
Outcome
Appeal allowed; absolution from the instance set aside; matter remitted for further hearing.
Judges
Marais, Schutz, Cameron, Cloete, Shongwe
Legal Topics
Misrepresentation, Damages Quantification, Loss of Chance, Absolution From Instance
Commercial and Corporate Civil Procedure Misrepresentation Damages Quantification Loss of Chance Absolution From Instance

Case Brief

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Parties

A T W De Klerk

Appellant

Absa Bank Ltd

Respondent

Absa Insurance Brokers (Pty) Ltd

Respondent

Commercial Union Life Assurance Co of SA Ltd

Respondent

Neville G Du Toit

Respondent

Gert van Rooyen

Respondent

Procedural Posture

Civil Appeal / Appeal Against Order of Absolution From the Instance at Close of Plaintiff's Case

Legal Issues

  1. 1 Whether the plaintiff presented sufficient evidence to survive absolution from the instance at the close of his case.
  2. 2 Whether the representations made to the plaintiff were false, fraudulent, or negligent.
  3. 3 Whether the plaintiff suffered damages due to loss of a chance to invest elsewhere.

Ratio Decidendi

The Supreme Court of Appeal held that the trial court erred in granting absolution from the instance at the close of the plaintiff's case. The appellant had presented sufficient evidence, both direct and inferential, to support a reasonable finding that he would have invested elsewhere had he not been misled by the respondents' representations. The court clarified that while causation must be proved on a balance of probability, quantification of damages for loss of a chance does not require such proof and may be estimated by the court. The evidence of the actuary, combined with the appellant's own testimony regarding his investment intentions, was adequate to cross the threshold required...

Court Disposition

Appeal allowed; absolution from the instance set aside; matter remitted for further hearing.

Orders

  • The appeal is allowed with costs, including costs of senior counsel.
  • Defendants are jointly and severally liable for the costs.