n Annual Survey of South African Law - The law of delict




In 2012 (4) SA 415 (KZP), the plaintiff (P) sued the defendant (D) on a contract of deposit in terms of which P deposited money with D. The money was to be repaid with interest on a specified date. It is alleged that C, an executive consultant in D's employ, was authorised to represent D in this contract. C paid the deposits into accounts operated by a firm of chartered accountants and business advisers (PKF), instead of into D's trust account. P alleged that D had failed to repay the money, and claimed repayment from D. D denied any knowledge of the scheme, or that C was authorised to represent it in concluding such agreements. D filed a third-party notice in which it sought to hold PKF liable on the ground that, being aware that C was D's executive consultant, it had a legal duty to inform D that C was causing its accounts to be operated in this way, and that it had failed to do so. PKF excepted to the third-party notice on four grounds, of which only the fourth - that unlawfulness was not shown - is important for present purposes. D initially averred that the question of wrongfulness could not be addressed on exception because the existence or otherwise of a legal duty is a conclusion of law. It later conceded that there was no absolute bar to deciding on the existence or otherwise of a legal duty on exception.


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