Talhado Fishing Enterprises (Pty) Ltd v Firstrand Bank Ltd t/a First National Bank (1104/2022) [2023] ZAECQBHC 16 (14 March 2023)

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[2023] ZAECQBHC 16
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Talhado Fishing Enterprises (Pty) Ltd v Firstrand Bank Ltd t/a First National Bank (1104/2022) [2023] ZAECQBHC 16 (14 March 2023)

IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
GQEBERHA
Case no.: 1104/2022
Date heard: 11 October
2022
Date delivered: 14
March 2023
In the matter between:
TALHADO FISHING
ENTERPRISES (PTY) LTD

Applicant
and
FIRSTRAND BANK LTD t/a
FIRST NATIONAL BANK

Respondent
JUDGMENT
BENEKE A.J.:
Introduction
1
This is an application for leave to appeal
against an order wherein I dismissed an urgent application.
Legal principles
applicable to applications for leave to appeal:
2
Section 17
of the
Superior Courts Act 10 of 2013
provides
that:
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that —
(a)
(i)        the appeal would have a
reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting
judgments on the matter under consideration;
(b)   …
(c)    …
(2) (a)
Leave to appeal may be granted by the judge or judges
against whose
decision an appeal is to be made or, if not readily available, by any
other judge or judges of the same court or
Division.
(b)
…
(c)
…
(d)
…
(e)
…
(f)
…
(3)
…
(4)
…
(5)
…
(6) (a)
If leave is granted under subsection (2)(a) … to
appeal
against a decision of a Division as a court of first instance
consisting of a single judge, the judge or judges granting
leave must
direct that the appeal be heard by
a full court of that Division
,
unless they consider —
(i)
that the decision to be appealed involves a question of law of
importance, whether
because of its general application or otherwise,
or in respect of which a decision of the Supreme Court of Appeal is
required to
resolve differences of opinion; or
(ii)
that the administration of justice, either generally or in the
particular case, requires
consideration by the Supreme Court of
Appeal of the decision, in which case they must direct that the
appeal be heard by the Supreme
Court of Appeal.
(b)
…
(7)
…
”
3
The
“
reasonable
prospect of success
”
test is one which had been adopted over many years.
[1]
The replacement by the word “
would
”
of “
may
”,
has raised the bar of the test that now has to be applied to the
merits of the proposed appeal before leave should be granted;
[2]
an appellant faces a higher and more stringent threshold.
[3]
4
Irrespective
of the prospects of success, there may nevertheless exist a
compelling reason for the appeal to be heard. The subsection
does not
contain an exhaustive list of criteria, and each application for
leave to appeal must be decided on its own facts.
[4]
5
It
is the applicant for leave to appeal must demonstrate that there is a
compelling reason why the appeal should be heard.
[5]
6
The
substantial importance of the case to the appellant or to both the
appellant and the respondent constitutes a compelling reason
under
this subsection why an appeal should be heard.
[6]
7
Other
compelling reasons include the fact that the decision sought to be
appealed against involves an important question of law
[7]
and
that the administration of justice, either generally or in the
particular case concerned,
[8]
requires
the appeal to be heard. A discrete issue of public importance which
will have an effect on future matters, even where
an appeal has
become moot, also constitutes a compelling reason.
[9]
8
As
far as compelling reasons are concerned, the merits of the prospects
of success remain vitally important and are often decisive.
[10]
9
What
is of paramount importance in deciding whether a judgment is
appealable, is the interests of justice.
[11]
10
In
the event of the existence of conflicting judgments, it follows that
it is of public importance and in the public interest that
legal
certainty should be obtained.
[12]
For
this reason
s 17(6)
(a)
(i)
makes provision that the judge or judges granting leave must direct
that the appeal be heard by the Supreme Court of Appeal
if they
consider that the decision to be appealed involves a question of law
in respect of which a decision of the Supreme Court
of Appeal is
required to resolve differences of opinion. See further the notes to
s 17(6)
(a)
(i)
of the Act s v ‘A decision of the Supreme Court of Appeal is
required to resolve the difference of opinion’ below.
11
Ordinarily,
leave to appeal against a decision of a single judge of a division of
the High Court should be granted to the full court
of the relevant
division. Leave to appeal to the Supreme Court of Appeal should be
given only after the judge granting leave to
appeal is satisfied that
the requirements of par (i) and (ii) of this subsection are
satisfied.
[13]
12
As
far as questions of law are concerned, it is submitted that the test
is not the difficulty or complexity of such a question,
but rather
whether the question of law is
res
nova
or
involves a matter of principle rendering it important.
[14]
If the law is not really controversial, the matter should be heard by
the full court of the division of the High Court concerned.
[15]
Grounds of Appeal
Based on allegations
of a material error of fact
13
The applicant contends that I erred by finding that one of the
applicant's
shareholders, Premier Fishing, is implicated in the Mpati
Report.  The applicant contends that, although Premier Fishing
was
referred to in the Report, it was not implicated to the extent
that it implicated the applicant.  The applicant further
contends
that, as a result of this factual error, I held that the
applicant has a problem with causation and that it was,
inter
alia
, the mention of the applicant's shareholders in the Mpati
Report that unbanked the applicant.
13.1
Premier Fishing is implicated in the Mpati
Report.  That finding is correct.
13.2
I never found, nor do I think it correct to
suggest, that the implication of Premier Fishing in the Mpati Report
necessarily
implicates the applicant in any malfeasance.
13.3
The evidence of the respondent, which could
not be controverted by the applicant, was that the respondent
cancelled the contract between the parties, not because of the
truth of the allegations underlying the Mpati Report, but based on

the fact of the applicant’s membership of the Sekunjalo Group
and the allegations in the Mpati Report, and the possible
reputational and commercial consequences of that for the respondent.
In this regard, the respondent did not seek to rely on
the factual
accuracy of the Report, but on the Sekunjalo Group’s reputation
itself.
13.4
In light of the above, I did not make a
material error of fact in this regard.
13.5
The applicant, therefore, does not have a
reasonable prospect of success on this ground.
14
The applicant had secured an interdict against the respondent
in the Equality Court interdict application.
14.1
This is indeed an error.  It was
Nedbank against whom the interdict was secured.
14.2
The applicant contends that this error might have led me to
believe that the applicant had an alternative remedy.
14.3
It is apparent from the judgment that my
first and only concern was the issue of whether or the applicant had
succeeded in proving
a
prima facie
right which required protection; at no stage did the requirement of
an alternative remedy enter into the deliberations.
14.4
Accordingly, this error of fact did not
affect the outcome of the matter.
14.5
The applicant, therefore, does not have a
reasonable prospect of success on this ground.
15
Fundamentally, both parties rely on a contractual provision,
express or implied, that governs the termination of the contract.
15.1
The applicant relies upon the closing of
certain bank accounts listed in Annexure “FA2”.  In
this document, it
is expressly stated that the relationship between
the parties is governed by “
the
private law principles of the law of contract
”.
15.2
The exact terms of the contract are in
dispute.  This is evident,
inter
alia
, from par 86 and 113 of the
founding affidavit and Annexure “FA17”, read with par 33
of the answering affidavit and
Annexure “FNB3” and par
24, 25, 54, and 55 of the replying affidavit, as well as par 23 and
24 of the respondent’s
heads of argument regarding the implied
right to cancel.
15.3
Accordingly, the finding identified by the
applicant as erroneous is, in fact, not so.
15.4
The applicant, therefore, does not have a
reasonable prospect of success on this ground.
15.5
The applicant contends, within this ground,
that I should have found that “
FNB failed to prove
that it was entitled to terminate the contractual relationship on the
basis of the terms and conditions upon
which it relied.
”
15.6
This contention is dealt with under the
contentions related to material errors of law, and I refer the reader
to that par.
16
A hearing in the form of a discussion (between the applicant
and the respondent) would not have had any effect and would have been

