1887

n Stellenbosch Law Review = Stellenbosch Regstydskrif - Skynverwekking en 'n verdeelde appèlhof

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Abstract

It is to the benefit of the South African law that our system allows for the reporting of minority judgements alongside the judgement of the majority of a court. In the long run, the arguments of all the reported judgements may be revisited and with the light of hindsight it very often happens that the minority judgement may at a later stage influence the further development of the applicable legal norms. <BR>In the judgement of the Supreme Court of Appeal in <I>Glofinco v Absa Bank Ltd t/a United Bank</I> the majority, on a very narrow margin of 3 / 2, dismissed the appeal against the judgement of Lewis J in the Witwatersrand division. In so doing, the majority found that Absa could not be held responsible for the clear misrepresentations made by its bank manager when she countersigned a whole battery of cheques of a client of the bank. The appellant as innocent third party is therewith condemned to shoulder the very significant loss of more than five million rand. <BR>The minority judgement differed from the majority on the question to what extent a public entity like a bank should be held responsible to the broader public for misrepresentations made by a person who was placed by the bank in a position of trust which clearly contributed to the misleading of the public. <BR>In this contribution the majority decision is weighted against the position taken in comparable jurisdictions in Europe in similar situations. It is argued that on the applicable principles involved the dismissal of the appeal runs counter to what was to be expected to be held in comparable jurisdictions. It is concluded that a slight change in emphasis in the pleadings of the appellant could have provided the necessary impetus for the appeal court to uphold the appeal. This would entail pleading that the misrepresentation of the bank is founded on the &lt;I&gt;omissio&lt;/I&gt; to inform the appellant that the manager was acting profoundly outside her mandate and that the bank declined to accept any liability on the cheques so signed at the clearing of the first cheque involved. By neglecting to act, the bank misrepresented that it accepted the liability as on the face of the documents. <BR>The pleadings in this case were silent on any averment that the appellant was misled by this inaction on the part of the bank, and this could have been detrimental to the success of the appeal. Legal representatives intending to found their defence on estoppel should carefully consider beforehand the exact content of the misrepresentation that their client is relying on, and ensure that every aspect of the requirements for the defence of estoppel is pleaded and proved. Too often practitioners tend to consider a plea of estoppel as a magic wand without deliberately considering whether all the requirements can be met. <BR>It is submitted that the public cannot be expected to question the mandate of every bank manager if business activities are to continue to thrive. The bank as institution is in the best position to monitor its own staff and to be vigilant for the possibility that a particular manager may try to overstep the margins set for his competence. The burden cannot reasonably be shifted on to the shoulders of the unsuspecting John Citizen only because a more vigilant attitude would have impacted negatively on the profits of the bank.

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/content/ju_slr/14/1/EJC54473
2003-01-01
2016-12-08
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