Bernert v Absa Bank Ltd

Mr Enrico Bernert sought investment for an international motor vehicle manufacturing project. A document titled 'Verbiage of Bank Guarantee', purportedly issued by Absa Bank and addressed to Emirates Bank, was produced to satisfy a potential investor’s requirement for a bank undertaking. The document, prepared with the assistance of an Absa employee, purported to guarantee a US$6 million fixed deposit. Upon learning of the document, Absa informed Emirates Bank that it had been issued irregularly and without authority. As a result, the investor withdrew. Bernert (as cessionary of Rotrax Cars International CC) sued Absa for damages based on negligent misstatement. The High Court found Absa liable, but the Supreme Court of Appeal overturned that finding. Bernert then sought leave to appeal to the Constitutional Court, alleging judicial bias in the SCA.

Condonation for late filing was granted and leave to appeal to the Constitutional Court was granted.

The case is significant for its authoritative restatement of South African constitutional principles on judicial bias and recusal, particularly regarding shareholding in litigant companies and prior professional associations. It underscores the importance of public confidence in judicial impartiality and clarifies that allegations against senior appellate judges warrant constitutional scrutiny.