an exercise in futility.
16.1
It is contended that I erred in making this statement, as no
evidence to support this statement was placed before me by the
respondent’s
Persons of Interest Forum (“the Forum”),
which took the decision to terminate the applicant’s bank
accounts.
16.2
At par 38 of the answering affidavit, the
deponent, Mr Basson, the Head of Client Desirability Management:
Commercial Clients at
the respondent, reports that, after serious
consideration and many discussions during 2019 and 2020, a decision
was made by the
respondent’s Forum in 2020, that the respondent
would no longer bank entities within the Sekunjalo Group.
16.3
At par 65 of the answering affidavit, Mr
Basson advises that the decision by the respondent to terminate its
banking relationship
with the applicant was taken at the level of the
Forum.
16.4
At par 66 of the answering affidavit, Mr
Basson advises that the applicant’s request for an extension of
the termination date
was escalated to him, whereupon the request was
considered by senior members of the Forum and, after careful
consideration, the
decision to terminate the applicant’s
accounts was confirmed.
16.5
At par 131 of the answering affidavit, Mr
Basson advises that the decision to terminate the banking
relationship between the parties
was taken at the much more senior
level of the Forum, which is why the request for an extension was
escalated.
16.6
At par 132 of the answering affidavit, Mr
Basson advises that Mr Ries made certain statements to the applicant
without any knowledge
of the true facts and the reasons taken by the
Forum, at high level, to terminate the parties’ relationship.
16.7
At par 135 and 218 of the answering
affidavit, Mr Basson advises that he acted on the applicant’s
request for an extension
by escalating the matter to, and placing it
before, members of the Forum for consideration.
16.8
At par 162 of the answering affidavit, Mr
Basson relies on the decision of
Bredenkamp
v Standard Bank of South Africa Limited
2010 (4) SA 468
(SCA), for the contention that the conduct of a
hearing by the Forum prior to the termination of the applicant’s
accounts
is not required and would amount to an “
exercise
in futility
”.
16.9
At par 171 of the answering affidavit, Mr
Basson contends that the reason that the conduct of an enquiry or
hearing would be futile
is because it was the
perception
regarding the Sekunjalo Group that was harmful to the respondent’s
reputation, rather than the actual facts regarding that
Group of
companies.
16.10
At par 210 of the answering affidavit, Mr
Basson advises that the decision to terminate the parties’
relationship was taken
at a much higher level by the Forum.
16.11
At par 212 of the answering affidavit, Mr
Basson advises that it was appropriate to escalate the request for an
extension to the
relevant decision-makers, given that the decision
was taken by the Forum.
16.12
At par 106 of the replying affidavit, Mr
Moodaley advises that the applicant at no stage had access to the
Forum, nor was it privy
to its discussions.  The applicant does
not know who sits on the Forum.
16.13
At par 182 of the replying affidavit, Mr
Moodaley points out that the respondent does not advise who sits on
the Forum or what information
served before it when it took the
relevant decision.
16.14
From the above facts as found in the
papers, it is apparent that the applicant is correct in its
contention that there was no affidavit
by anyone who sits on the
Forum.
16.15
The available evidence is that (a) the
initial decision to terminate the accounts of the applicant was taken
at the level of the
Forum and (b) the request for an extension of the
time periods for the closing of the accounts was also refused at the
level of
the Forum.
16.16
It does not appear
from
the papers
that the applicant disputes
that the decisions were in fact
taken
at the level of the Forum.  The argument is that there was
no
evidence placed before me by a member of the Forum to support the
statement that “
a hearing in the form of a discussion
(between the applicant and the respondent) would not have had any
effect and would have been
an exercise in futility
”.
16.17
In
Bredenkamp and Others v Standard Bank of South Africa Ltd
2010 (4) SA 468
(SCA)
it was held at par [61]
that:
“
Furthermore, a
hearing in the form of a discussion would not have had any effect and
would have been an exercise in futility. Bredenkamp
presumably would
have told the bank that the listing was not justified, and he may
have produced evidence to that effect. But the
bank's cancellation
was not premised on the truth of the allegations underlying the
listing; it was based on the fact of the listing
and the possible
reputational and commercial consequences of the listing for the
bank.
”
16.18
I have perused that judgment and cannot
find any reference to the facts that the Supreme Court of Appeal had
before it which supported
the abovementioned finding, except the
excerpt cited above.
16.19
I am of the view that there seems to be
uncontested evidence that the Forum reconsidered the closing of the
accounts when the applicant
approached the respondent for an
extension of time, and that, again, the Forum refused to extend the
time periods or retain the
accounts.  It also appears
uncontested that the respondent sought to shut the accounts because
of the
reputation
of the Sekunjalo Group more broadly and not that of the applicant
and/or the truth of the allegations relating to either.
16.20
I am, therefore, fortified in my finding
that it did not matter what engagement the applicant had with the
respondent or the Forum
specifically, the outcome would have remained
unchanged.
16.21
The applicant, therefore, does not have a
reasonable prospect of success on this ground.
Based on allegations
of a material error of law
17
The Court misconstrued the argument of the applicant.  The Court
found
that the applicant relied, for its ground of review in Part B,
on its contractual rights and upon the rules of natural justice,
the
principle of legality, and the
Promotion of Administrative Justice
Act 3 of 2000
, when there is not a single reference in the
applicant’s papers to any ground in PAJA.  The Court found
that the applicant
submitted that the respondent's decision was
procedurally and substantively unfair and that, for this, it relied
on both an administrative
law review and a development of the common
law so that a party who is entitled to cancel a contract has to give
the other party
a hearing before cancellation, when the applicant
made no such argument.
17.1
I did not misconstrue the argument of the
applicant.
17.2
I found that:
17.2.1
“
The applicant relies, for its
grounds of review in Part B, on its contractual rights and upon the
rules of natural justice, the
principle of legality, and the
Promotion of Administrative Justice Act 3 of 2000
.
”
17.2.2
“
The applicant also submitted that the respondent’s
decision was procedurally and substantively unfair.  For this it
relies
on both an administrative law review and a development of the
common law so that a party who is entitled to cancel a contract has

to give the other party a hearing before cancellation.
”
17.2.3
“
I am therefore of the view that
PAJA does not find application...
”
17.3
The reason for the finding is to be found
in par 209.1 of the applicant’s replying affidavit, where it is
contended that:
“
FNB’s
decision is reviewable at least in terms of the common law and at
most, under the principle of legality or the auspices
of the
Promotion of Administrative Justice Act 3 of 2000
.  This will be
established further in legal submissions
”.
17.4
It is correct that the applicant did not
refer to PAJA in oral argument.
17.5
I have, elsewhere in the application for
leave to appeal, been accused of not dealing with all of the issues
before me either in
sufficient detail or at all.
17.6
In this instance, I simply dealt with an
allegation on the papers.
17.7
Given that the applicant is now of the view
that PAJA was irrelevant to its case, it and I are
ad
idem
, and nothing more turns on the
matter.
17.8
The applicant, therefore, does not have a
reasonable prospect of success on this ground.
18
Reliance was placed on
Multichoice Support Services (Pty)
Ltd v Calvin Electronics t/a Batavia Trading and Another
[2021]
JOL 51351
(SCA) in preference to
Trustees for the time being of
the Legacy Body Corporate v Bae Estates and Escapes (Pty) Ltd and
Another
[2022] 1 All SA 138
(SCA).
However,
no reasons were furnished as to why
Multichoice Support
Services
was preferable to
Bae Estates
, when the facts in
both are distinguishable.
18.1
At par 26 of my judgment, I found that that
the circumstances in this matter mirror those in the
Multichoice
Support Services
matter, whilst at par
28 of my judgment I found that the facts in
Bae
Estates
are too far removed from those
in the instant matter.
18.2
This is patently why I preferred
Multichoice Support Services
:
In the
Multichoice Support Services
matter, there was a contract between to private parties, which
contract was terminated.  In
Bae
Estates
, a body corporate of a housing
estate took a decision which prevented a
third
party
from operating in the housing
estate.  The facts of the matters are not equally
distinguishable, with those in
Multichoice
Support Services
being far more
apposite in this matter.
18.2.1
The applicant, therefore, does not have a
reasonable prospect of success on this ground.
19
The
Annex
Distribution
matters
19.1
It is contended by the applicant that:
19.1.1
this Court's judgment conflicts with the judgment of the High
Court (Gauteng Local Division, Johannesburg) in
Annex Distribution
(Pty) Limited and Others v Bank of Baroda
[2017] ZAGPPHC 639 (per
Makgoka J) and the judgment of the Equality Court in the matter of
Iqbal Surve and Others v Nedbank
EC02/2022;
19.1.2
the Court erred in her preference of the judgment of Fabricius
J in
Annex Distribution (Pty) Ltd and Others v Bank of Baroda
2018 (1) SA 256
(GP) over that of Makgoka J in in
Annex
Distribution (Pty) Limited and Others v Bank of Baroda
[2017]
ZAGPPHC 639; and
19.1.3
even if there were reasons to prefer the judgment of Fabricius
J, no such reasons are provided in the judgment.
19.2
It is correct that I preferred Fabricius
J’s judgment in
Annex Distribution
to the judgment of Makgoka J.  I thereupon found, at par 27 of
my judgment, that:
“
I
am of the view that the matter of Annex Distribution (Pty) Ltd and
others v Bank of Baroda
2018 (1) SA 256
(GP) (per Fabricius J) is
more carefully considered and more appropriate in the instant
matter.
”
19.3
I, thus, did provide reasons.  I
acknowledge that these reasons are rather bald.
19.4
I turn now to consider whether my
preference was erroneous.
19.5
The applicant contends as follows:
19.5.1
The case made out before Makgoka J was on
all fours with the applicant’s case, whereas the case before
Fabricius J differed
in material respects from the applicant’s
case; and
19.5.2
The issue in the matter before Fabricius J
differed markedly from the issues before Makgoka J: The matter before
Fabricius J was
an “interim-interim interdict”, whereas
before Makgoka J it was an interim interdict.
19.6
The respondent contends as follows:
19.6.1
In
the judgment of Fabricius J in
Annex Distribution
,
despite the application being one which was “interim-interim”
in nature, the court applied the same test as it would
have in an
application for interim relief; and
19.6.2
In
the
Annex Distribution
matter heard by Makgoka J
, the relief that was sought by the
applicant in Part B of the application was framed as follows: “
Within
15 days of the granting of this order, the applicants shall launch an
application against the respondent for the final relief
the
applicants deem appropriate concerning the validity or otherwise of
the termination notices dated 6 July 2017 issued by the

