ABSA Bank Limited v Bernert

Mr Enrico Bernert, through his close corporation Rotrax International CC, sought financing to establish a motor vehicle manufacturing plant. He became involved with intermediaries who claimed to represent a wealthy foreign investor, Sheikh Fawaz. As a precondition to investment, Bernert was required to produce a document from a reputable South African bank confirming that it would accept a fixed deposit of US$6 million at a guaranteed interest rate. Through the involvement of an Absa insurance broker (Mr Els) and an Absa employee (Mr Coetzee), a document was produced on Absa Bank letterhead and signed by Coetzee, although it was irregular, unauthorised, and nonsensical in content. When Absa Bank later discovered the document, it informed Emirates Bank that it had been issued without authority and should not be relied upon. Following this, the purported investor withdrew, and the proposed project collapsed. Bernert, as cessionary of Rotrax’s claim, sued Absa Bank in delict for damages, alleging that Absa’s conduct in repudiating the document unlawfully caused the loss of the anticipated investment.

The appeal was upheld with costs, including the costs of two counsel. The order of the High Court was set aside and substituted with an order dismissing the plaintiff’s claim with costs.

The case clarifies the limits of delictual liability for negligent misstatement in South African law, particularly in a banking context. It confirms that a bank does not act unlawfully by correcting or repudiating unauthorised documents purportedly issued in its name. The judgment also underscores the importance of properly separating issues under Rule 33(4) and warns against speculative claims based on tenuous causation in commercial delict cases.