Holtzhausen v Absa Bank Ltd. (280/03) [2004] ZASCA 79; 2008 (5) SA 630 (SCA) [2005] 2 All SA 560 (SCA) (17 September 2004)

Holtzhausen v Absa Bank Ltd. (280/03) [2004] ZASCA 79; 2008 (5) SA 630 (SCA) [2005] 2 All SA 560 (SCA) (17 September 2004)

The Supreme Court of Appeal held that the trial court erred in granting absolution from the instance on the basis that a delictual claim was not maintainable where a contractual claim was available. The court clarified that Lillicrap only bars delictual claims where the negligence alleged is the breach of a contractual term, and does not preclude a claim in delict for negligent misstatement causing pure economic loss when the duty arises independently of contract. The pleadings and evidence established that the appellant's claim was based on a negligent misstatement by the bank manager, not on breach of contract. The evidence was sufficient to support a possible finding of a legal duty...

Citation
[2004] ZASCA 79
Parties
Appellant: F F Holtzhausen; Respondent: Absa Bank Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
17 September 2004
Case Number
280/03
Procedural Posture
Civil Appeal / Appeal Against Absolution From the Instance at the Close of Plaintiff's Case
Outcome
Appeal allowed; order of absolution from the instance set aside; matter remitted for further proceedings.
Judges
Cloete, Harms, Navsa, Brand, Heher
Legal Topics
Negligent Misstatement, Pure Economic Loss, Concurrent Liability, Absolution From Instance
Delict Banking and Finance Negligent Misstatement Pure Economic Loss Concurrent Liability Absolution From Instance

Case Brief

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Parties

F F Holtzhausen

Appellant

Absa Bank Limited

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether a claim in delict for negligent misstatement causing pure economic loss is maintainable when a concurrent contractual claim exists.
  2. 2 Whether the trial court correctly granted absolution from the instance based on Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd.
  3. 3 Whether the bank manager owed a legal duty to the plaintiff and was negligent in his representation.

Ratio Decidendi

The Supreme Court of Appeal held that the trial court erred in granting absolution from the instance on the basis that a delictual claim was not maintainable where a contractual claim was available. The court clarified that Lillicrap only bars delictual claims where the negligence alleged is the breach of a contractual term, and does not preclude a claim in delict for negligent misstatement causing pure economic loss when the duty arises independently of contract. The pleadings and evidence established that the appellant's claim was based on a negligent misstatement by the bank manager, not on breach of contract. The evidence was sufficient to support a possible finding of a legal duty...

Court Disposition

Appeal allowed; order of absolution from the instance set aside; matter remitted for further proceedings.

Orders

  • The appeal is allowed, with costs.
  • The order of the court below is set aside.