respondents.
”  The applicants therefore did not
confine the relief which they sought to a review application as they
have in this
case. Had they done so, such relief would not have been
competent for the same reasons as were later enunciated by the court
in
Multichoice Support Services
.
19.7
Upon analysis of the two respective
Annex
Distribution
judgments, the following
is apparent:
19.7.1
In respect of the Fabricius J decision:
(a)
The applicants’ case was based on the allegation that
insufficient
or unreasonable notice of termination of the
relationship with the respondent bank was given. There was, however,
no relief sought,
in whatever form, that related to the submission
made in court by the first to fourth applicants that the relevant
written agreements
between applicants and the bank, or certain
clauses thereof, were invalid for being contrary to public policy.
The applicants envisaged
during argument that the court in the main
hearing sometime in the future,
i.e.
not the court deciding
the interim interdict, would need to decide this alleged issue, which
might well also involve the hearing
of oral evidence. The applicants
conceded in that particular context, that that would mean that the
parties would live in a forced
relationship on uncertain terms.
Fabricius J indicated that he would not grant an order that would
have this effect for an indeterminate
period (see [2]).
(b)
Although the proceedings were of an interim-interim nature, this did
not
absolve the applicants from having to establish the traditional
requirements for an interim interdict, for if there was no merit
in
the ‘main’ application for an interim interdict, there
would be no purpose in granting the present one either. Our
law did
not recognise a cause of action for an ‘interim-interim’
interdict based on requirements other than the existing
common-law
ones (see [8] - [9], [43]).
(c)
The applicability of s 34 of the
Constitution was never properly raised by the applicants, and while
they had at least a
prima facie
right to be heard, it was subject to the requirements of substantive
and procedural law (see [12], [18], [25], [43]).
(d)
On whether or not the relevant applications
had a
prima facie
case, the court went into some detail.  The applicants’
position was taken from their founding affidavit and relayed
at
[10].  It seems to be remarkably similar to the instant set of
facts.  The court then examined what right was relied
upon (see
[10]) and what triable issues were raised for consideration in the
future interim interdict proceedings (see [11]).
These included
inconsistency within the actual notice and that the termination was
against public policy (see [12]).  The
court goes on to analyse
the applicants’ case, particularly in light of
Bredenkamp
and Others v Standard Bank of South Africa Ltd
2010 (4)
SA 468
(SCA) (see [12]).
(e)
The court summarised the position in
Bredenkamp
as follows: The banker–client relationship between the parties
was of a contractual nature and the bank’s decision
to
terminate it was governed by the ordinary rules of contract, which
allowed banks to terminate their contracts with clients on
proper
notice (see [22.4]). The bank was under no obligation to give
reasons: its motives were irrelevant, save perhaps where there
was
found to be an abuse of rights (see [22.2]). Banks were fully
entitled terminate on the ground that the client had a bad reputation

or because of business or reputational risks (see [22.5] and [22.6]).
(f)
Without unnecessarily copying and pasting
large portions of the judgment, the reasoning at par [25] to [28] is
also apposite.
(g)
In particularly, it is noteworthy that:
“
When the facts
are unclear, the interdicting court must weigh prospects,
probabilities and harm. But when the respondent, who is
sought to be
interdicted, has a killer law point, it is just and sensible for the
court to decide that point there and then. The
court is in effect
ruling that, whatever the apprehension of harm and the factual rights
and wrongs of the parties’ dispute,
an interdict can never be
granted because the applicant can never found an entitlement to it.
”
See
Trinity Asset Management (Pty) Ltd v Grindstone Investments 132
(Pty) Ltd
2018 (1) SA 94
(CC) at [91].
This sentiment also
explains why the applicant’s grounds that
·
“
This Court did not merely "peek" into the
arguments in Part B—it determined those arguments with
finality
”
; and
·
“
The Court erred in not considering whether the
dismissal of the applicant’s application would result in
irreparable harm and
whether the balance of convenience weighed in
favour of granting the interim interdict
”
lack any merit.
See also Fabricius J’s
analysis at the sub-par of [25], which also find application herein.
19.7.2
In respect of the Makgoka J decision:
(a)
The first 68 par deal with special pleas, a
summary of the evidence and contentions of the parties, and a brief
summary of the legal
principles.
(b)
From par [69], Makgoka J finds that:
“
[69] A closer
reading of
Bredenkamp
reveals two distinguishing features from
the present case. The first is that no public policy considerations
were involved in that
case, whereas they are squarely raised in the
present case.  In this regard, it is important to observe that
Harms DP (at
para 65) implied that a bank’s decision to close a
client’s account could well be subject to judicial scrutiny in
circumstances
where public policy considerations are involved. Here,
the applicants’ argument (insofar as the loan and overdraft
facilities
are concerned) is that the ‘closure-upon demand
clauses’ and their enforcement in the circumstances, are
against public
policy, thus bringing the bank’s conduct
squarely within the purview of judicial scrutiny envisaged by Harms
DP. The second
distinguishing feature is that the appellants in
Bredenkamp
had accepted that: (a) the agreement entitled
either party to terminate the relationship on reasonable notice for
any reason and
that this clause or the implied term did not offend
any constitutional value, and was accordingly valid; and (b) due
notice had
been given and that a reasonable time had been allowed.
The applicants in the present case dispute that reasonable notice has
been
given.
[70] A public policy
challenge is important, and where it is sought to be raised in
pending proceedings, a court should, in my view,
be slow to deny a
party that right at interim stage, except in the clearest of cases.
The applicants’ public policy argument
in respect of the loan
agreements may well be rejected by a court in the application for a
final relief. But can it be said at
this interim stage that their
argument is devoid of any merit whatsover? I do not think so.
[71] As observed by
Harms DP in
Bredenkamp
(para 38) our courts have always been
fully prepared to reassess public policy and declare contracts
invalid on that ground. He
went on to explain:
‘
Determining
whether or not an agreement was contrary to public policy requires a
balancing of competing values. That contractual
promises should be
kept is but one of the values. Reasonable people, irrespective of any
philosophical or political bent, might
disagree whether any
particular value judgment was ‘correct’, ie, more
acceptable. Didcott J, for one, believed in
relation to restraint of
trade cases that the sanctity of contract trumped freedom of trade
whereas AS Botha J... together with
Spoelstra AJ, thought otherwise
while Vermooten J agreed with Didcott J.’
[72] On the above
considerations, I conclude that the first to fourth applicants have
established a
prima facie
right to the relief envisaged in the
envisaged application for a final interdict.
”
(c)
Makgoka J then went on to discuss whether
or not the notice periods were reasonable, as well as the other
requirements for an interim
interdict.
19.7.3
The
fundamental difficulty with the reliance on Makgoka J’s
decision in
Annex Distribution
is that, amongst the relief sought by the applicant in that case, the
applicant sought,
in Part B of the application, that: “
Within
15 days of the granting of this order, the applicants shall launch an
application against the respondent for the final relief
the
applicants deem appropriate concerning the validity or otherwise of
the termination notices dated 6 July 2017 issued by the
respondents.
”
See [87].  This is broad enough to encompass
the public policy challenge to the contractual terms.
19.7.3.1
In the instant matter, the notice of motion seeks
that the
the applicant would launch an application “…
for such final relief the applicants deem appropriate concerning
the validity or otherwise of the termination notice
”
.
Had this been all, then perhaps Makgoka J’s decision might have
been preferable.  However, and this is the fundamental

difference, the applicant herein seeks, at par 8 of the Notice of
Motion, to confine its Part B application to a
review
.
19.7.4 The decision of
Makgoka J is, therefore, distinguishable.
19.7.5
It
may also be that the decision of Fabricius J is distinguishable on
the same basis; however, he took the trouble to analyse the
present
position of the courts in respect of the banker-client relationship.
19.8
In light of what is set out hereinabove, I
am unable to agree that (a) the case made out before Makgoka J was on
all fours with
the applicant’s case, whereas the case before
Fabricius J differed in material respects from the applicant’s
case;
and (b) the issue in the matter before Fabricius J differed
markedly from the issues before Makgoka J: The matter before
Fabricius
J was an “interim-interim interdict”, whereas
before Makgoka J it was an interim interdict.
19.9
Accordingly, I am of the opinion that it
cannot be said that I erred in preferring Fabricius J’s
decision in
Annex Distribution
.
19.10
As to whether or not the interdict relating
to the matter Equality Court can find application, I am of the view
that the basis of
the interdict was that the applicant had a
prima
facie
right based on the possibility of
success at the Equality Court.  That is not the situation here –
the Part B relief
herein stands no chance of success.
19.11
The applicant, therefore, does not have a
reasonable prospect of success on this ground.
20
The terms of the contract between the parties
20.1
The applicant contends that I erred in:
20.1.1
placing reliance on the implied terms argued by the respondent
but not pleaded in their answering affidavit;
20.1.2
finding that the respondent had a right under the common law
to terminate on reasonable notice—no such case was made out by

the respondent in its answering affidavit;
20.1.3
finding that the respondent had a contract,
which is valid
,
that gave it the right to cancel (on whichever party's version) and
that, therefore, the termination did not offend any identifiable

