by Nicolene Schoeman-Louw
We often read about banks, clients and scams. Often we see litigation between the bank and its Client. So, where does the reciprocal duty start and end?
In Firstrand Bank Ltd v Kgethile (M370/2018) [2021], ZANWHC 63 (31 August 2021), considered this. Although not a binding decision, still extremely useful to consider. In this case, on 30 August 2010 client entered into a written agreement in which the bank (applicant) would open a banking account termed a Smart Account for the Client. The bank alleged that the Client was grossly negligent or fraudulent by using the account as an overdraft facility. The Client visited an internet café and received a pop-up screen message informing him he had won money. The message asked for the respondent to provide his banking details. Bank claimed based on breach of contract and alternatively fraud.
Court's finding and why it matters
Court re-emphasise the symbiosis of the relationship between banks and clients. Such symbiotic relationship embraces a reciprocal duty of care: between the bank for its clients; and clients for the bank.
In restating common law position: duty of care is owed to persons whom one can reasonably anticipate may suffer harm due to one's actions or inaction. But such damage has to be foreseeable. Banks must adhere to the customer's instructions and perform their duties with the required degree of care in good faith and without negligence. The bank must act only on the proper instructions of the respondent and not on fraudulent instructions.
The fact that the Client was negligent cannot justify a finding that this negligence summarily entitles the bank to damages for any consequences flowing from this specific negligent act. Moreover, the loss did not occur from the breach alone. The bank was also negligent regarding its contractual obligations in terms of the agreement.
Conclusion
Clients should not share their details with third parties unknown to them. All parties should be more vigilant and educate themselves continuously on the latest trends. Join one of our webinars or follow us on social media to stay informed of the latest developments and best practices.
Nicolene Schoeman-Louw founded SchoemanLaw Inc in 2007 in South Africa aged 24, and is now the Managing Director of the firm. She is an admitted Attorney of the High Court of South Africa, Conveyancer, Notary Public and Mediator; with a passion for entrepreneurs and helping them reach their most ambitious goals. She obtained her LLB degree cum laude and successfully completed her LLM degree (dissertation) in commercial law and B-BBEE, both at the University of the Free State. In addition, she obtained her postgraduate diploma in financial planning (CFP) at the University of Stellenbosch. She regularly contributes to various publications and shares her knowledge regularly on various radio stations. Nicolene has enjoyed the confidence of many successful entrepreneurs over the years and continues to do so. As a trusted advisor she has actively contributed to the successes of many businesses, helped and continues to help many entrepreneurs build lasting legacies.
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