A T W De Klerk v Absa Bank Ltd and Others

The appellant, a Pretoria attorney, invested in a financial scheme marketed by Absa Bank (then United Bank), Absa Insurance Brokers, and Commercial Union Life Assurance, on the strength of a brochure and oral representations by brokers. The scheme promised a minimum tax-free payout after ten years. The appellant alleged that these representations were fraudulent or negligent and unqualified, as the actual payout was significantly lower than represented. He claimed damages based on the loss of a chance to invest the funds more profitably elsewhere. At the close of the plaintiff’s case, the trial court granted absolution from the instance on the basis that the appellant had failed to prove damages, particularly that he would have invested the money elsewhere.

The appeal was upheld and the order granting absolution from the instance was set aside, with costs. The matter was remitted to the trial court for continuation.

The case is important for clarifying the stringent test for absolution from the instance in South African civil procedure and for recognising loss of a chance as a compensable head of damages in delict. It also emphasises the distinction between causation and quantification of damages and cautions trial courts against imposing too high a standard of proof at the close of the plaintiff’s case.