constitutional value and was not otherwise contrary to any other
public policy consideration.  In particular, the Court erred
in
holding the applicant to the contractual terms when the respondent
failed to provide evidence that the applicant had accepted
the terms
and conditions of the contract;
20.1.4
seeking to enforce a contractual provision which had not been
proven to have been accepted, on the strength of
Bredenkamp
in
the face of the applicant’s reliance on section 34 of the
Constitution;
20.2
The evidence on the papers:
20.2.1
Par 5 of the founding affidavit refers to a
banking relationship between the applicant and respondent and defines
the accounts as
those described in the termination letter.  The
termination letter refers to the relationship that it has with its
customers
being governed by the private law principles of contract,
in terms of which the respondent derives its right to terminate the
relationship.
20.2.2
Par 67 of the founding affidavit refers to
the fact that the applicant has had a banking relationship with the
respondent for over
ten years, and avers that it has, itself, acted
with utmost professionalism, good faith and business acumen.
20.2.3
At par 86 of the founding affidavit, the
applicant avers that it requested the respondent to provide copies of
the contractual instruments
upon which it was relying to terminate
the accounts.  It is alleged that this was necessary because the
applicant was unaware
of any terms or conditions to which it had
agreed which would entitle the respondent to terminate its banking
facilities summarily.
An email is attached wherein the
respondent advises that there is no customer agreement for the
applicant.
20.2.4
Par 91 through 95 of the founding affidavit
record further, failed, attempts to secure copies of the relevant
customer relationship
agreements between the parties.
20.2.5
At par 104 through 107 of the founding
affidavit, the applicant relies upon a provision of the Conduct
Standards for Banks 3 of
2020 which states that “
a
bank must … disclose to the financial customer the reasons for
the refusal, withdrawal, termination or closure
”.
It alleges that the failure by the respondent to provide reasons,
despite an undertaking to do so, is in breach of
the Conduct
Standards, and impugns the lawfulness of the decision.  It
further contends that the averment by the respondent
that it had
terminated the relationship because of “
associated
reputational and business risks
”
is vague and amounts to no explanation at all.
20.2.6
At par 113 of the founding affidavit, the
applicant repeats that it is not aware of any terms and/or conditions
that permit the
respondent to summarily terminate the relationship,
and that, to the best of the applicant’s knowledge, it never
agreed to
grant the respondent such rights.
20.2.7
It is noteworthy that the applicant, which
says of itself that it acted throughout with the utmost business
acumen, does not allege
that it did not agree to a contract with the
respondent, but just to one with no clause allowing summary
termination.  It
is strange that the applicant would not take
the court into its confidence regarding the nature of the contract
which it alleges
it, in fact, concluded.
20.2.8
At par 114 of the founding affidavit, the
applicant calls upon the respondent to disclose the precise basis of
the decision as well
as the contractual terms upon which it relies.
20.2.9
At par 132.1 of the founding affidavit, the
applicant contends that it has a
prima
facie
right to hold the respondent to
the terms of the contractual relationship between the parties, which
the applicant contends does
not entitle the respondent to terminate
the accounts summarily and in circumstances where the applicant was
unaware of the contract
which grants the respondent that right.
20.2.10
Here, again, it is obvious that the
applicant is relying on some or other contractual provision obviously
at odd with that relied
upon by the respondent; however, nowhere in
the papers does the applicant tell the court what it understands the
terms and conditions
of the contract to be.  This is either a
terrible oversight, which makes the court’s job almost
impossible, or an intentional
omission, which raises questions about
the veracity of the allegation.
20.2.11
At par 15 of the answering affidavit, the
respondent contends that the parties’ relationship is governed
by contract law,
and the respondent has acted in terms of its
contractual rights.
20.2.12
At par 31 of the answering affidavit, the
respondent identifies that the applicant holds six accounts with it
and, at par 32, the
respondent sets out that the relationship between
a bank and its customers is contractual in nature.
20.2.13
At par 33 of the answering affidavit, the
respondent avers that all bank accounts which are held by its
customers are governed by
its general terms and conditions, a copy of
which is provided.  The respondent points out that these terms
and conditions
are widely available, including on the respondent’s
website.
20.2.14
At par 34 of the answering affidavit, the
respondent goes on to cite clause 10 of the general terms and
conditions, which clause
apparently allows it to terminate
relationships with its customers based on reputational risk.
20.2.15
At par 50 and 54 of the answering
affidavit, the respondent alleges that the termination letter was
issued in accordance with the
general terms and conditions, which
terms afforded the respondent the right to terminate the relationship
between the parties.
20.2.16
At par 61 through 64 of the answering
affidavit, the respondent points out that, in correspondence by the
applicant seeking an extension
of the termination date, the applicant
did not dispute the entitlement of the respondent to close the
accounts.
20.2.17
At par 140 of the answering affidavit, the
respondent contends that the general terms and conditions govern all
customer accounts
whether or not there is a customer agreement in
place with a particular customer.
20.2.18
At various par in the remainder of the
answering affidavit, the respondent repeats that it relies upon the
general terms and conditions
to allow for the termination of the
agreements.
20.2.19
At par 24, 25, and 54, as well as at
several other par of the replying affidavit, the applicant denies
both being aware of and accepting
the general terms and conditions
attached to the answering affidavit.  At par 76, the applicant
goes on to aver that, for
this reason, the general terms and
conditions are not binding and enforceable.
20.2.20
At par 55 of the replying affidavit, the
applicant points out that there was a different customer agreement
between the parties
“
implemented
more recently
”.  It avers
that it has no knowledge of this.
20.2.21
At par 92 of the replying affidavit, the
applicant contends that it was not necessary in the letters
requesting an extension of
the termination to deal with the
respondent’s entitlement to terminate the contracts, as the
issue was pending litigation
rather than the entitlement to cancel.
20.2.22
At par 187 of the replying affidavit, the
applicant contends that the respondent has not provided evidence of
when the applicant
accepted the general terms and conditions.
20.2.23
At page 266 of the replying affidavit, the
applicant contends that, shortly before 8 April 2022, it searched the
respondent’s
website for the general terms and conditions and
was unable to find them.  A formal request was then sent to the
respondent.
20.3
My findings:
20.3.1
At par 10 of my judgment, I held that:
“
10.
The respondent relied on its private law contract right to terminate
the accounts.  There is, however,
some dispute between the
parties regarding the terms of the contracts between them:
10.1
The respondent put up a contract whose terms and conditions entitle
it terminate its relationship with a
customer if it has reason to
believe that a continued relationship will expose it to reputational
and business risk.  The
applicant contends that it did not
conclude that contract which entitled the respondent to terminate the
accounts unilaterally.
The respondent contends, only in
argument and not in the answering affidavit, that, if the terms of
the contract are not as it
alleges, there is, nevertheless, an
implied term that the contract may be terminated on reasonable
notice.
10.2
The applicant, on the other hand, contends that it is an implied term
that a bank exercising a right to terminate
accounts had to act
reasonably and in good faith, which included the requirement that the
accounts only be terminated on good cause
and after the applicant was
able to make representations.  Where termination was
disproportionate to some perceived default,
the termination would be
in breach of public policy and thus unenforceable.
”
20.3.2
At par 21 of my judgment, I held that:
“
Fundamentally, both parties rely
on a contractual provision, express or implied, that governs the
termination of the contract.
Over and above this, the applicant
contends that there the respondent is obliged to apply the rules of
natural justice to the termination.
This is so, it contends,
because of the unique position of banks in relation to their
clients.
”
20.3.3
At par 24.7 of the judgment, I held that:
“
This leaves for consideration the question whether
the respondent had (in terms of the relief presently sought) good
cause to close
the accounts. The respondent had a contract, which is
valid, that gave it the right to cancel (on whichever party’s
version).
”
20.3.4
At par 26 of the judgment, I held that:
“
Here there is a dispute about the
exact contractual term relevant to the termination of the accounts,
as well as the exact content,
interpretation, and enforcement of that
term.  Part B is, after all, expressly aimed at assessing the
validity of the termination
notice.  This, read together with
the principles enunciated in Bredenkamp, clearly point to the fact
that this type of matter
relates to the interpretation of contracts,
rather than some or other purported exercise of public power or
something equal to
it.
”
20.4
The applicant’s contentions:
20.4.1
The applicant contends that I found that
the respondent had, in fact, proved the terms of the contract upon
which it relies –
either as that found in the general terms and
conditions, as pleaded in the papers, or as an implied term, raised
for the first
time in argument.
20.4.2
The applicant contends, further, that the
respondent has not proven that the general terms and conditions were
agreed to by the
applicant.
20.4.3
The applicant contends, additionally, that
the respondent is not entitled to rely on any implied term unless it
is specifically
pleaded, and for this provides authority.
20.5
The respondent’s contentions:
20.5.1 The respondent
submitted that the applicant did not contend that the relationship
between it and the respondent (whatever
its terms) was not based in
contract. The applicant also did not contend that the respondent did
not have the right to terminate
its relationship with the applicant
and to close the bank accounts. It was furthermore not the
applicant’s case that the
respondent was compelled to be
contractually bound to the applicant and to provide it with banking
services in perpetuity. Had
this been the case for the applicant
(which it was not), such a case would have run contrary to the
accepted jurisprudence in relation
to the contractual nature of the
relationship between a banker and its clients.
20.5.2 The respondent
contended that it was the case for the applicant that, in exercising
its right to terminate its relationship
with the applicant and to
close the bank accounts, the respondent failed to furnish reasons to
the applicant for the closure of
the bank accounts and failed to
comply with the principles of natural justice and
audi alteram
partem
when it took the decision to terminate its relationship
with the applicant and to close the bank accounts. The applicant
contended
that, as a result, the closure of the bank accounts by the
respondent was contrary to public policy.
20.5.3 The respondent
submitted that I was correct in concluding that, at the heart of it,
both parties relied upon a valid contractual
provision, express or
implied, that governed the termination of the contract between them.
What was in dispute between the parties
was the content of that
contractual provision and the terms upon which termination of the
contract between the applicant and the
respondent ought to have taken
place. I identified that the applicant contended that the respondent
was obliged to apply the rules
of natural justice to such termination
because of the unique position of banks in relation to their clients.
20.5.4 The respondent
contends, therefore, that I made no error in determining that the
applicant accepted that in terms of the
valid agreement between them,
the respondent was entitled to terminate its agreement with the
applicant but that the applicant
contended that the respondent could
only do so on good cause and having complied with the principle of
audi alteram partem
.
20.5.5 The respondent
contends, further, that I correctly noted that, for the applicant to
contend that the respondent could only
terminate its (undisputed)
contractual relationship with the respondent after it had complied
with the principles of natural justice
and afforded the applicant the
right to make representations, would require the existence of a tacit
term (presumably in the absence
of an express or implied term) or the
development of the common law.
20.5.6 The respondent
contends, additionally, that the Learned Judge went further to assume
in favour of the applicant that there
was in fact such a tacit term
which required the respondent only to terminate its contractual
relationship with the applicant if
it had good cause to do so and
after having complied with the rules of natural justice.
However, even having made these findings
and assumptions in favour of
the applicant, I correctly found that irrespective of content of the
express, implied or tacit terms
of the contract between the applicant
and the respondent (on which I did not rule conclusively), this made
no difference to my
finding that the correct remedy which ought to
have been followed by the applicant, if it was of the view that its
contractual
rights (including the possible application of the rules
of natural justice and the principles of
audi alteram partem
)
had been infringed, lay in contract rather than in review and that
there was therefore no basis for the relief sought by the applicant

