Abstract
Does a bank have the right to cancel the contract between it and its customer unilaterally? This was the crisp question put to the court in the recent decision in Bredenkamp v Standard Bank of South Africa Ltd (2010 4 SA 468 (SCA); 2010 4 All SA 113 (“Bredenkamp: appeal”)). Before this case reached the Supreme Court of Appeal (“SCA”), two lower courts were asked to pronounce on the same question (see Breedenkamp v Standard Bank of South Africa 2009 3 All SA 339 (GSJ); 2009 5 SA 304 (GSJ) (“Bredenkamp: interim application”)); and Breedenkamp v Standard Bank of South Africa Ltd 2009 6 SA 277 (GSJ) (“Bredenkamp: main application”). (In passing it should be mentioned that Bredenkamp’s name was spelt incorrectly in the citation of both the interim and main applications; Bredenkamp’s name was correctly spelt in the citation of the decision of the SCA). The present discussion will refer to all three these decisions.
Highlights
Does a bank have the right to cancel the contract between it and its customer unilaterally?. This was the crisp question put to the court in the recent decision in Bredenkamp v Standard Bank of South Africa Ltd (2010 4 SA 468 (SCA); 2010 4 All SA 113 (“Bredenkamp: appeal”))
The Supreme Court of Appeal’s interpretation and explanation of the principles first laid down in the Barkhuizen case constitute a correct application of the constitutional principles underlying the enforcement of contractual terms
It further held that the Barkhuizen case did not lay down an overarching requirement of fairness in contracts
Summary
Does a bank have the right to cancel the contract between it and its customer unilaterally?. This was the crisp question put to the court in the recent decision in Bredenkamp v Standard Bank of South Africa Ltd (2010 4 SA 468 (SCA); 2010 4 All SA 113 (“Bredenkamp: appeal”)). Before this case reached the Supreme Court of Appeal (“SCA”), two lower courts were asked to pronounce on the same question (see Breedenkamp v Standard Bank of South Africa 2009 3 All SA 339 (GSJ); 2009 5 SA 304 (GSJ) (“Bredenkamp: interim application”)); and Breedenkamp v Standard Bank of South Africa Ltd 2009 6 SA 277 (GSJ) (“Bredenkamp: main application”). The present discussion will refer to all three these decisions
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