in Part B and accordingly no basis for the Part A relief
.
20.5.7
It was also contended that it was also not
necessary for me to rule conclusively on exactly which terms governed
the contractual
relationship between the applicant and the respondent
and the termination thereof and, therefore, whether or not the
respondent
had pleaded an implied term as an alternative to the
express terms upon which it relied, is not relevant and takes the
matter no
further because, at the heart of it, there is no basis for
the relief which the applicant seeks in Part B and therefore no basis

for the relief that it seeks in Part A
pendente
lite
.
20.6
Applicable legal principles:
20.6.1
Fundamentally,
in assessing the nature and terms of the contract, I must, in an
application for interim relief, consider the facts
as set out by the
applicant, together with those set out by the respondent, which the
applicant cannot dispute, and whether the
applicant would, on these
facts, obtain final relief in the review application.
[16]
The
facts set up in contradiction by the respondent should then be
considered. If serious doubt is thrown upon the case of the
applicant, he could not succeed in obtaining temporary relief.
[17]
20.7
The respondent is correct when it avers
that it was not necessary for me to decide on which version of the
agreement was proved.
Therefore, and despite other references
in my judgment to the contract between the parties, I specifically
held that “
There is, however, some
dispute between the parties regarding the terms of the contracts
between them
” and “
Here
there is a dispute about the exact contractual term relevant to the
termination of the accounts, as well as the exact content,

interpretation, and enforcement of that term.
”
20.8
Even if I exclude the respondent’s
allegations regarding a contract between the parties, what remains is
an allegation by
the applicant itself that there was a banking
relationship between the parties.  The corollary of this
statement is that there
must have been a contract between them.
Given that the applicant is somewhat coy regarding the exact terms of
this contract,
I am left either to impute the usual and implied terms
for banker-client relationships, or to not try to guess at all.
20.9
I chose not to guess at all.  Both
parties have framed the relationship in terms of contract; this
includes the applicant.
The applicant seeks to impute certain
additional obligations over and above those contended for by the
respondent.  Additionally,
the applicant’s counsel in
argument expressly disavowed any administrative law basis.  All
that remains upon which to
base the relationship is contract law.
And all that remains to be argued in the main review application
would be whether
or not that contractual relationship would (a) be
open to review and (b) whether the conduct of the respondent (in
terms of whichever
contract is thereupon proved – bearing in
mind the usual test regarding disputes of fact in applications for
final relief)
met the appropriate standards.  This is dealt with
hereinbelow.
20.10
The applicant, therefore, does not have a
reasonable prospect of success on this ground.
21
The Court erred by dismissing the application on the basis
that the applicant chose the incorrect cause of action; it is trite
that
a court cannot dismiss an application because it prefers a
different cause of action to the one chosen by the parties – it

must decide the application before it, and not the one it prefers.
21.1
The evidence on the papers:
21.1.1
It is apparent from the notice of motion
that the applicant is seeking interim relief pending the finalisation
of Part B of the
notice of motion.  Part B of the notice of
motion is explicitly framed as a review and relies on the relevant
Uniform Rule
in that regard.
21.1.2
In par 5 of the founding affidavit, the
applicant defines the matter as:
“
This
is an urgent application in which Talhado seeks to interdict First
National Bank (“FNB”) from closing its bank
accounts
pending the outcome of an application for final relief to review and
set aside the decision of FNB to terminate the accounts.
”
21.1.3
The reference to a review is again made at
par 7, 12, 103, 108 to 112, and 129 of the founding affidavit.
21.1.4
The applicant also uses language supportive
of the reliance on review, rather than contractual relief,
inter
alia
, in the following par of the
founding affidavit:
(a)
Lack of notice (par 6, 71, 76 and 111).
(b)
Lack of opportunity to make representations
(par 6, 103, 108, 109, and 110).
(c)
Seeking to declare conduct unlawful and
having it set aside (par 12).
(d)
The decision defies logic (par 67)
(e)
Absence of reasons (par 69, 78, 79, and 103
to 107).
(f)
Termination is contrary to public policy
(par 103, 117, 119 and 121).
(g)
Abuse of power (par 120).
(h)
Requirement to follow the rules of natural
justice (in addition to what is set out hereinabove, par 110).
(i)
That the decision is flawed, irrational,
and arbitrary (par 112 and 126).
(j)
The failure to act reasonably and in good
faith (par 122
et seq
).
21.2
My findings:
21.2.1
In par 1 of the judgment, I held that:
“
This is an urgent application
wherein the applicant company seeks to interdict the respondent bank
from closing its bank accounts
pending the outcome of a review of the
respondent bank’s decision to close those accounts.
”
21.2.2
In par 5 of the judgment, I held that:
“
Part
B of the application seeks the following relief, inter alia:
‘
7.
The applicant shall within 10 (ten) days of the grant of the Order
sought under Part
A, launch the review application against the
respondent for such final relief as the applicant deems appropriate
concerning the
validity or otherwise of the termination notice,
failing which the relief forming the subject of Part A set out in
prayers 2.1
and 2.2 above shall lapse.’”
21.2.3
At par 15 of the judgment, I held that:
“
The applicant relies, for its
grounds of review in Part B, on its contractual rights and upon the
rules of natural justice, the
principle of legality, and the
Promotion of Administrative Justice Act 3 of 2000
.
”
21.2.4
At par 16 of the judgment, I held that:
“
Fundamentally, the question that
must be answered in this matter is whether or not the applicant is
entitled to review the decision
of the respondent to terminate its
bank accounts.  All relief is premised on this contention.
”
21.2.5
At
par 18 of the judgment, I held that: “
A
prima facie right may be established by demonstrating prospects of
success on review.
[18]
The grounds of review must be strong and likely to succeed.
[19]
This means that where there are no prospects of success on review,
the application for an interim interdict must fail.
[20]
”
21.2.6
At par 24.9 of the judgment, and after considering the
appropriateness of the claim for review, I held that: “
Fundamentally,
therefore, if there is a remedy for the applicant, it would not be a
review, but a contractual claim for breach of
contract.
”
21.3
The applicant’s contentions:
21.3.1
The applicant contends that I cannot
dismiss an application because I prefer a cause of action different
from the parties –
I must decide the applications before me.
21.3.2
For
this contention the applicant relies upon authority,
[21]
which states that it is for the parties to define the issues in their
pleadings or affidavits, and the court must adjudicate upon
the
issues as defined.
21.4
The respondent’s contentions:
21.4.1 The respondent
contends that this is not a case where I dismissed the application
because I preferred a different cause of
action. To the contrary, it
is alleged, I assessed the legitimacy of the cause of action which
the applicant itself chose (namely
an application to review the
decision of the respondent) and found that there was no legal basis
for such cause of action. As a
result, the Learned Judge correctly
dismissed the application.
21.5
Applicable legal principles:
21.5.1
These are cited by the applicant, and I
have referred to them above.
21.6
I
was called upon to decide whether or not the applicant was entitled
to an urgent interim interdict.  In order to do so, I
was
required to determine whether the applicant had a
prima
facie
right deserving of protection.  A
prima
facie
right may be established by demonstrating prospects of success on
review.
[22]
The grounds
of review must be strong and likely to succeed.
[23]
This means that where there are no prospects of success on review,
the application for an interim interdict must fail.
[24]
21.7
The reason that I was compelled to follow
this analysis of the prospects of success on review, was because the
applicant itself
had defined its Part B relief as a review.
Because of this, I had to assess whether or not there was any chance
of the review
succeeding.  Whether or not I would have sought
different relief in Part B is neither here nor there.  What is
important
is whether or not the conduct of the respondent in
terminating the relationship between the parties was, in fact,
reviewable.
21.8
Any suggestion of a more preferable Part B
only arose because of the analysis of the current law applicable to
the relationship
between banker and client.
21.9
The applicant, therefore, does not have a
reasonable prospect of success on this ground.
22
I find myself compelled to state that it
seems to me that what has been dealt with until now has been buckshot
fired from a shotgun
in the hopes that some of it will stick.
The real issue is the correctness of my findings relating to the
reviewability of
the termination of the parties’ relationship.
I turn now to the grounds raised by the applicant relating to that
issue.
23
The
Jockey
Club
cases
23.1
It is contended that I erred in finding that the Jockey Club
cases apply in
a case of the abuse by the respondent of private power that
approximates public power
, and that, in this sense, the action of
the respondent does not fall to be reviewed at the common law (as in
the Jockey Club cases).
23.1.1
In this regard, it is contended that the Jockey Club cases
were all related to contractual disputes where a decision to
terminate
a contract was the subject of review and the courts in
those cases held that the applicants in those cases were entitled to
review,
in terms of the common law, where the contract and the nature
of the relationship between the parties required the rules of natural

justice to apply to that contract – that is, when a contract
sets up a 'tribunal' or 'adjudicating body' or it postulates
an
enquiry; and
23.2
It is then contended that I erred in finding that the Forum
established by the respondent was not such a tribunal or adjudicating

body.
23.3
The legal position regarding the
Jockey
Club
cases:
23.3.1
My findings:
(a)
At
par 24.4, I found that:
“
The
impact on the applicants was not caused by the decision to close the
accounts; it was caused by the association with the Sekunjalo
Group.
It is therefore not a case of the abuse by the respondent of private
power that approximates public power.  In this
sense, the action
of the respondent does not fall to be reviewed at common law (as in
the Jockey Club cases
[25]
).
”
(b)
At par 26, I found that: “…
this type of matter relates to the
interpretation of contracts, rather than some or other purported
exercise of public power or
something equal to it.  I am
therefore of the view that PAJA does not find application, nor does
any common law right of review,
whether in terms of the Jockey Club
cases or based upon the principle of legality.
”
23.3.2
Applicant’s contentions:
(a)
The applicant contends that the court’s
review powers do not turn on whether or not the power in question is
a “
private power that approximates
public power
”.
(b)
Rather, it is contended, all of the
Jockey
Club
cases related to contractual
disputes where a decision to terminate a contract was the subject of
review.  The courts held
that they were entitled to review
decisions where the contract and the nature of the relationship
between the parties required
that the rules of natural justice apply.
(c)
The
Jockey
Club
cases held that the rules of
natural justice apply where the contract sets up a ‘tribunal’
or ‘adjudicating body’
or it postulates and enquiry.
In this regard, the applicant relies on
Thandroyen v Sister
Anunicia and Another
1959 (4) SA 632
(N) and
Dansell v The
Southern Life Association Limited
(1992) 13 ILJ 533 (C).
(d)
In
Bae Estates
it was held that the name of the body is irrelevant.  Rather,
what is important is the effect of the decision and its implications

for the subject against whom it was directed.
23.3.3
Respondent’s contentions:
(a)
The
applicant contends that the application of the rules of natural
justice in contract are a “
long
standing common-law principle of law
”.
However, the applicant is immediately forced to concede that this
broad statement must be limited and that the principles
of natural
justice will only apply where the contract has “
set
up something of the nature of a tribunal (which may be a tribunal of
one) to decide matters affecting the parties.
”
[26]
In other words it is only where the contract is construed as setting
up a ‘tribunal’ or ‘adjudicating body’
or as
‘postulating an enquiry’ that the rules of natural
justice apply.
[27]
(b)
Within this context, the applicant attempts to cast the
respondent’s Forum, as a ‘tribunal’ or
‘adjudicating
body’ such that the rules of natural
justice apply to decisions made by the respondent.  This attempt
by the applicant
to cast the respondent’s Forum is incorrect
and is an artificial attempt to create a right of review within the
context of
the cancellation of a contractual relationship when the
Supreme Court of Appeal has held that no such right of review exists.
This
is not a basis for this Court to grant the applicant leave to
appeal against the judgment.
(c)
It
is precisely because the so-called
Jockey
Club
cases concerned the termination of contracts in circumstances where
the contracts had set up something in the nature of a tribunal
to
decide matters affecting parties
[28]
that in those cases there was a requirement for the application of
the rules of natural justice and, in circumstances where those
rules
were not complied with, a common law right of review. The
Jockey
Club
cases are clearly distinguishable from the facts of this case and at
odds with the principles established in
Multichoice
Support Services
.
23.3.4
The legal position:
(a)
I am prepared to concede that, in regards
to common law reviews generally, the court’s review powers do
not turn on whether
or not the power in question is a “
private
power that approximates public power
”.
(b)
The phrase “
private
power that approximates public power”
was used in the
Bredenkamp
decision, about which more below, with reference to an article by
Dikgang Moseneke “Transformative constitutionalism: Its
implications for the law of contract” 20 (2009)
Stell LR
3
at 11
.
(c)
It was the decision in
Bredenkamp
that held that a bank
terminating its
agreements with its clients
would have
to have exercised a
private power that
approximates public power
, in order for
an attack on the
decision to terminate
to succeed.
(d)
Without citing every one of a long line of
cases, certain examples may be given of the nature of ‘tribunals’
set up
in the
Jockey Club
cases:
(e)
In
Turner v Jockey Club of South
Africa
[1974] 4 All SA 52
(A) at 54; 1974 (3) SA 633
(A) at 645, it is held that
“
It is clear, I
think, that the reference to “the nature of the tribunal”,
in its context in the passage cited, is
a reference to the
nature of the tribunal’s constitution
, i.e.
according to
whether it was created by statute or by
contract
.
” [own emphasis]
(f)
In
Theron en
Andere v Ring van Wellington van die NG Sendingkerk in Suid-Afrika en
Andere
[1976] 2 All SA 286
(A) at 301
and 319;
1976 (2) SA 1 (A) at 23 and 41, it is
held that:
“
Vanweë die
invloed van die Engelse reg op ons regspraak t.o.v. hierdie hele
terrein, is dit insiggewend hoe die hedendaagse
Engelse Hof die
beslissing van ’n huishoudelike tribunaal,
deur
ooreenkoms geskep
, benader. …DENNING, L.J., sê
in sy uitspraak dat, hoewel partye
by ooreenkoms
huishoudelike tribunale kan skep om hulle geskille op te los
,
…”
[own emphasis]
(g)
In
Thandroyen v Sister Anunicia and Another
1959 (4) SA
632
(N) at 639F-640A,
it was held that:
“
The principles
of natural justice will apply only if the parties have imported them
into their contract. Speaking generally they
will not be held to have
done so unless
the contract has set up something in the
nature of a tribunal (which may be a tribunal of one) to decide
matters affecting the parties
. Such a tribunal will be
bound by the principles of natural justice, unless indeed the parties
have in their contract provided
otherwise, as they are perfectly
entitled to do. But if the contract sets up no such tribunal, there
will be no room for the application
of the principles of natural
justice, whether on the ground of public policy or otherwise.
”
[own emphasis].
(h)
It is, therefore, apparent to me that the
line of
Jockey Club
cases relates primarily to situations where the contract between the
parties has set up a tribunal (of whatever nature) to resolve

disputes between the parties.
(i)
Accordingly, the applicant is not correct
when it contends that the
Jockey Club
cases related to all contractual disputes where a decision was taken
to terminate a contract; the ‘decision’ in these
cases
were taken by tribunals
created by the
agreement between the parties
.
23.3.5
Bae Estates
:
(a)
I have already dealt with why the decision
on
Bae Estates
is not preferred as decisive in this matter.
23.3.6
The position of the Forum:
(a)
The evidence relating to the Forum is as
follows:
(i)
At par 34 of the answering affidavit, the respondent cites clause 10
of the
terms and conditions relied upon it.  The clause provides
that the respondent may terminate the relationship with a client
if
it has reason to believe that a continued relationship with the
client will expose it to reputational or business risk.

The remainder of the terms and conditions do not refer to the Forum.
(ii)
At par 38 of the answering affidavit, the respondent refers to the
Forum as the entity
within it which made the decision no longer to
bank with entities within the Sekunjalo Group, including the
applicant.
(iii)
At par 65, 66, 210, 213 and 218 of the answering affidavit, the
respondent again refers
to the Forum as the level at which the
decisions were taken to terminate the relationship with the applicant
and not to grant an
extension to the termination date.
(iv)
The contractual basis of the relationship between the parties has,
throughout, been disputed
by the applicant.  This is evident
from,
inter alia
, par 54, 55, 162, and 187 of the replying
affidavit.
(v)
At par 59 and 106 of the replying affidavit, the applicant notes, or
otherwise refers
to, the fact that it was the Forum that made the
relevant decisions.
(vi)
The applicant never puts up the agreement(s) which it alleges forms
the basis of the relationship
between the parties.
(b)
Given what is set out above, there is no
evidence
before me that Forum was (a) created by contract between the parties,
and (b) to resolve disputes between them.
(c)
I was therefore unable to find that the
Forum was a ‘tribunal’ as required by the Jockey Club
cases.
23.3.7
Conclusion
(a)
The applicant, therefore, and without more,
does not have a reasonable prospect of success on this ground.
24
The Court erred by failing to make any finding in respect of
the applicant’s argument that the effect of the Banks Code is

to subject the respondent’s decision to judicial review.
24.1
The applicant contends that I am obliged to
decide all the issues before me, and not just the issues I consider
to be dispositive.
In support of this, the applicant relies on
Spilhaus Property Holdings (Pty) Ltd and
Others v MTN and Another
2019 (4) SA
406
(CC) at [44] – [45].
24.2
The respondent contends that the Conduct Standard for Banks 3 of 2020
(“the Bank Code”)
was introduced after the decision of
the Supreme Court of Appeal in
Bredenkamp
.  The Bank Code
does not require banks to apply the principles of natural justice and
audi alteram partem
in making a decision to terminate their
relationships with customers and to close bank accounts. All that is
required by the Bank
Code is for banks to provide reasons for the
termination of banking services. Had the legislature required banks
to afford customers
a hearing or a right to make representations
prior to the closure of their accounts, it would no doubt have
included such provisions
in the Bank Code in 2020.
24.3
The respondent further contends that it has in any event provided the
applicant with reasons
for the closure of its accounts in compliance
with the provisions of the Bank Code. That reason is that its
association with entities
within the Sekunjalo Group was identified
as a source of reputational risk to the respondent. As the Supreme
Court of Appeal held
in
Bredenkamp
, the respondent is not
required to interrogate negative allegations against entities within
the Sekunjalo Group. It is entitled
to assume that they are in fact
untrue. The truth or otherwise of the allegations is not the test for
a bank’s ability to
close the bank accounts of a customer based
on the reputational risk that the relationship poses to the bank.
24.4
It is correct that I
failed to make
any finding in respect of the applicant’s argument that the
effect of the Bank Code is to subject the respondent’s
decision
to judicial review.
24.5
If one has regard to the Bank Code, the
following is apparent:
“…
“
retail
financial customer” means a financial customer that is –
(a)
a natural person; or
(b)
a
juristic person, whose asset value or annual turnover is less than
[R
2 million]
[29]
…
2.
Application and general obligations
(1)
Subject to subsection (3), this Conduct Standard is applicable to
banks in relation to their
provision of financial products and
financial services.
…
(4)
A bank must conduct its business in a manner that prioritises the
fair treatment of financial
customers.
(5)
The fair treatment of financial customers by banks includes achieving
at least the following
outcomes:
(a)
Financial customers can be confident that they are dealing with a
bank where the fair treatment
of financial customers is central to
the bank’s culture;
…
(c)
financial customers are given clear information and are kept
appropriately informed
before, during and after the time of entering
into a contract in respect of a financial product or financial
service offered or
provided by a bank;
…
3.
Culture and governance
(1)
A bank must at all times –
…
(b)
act … fairly … ;
…
(f)
conduct its business transparently and with due regard to the
information needs
of its financial customers.
…
9.
… withdrawal or closure of financial products or financial
services by
the bank
…
(2)
Subject to subsection (4), a bank may not
[withdraw,
terminate or close a financial product or financial service in
respect of one or more of its financial customers]
without
providing reasonable prior notice of the withdrawal, termination or
closure to the financial customer.
(3)
Subject to subsection (4), a bank must, when it
[withdraws,
terminates or closes a financial product or financial service in
respect of one or more of its financial customers]
,
disclose to the financial customer the reasons for the …
withdrawal, termination or closure.
…”
24.6
The applicant, at par 104 through 107 of
the founding affidavit, relies on section 9(3) of the Banks Code, to
wit, the requirement
to provide reasons for the termination of the
relationship between the parties.  The applicant contends that
the respondent
advising that the relationship was terminated because
of “
associated reputational and
business risks
” does not meet the
standard prescribed by the Banks Code.
24.7
The respondent, at par 159 of the answering
affidavit, simply contends that the phrase used was sufficient to
meet the requirements
of the Banks Code.
24.8
In
order to determine whether or not the reasons are adequate, given
sections 2 and 3 of the Banks Code, one would need to consider
a
variety of factors, including, but not limited to: the factual
context of the decision, the nature and complexity of the decision,

the nature of the proceedings leading up to the decision and the
nature of the functionary taking the decision. Depending on the

circumstances, the reasons need not always be ‘full written
reasons’; the ‘briefest
pro
forma
reasons
may suffice’ . . . Whether brief or lengthy, reasons must, if
they are read in their factual context, be intelligible
and
informative. They must be informative in the sense that they convey
why the decision–maker thinks (or collectively think)
that the
decision is justified.
[30]
These reasons need not be intelligible and informative with the
benefit of hindsight, however. They must from the outset
be
intelligible and informative to the reasonable reader thereof who has
knowledge of the context of the decision.  This is,
therefore,
an objective test.
[31]
24.9
It appears to me, from the content of the
Banks Code, that it imports certain terms into the contracts between
the parties.
Accordingly, an application thereof may have an
impact on the outcome of the matter.
24.10
I ought, therefore, to have considered its
application.
24.11
I deal with the effect of the Bank Code
below.
25
The
Beadica
matter:
25.1
It is contended that I erred:
25.1.1
in failing to find that the judgment in
Beadica 231 CC and
Others v Trustees, Oregon Trust and Others
2020 (5) SA 247
(CC)
governed the matter before it, and to thereupon apply the principles
enunciated therein to the instant matter.
25.1.2
in failing to apply binding precedent when she held that: "
The
applicant also seeks to rely on Beadica 231 CC and Others v Trustees,
Oregon Trust and Others
2020 (5) SA 247
(CC). … I am of the
view that the facts in those matters are too far removed from those
in the instant matter so as to make
them of little assistance.
"
25.1.3
in simply dismissing the force of
Beadica
without
engaging with the principles articulated therein.
25.2
The applicant contends that:
25.2.1
In
Beadica
,
the Constitutional Court pointed out that
Bredenkamp
and his affected entities never suggested that any constitutional
value was implicated by the bank’s conduct.  If that
is
done, then the court should determine whether the limitation of the
right is fair and reasonable.
25.2.2
In this matter, the applicant relied on
section 34 of the Constitution as a constitutional value implicated
by the conduct of the
respondent.  In particular, the applicant
contends that it relied on section 34 as guaranteeing it a right to
the fundamental
rules of natural justice.
25.2.3
The applicant cannot be held to the term
entitling the respondent to terminate the relationship, because the
respondent did not
prove that the applicant agreed to the term.
25.2.4
Further, the term entitling the respondent
to terminate the relationship is not valid because it is against
public policy.
25.3
The respondent contends that:
25.3.1
Section 34 of the Constitution guarantees every person the
right to have a dispute which is capable of resolution by the
application
of law decided in a fair public hearing before a court
or, where appropriate, another appropriate tribunal. Section 34 of
the Constitution
does not guarantee a private party to a contract the
right to the application of the rules of natural justice or
audi
alteram partem
in respect of a decision by another private party
to terminate that contract.
25.3.2
My judgment does not deprive the applicant of its
Constitutional rights in terms of section 34.  I simply require
the applicant
to follow a cause of action which is recognised as
being capable of resolution by the application of law.
25.3.3
For the reasons set out above, in the circumstances of this
case, and as has been held by the Supreme Court of Appeal in
Multichoice Support Services
this does not include a review of
a decision by a private party to terminate an agreement with another
private party.
25.3.4
That the Courts have recognised the importance of contractual
terms having regard to considerations of public policy as infused by

Constitutional values is relevant to contractual remedies which the
applicant might have and does not give rise to an independent
right
of review on the part of the applicant.
25.3.5
The argument by the applicant accordingly takes the matter no
further and does not give rise to an independent basis upon which to

review the decision of the respondent.
25.4
At par 28 of the judgment, I held that “
The
applicant also seeks to rely on … Beadica 231 CC and Others v
Trustees, Oregon Trust and Others
2020 (5) SA 247
(CC).
However, I am of the view that the facts in those matters are too far
removed from those in the instant matter so as
to make them of little
assistance
”.
25.5
The applicant’s case on the papers:
25.5.1
I have already set out the portions of the
papers which define the applicant’s cause of action in Part B
of the Notice of
Motion as a
review
.
25.5.2
At
par 103 of the founding affidavit, the grounds of the review are said
to include (a) the failure to furnish reasons,
[32]
(b) the failure to apply the rules of natural justice before
termination,
[33]
and (c) that
the closure was contrary to public policy.
[34]
25.5.3
At par 127 through 135, the applicant
adverts to section 34 of the Constitution which entitles the
applicant to have its case ventilated
before the courts.
Section 34 also guarantees the rules of natural justice.
25.5.4
Whilst the applicant reserved “
the
right to supplement its case in relation to the relief sought
”
under Part B, it did not appear to accept that there may be a need to
amend the form of that relief.
25.6
Relevance of
Beadica 231 CC and
Others v Trustees, Oregon Trust and Others
2020 (5) SA 247
(CC)
to the instant matter:
25.6.1
The Constitutional Court defined the matter
before it as follows:
“
[1] This
application concerns
the proper constitutional approach to
the judicial enforcement of contractual terms
and, in
particular, the public policy grounds upon which a court may refuse
to enforce these terms. The extent to which a court
may refuse to
enforce valid contractual terms on the basis that it considers that
enforcement would be unfair, unreasonable or
unduly harsh is a
burning issue in the law of contract in our new constitutional era.
”
[own emphasis]
25.6.2
The
court then went on to hold that:
[35]
“
The impact of
the Constitution on the enforcement of contractual terms through the
determination of public policy was profound.
As was stated in
Barkhuizen, it required that courts 'employ [the Constitution and]
its values to achieve a balance that strikes
down the unacceptable
excesses of freedom of contract, while seeking to permit individuals
the dignity and autonomy of regulating
their own lives'. Public
policy imported values of fairness, reasonableness and justice, and
ubuntu, which encompassed these values,
was now also recognised as a
constitutional value, inspiring our constitutional compact, which in
turn informed public policy.
Many established doctrines of contract
law are themselves the embodiment of these values, such as those
concerning fraud, duress,
misrepresentation, estoppel, implied terms
and rectification. (See [71] – [73.)
While abstract values
provide a normative basis for the development of new doctrines,
prudent and disciplined reasoning was required
to ensure certainty of
the law and respect for the doctrine of separation of powers. The
scope for the development of new common-law
rules in our law of
contract was broad: constitutional values had an essential role to
play in the development of constitutionally
infused common-law
doctrines. In developing the common law, courts must develop clear
and ascertainable rules and doctrines ensuring
that our law of
contract was substantively fair, whilst at the same time providing
predictable outcomes for contracting parties.
This was what the rule
of law, a foundational constitutional value, required. (See [76],
[78] and [81].)
A court may however
not refuse to enforce contractual terms on the basis that the
enforcement would, in its subjective view, be
unfair, unreasonable or
unduly harsh. These abstract values have not been accorded
autonomous, self-standing status as contractual
requirements. Their
application was mediated through the rules of contract law, including
the rule that a court may not enforce
contractual terms where the
term or its enforcement would be contrary to public policy. It was
only where a contractual term, or
its enforcement, was so unfair,
unreasonable or unjust that it was contrary to public policy that a
court may refuse to enforce
it. (See [80].)
”
25.7
I accept that public policy plays an
important role in determining
the
validity and enforceability of terms of a contract
.
25.8
In that sense,
Beadica
,
very definitely would apply to the matter, if the applicant had
chosen a contractual cause of action for Part B of the Notice
of
Motion.  It did not.  I have dealt with this previously
herein.
25.9
Additionally, and insofar as the applicant
contends that it relies on section 34 of the Constitution as
guaranteeing to it the application
of the rules of natural justice
by
the Forum, rather than at the time of adjudication by a court
,
section 34 provides that:
“
Everyone has
the right to have any dispute that can be resolved by the application
of law decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.
”
25.10
The
provision takes account of the need for specialist tribunals. An
example of this would be the Competition Tribunal, established
in
terms of the
Competition Act 89 of 1998
to adjudicate on a range of
matters relating to the promotion of competition. The body, thus,
consists of impartial, and expert,
members who are appointed for a
fixed term and who can only be removed for specific reasons.
[36]
25.11
It
has been held that
section 34
cannot be employed to find that
administrative tribunals are required to adopt the same procedures as
are to be found in a court.
[37]
However, it has been argued,
[38]
on the basis that
section 34
is seen as part of the broad principle
of the rule of law, that the failure of a tribunal (as opposed to a
court) to adhere to
a minimum standard of justice would render its
manner of operation unconstitutional.
25.12
I have set out hereinabove why I was unable
to find that the Forum was a ‘tribunal’ as required by
the Jockey Club cases.
For the same reason, I am unconvinced
that the Forum has been shown to be an “
independent
and impartial tribunal or forum
” as referred to in section
34 of the Constitution.
25.12.1.1
On that basis, the applicant does not have
reasonable prospects of success on appeal.
26
The matter of
Bredenkamp
:
26.1
It is contended that I erred when finding that I was
constrained to apply the legal principles as set out in
Bredenkamp
.
It is further contended, in this regard, that I failed to appreciate
that the applicant, unlike Bredenkamp, had invoked a constitutional

right when it relied on section 34 of the Constitution as a
prima
facie
right to access to courts.
26.1.1
As set out by Fabricius J in
Annex
Distribution
at [11]:
“
It was said
that the substance of the applicants’ rights under s 34 is the
right to have the disputes about the loan facility
agreements and
termination letters properly heard by a court. This provision
emphasises the rights of a party to have a justiciable
dispute
decided by a court of law in a fair hearing, but I must add that
it
obviously entails the fact that substantive and procedural law must
apply to any such hearing.
There is no doubt that this
right lies at the heart of the rule of law. I also agree that the
applicants have a right to be heard
in the context of the present
proceedings which obviously will be resolved by the application of
law. The substantive law in the
present context is, put very simply,
that the applicants must show that the requirements for an interim
interdict are present,
failing which there would be no reason in the
context of a contractual dispute to preserve the status quo against
the will of the
one contracting party, and contrary to the express
terms of their contractual relationship, and irrespective of the
question where
the balance of convenience lies, having regard to the
harm that needs to be balanced. This right to be heard must also be
subject
to all relevant provisions of procedural law, such as the
Uniform Rules of Court.
” [own emphasis]
26.1.2
Accordingly,
even where the applicant relies on section 34
for
access to the court
,
[39]
I am still required to consider the substantive law.
Bredenkamp
forms part of this substantive law.
26.2
It is further contended that I erred:
26.2.1
in the strict application of
Bredenkamp
to the
present facts, as
Bredenkamp
is distinguishable both in fact
and in law from the applicant’s case.
26.2.2
in finding that the principles enunciated in
Bredenkamp
should be applied while failing to consider the legislation that was
enacted after
Bredenkamp
, the Conduct Standard for Banks 3 of
2020 ("the Bank Code") which is a legislative tool,
specifically formulated to offer
greater protection for consumers.
26.2.3
in not dealing with the consequences of the Bank Code
obligation for reasons on the finding in
Bredenkamp
and the
respondent’s decision.
26.3
Applicability of
Bredenkamp
in the absence of the Bank Code:
26.3.1
In
addition to the other contentions revolving around the misapplication
of
Bredenkamp
in light of the other decisions already referred to herein
[40]
,
the applicant contends that:
(a)
Bredenkamp
is
distinguishable in fact and in law from the instant case, and
therefore should not have found application.
(b)
Bredenkamp
is
not absolute law, and should not be used uncritically or applied
mechanically to any and all bank-client relationships.
26.3.2
My findings:
(a)
At par 23 to 24, I held that:
“
23.
I am, however, constrained to apply the current legal principles, as
set out by the Supreme Court of
Appeal in the two matters of
Bredenkamp v Standard Bank of South Africa Ltd
2010 (4) SA 468
(SCA)
and
Multichoice Support Services
(Pty) Ltd v
Calvin Electronics t/a Batavia Trading and another
[2021] JOL 51315
(SCA).
24.
Whilst Bredenkamp is distinguishable in some respects especially
regarding the allegations
regarding Bredenkamp himself, the
principles (from [55] to [65]) are instructive and I apply them as
follows (with apologies to
Harms DP for the use of his phraseology,
which ultimately suits this matter also):
…
24.9
Fundamentally, therefore, if there is a remedy for the
applicant, it would not be a review, but a contractual claim for
breach of
contract.
”
26.3.3
I have re-read the decision in
Bredenkamp
and note the following regarding the facts:
(a)
The
Supreme Court of Appeal had before it some greater evidence of what
caused the negative reputation under which
Bredenkamp
and his associated companies suffered.
[41]
(b)
Besides
this, the court held that:
[42]
“ …
the
submission, that the bank's decision to close the accounts was
procedurally and substantively unfair, was without basis.
Procedures
to establish the truth of the allegations underlying the account
closures would in any event have been irrelevant since
the closure
was based not on the merits of the allegations, but on the fact of
listing and the risks it posed for the bank. The
same argument
applied to the second appellant's reputation, where the bank relied
on the fact of his reputation and not the truth
of it
.
As for the objection by the appellants that in respect of the second
appellant's reputation, the bank had relied on facts
only determined
after closure of the accounts, our case law confirmed that party has
always had the right to justify a cancellation
with objective facts
unbeknown to that party at the time when the cancellation took place.
(Paragraphs [61] and [63] at 486B -
E and 486F - 487A.)
”
[own emphasis]
(c)
It is apparent from this that the Supreme
Court of Appeal did not seek to go into more than the fact of the
reputation, rather than
the truth of the facts giving rise to it.
(d)
Having said that, the respondents did set
out in some detail in the answering affidavit the allegations against
the Dr Survé
and the Sekunjalo Group, and why that causes some
embarrassment and risk for it.
(e)
At no time will the facts in such cases be
mirror images of each other.
(f)
I am, however, of the opinion that the
respondent did enough to set out why there was business or
reputational risk associated with
doing business with the Sekunjalo
Group entities.
26.3.4
The applicant therefore has no reasonable
prospects of success in respect of this ground.
26.3.5
I have re-considered the legal principles
assessed in
Bredenkamp
.
It is apparent that,
inter alia
:
(a)
The
appellants in did not base their claims on the infringement of any
constitutional values, accordingly the matter was about fairness
as
an overarching principle, and nothing more.
[43]
(b)
The
court considered the principles of public policy and constitutional
values and the impact they have on the enforcement of contractual

terms.
[44]
(c)
The
court held that the decision of
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC)
(2007 (7) BCLR 691)
confirmed that a contractual
term which only limited a constitutional right, as opposed to one
which deprived someone of it, was
not necessarily contrary to public
policy, but would be so if it were unreasonable and unfair.
[45]
Accordingly, contracts that were prima facie unconstitutional were
unenforceable. Where the enforcement of a prima facie
innocent
contract implicated an identified constitutional value and such value
was unjustifiably affected, the term should not
be enforced.
Similarly, if a contract imposed a limitation on a constitutional
value within the meaning of section 36 of the Constitution,
the court
should assess whether, at the time of enforcement, the limitations
were still fair and reasonable in the circumstances.
[46]
(d)
It
also held that it was not for a court to assess whether or not a
bona
fide
business decision, which on the face of it was reasonable and
rational, was objectively wrong where, in the circumstances, no
public policy considerations were involved.
[47]
(e)
It is, therefore, apparent that the scope
of the investigation into in
Bredenkamp
was narrower than in the instant matter.
(f)
I remain unconvinced, however, that
principles in
Bredenkamp
are not apposite to the instant matter.  The decision clearly
explains the relationship between a bank and its clients and
goes
further to explain that a proper attack on the termination would need
to either implicate a constitutional value or attack
the term of the
contract on which the termination is based.
(g)
In that regard, the applicant is correct in
seeking to attack the termination by alleging the implicating of
constitution rights
and the infringement of public policy.
(h)
However,
and even when applying the Constitution and the requirements of
public policy, it is apparent that the appropriate cause
of action
under which to attack the termination is a contractual cause of
action – either declaring the term of the contract
invalid and
unenforceable, or seeking specific performance of the specific term
which included the procedural rights for which
the applicant contends
and which had been breached by the respondent.  The appropriate
cause of action is not a review.
[48]
(i)
Accordingly, and whilst the applicant may
be correct in the limited application of
Bredenkamp
,
the correct application of
Bredenkamp
will not result in a change of the order herein on appeal.
(j)
Accordingly, the applicant has no
reasonable prospects of success on appeal in respect of this ground.
26.4
Applicability of
Bredenkamp
in the face of the Bank Code:
26.4.1
The application of the Bank Code will
likely result in later decisions distinguishing
Bredenkamp
from the present position, as the Bank Code now imports certain terms
into the contracts between the parties.
26.4.2
However,
and even when applying Bank Code to the agreement between the parties
(which agreement has not actually been proved), as
well as the
Constitution and the requirements of public policy, it is apparent
that the appropriate cause of action under which
to attack the
termination is a contractual cause of action – either declaring
the term of the contract invalid and unenforceable,
or seeking
specific performance of the specific term which included the
procedural rights for which the applicant contends and
which had been
breached by the respondent.  The appropriate cause of action is
not a review.
[49]
26.4.3
Accordingly, and whilst the applicant may
be correct in the limited application of
Bredenkamp
,
the correct application of
Bredenkamp
will not result in a change of the order herein on appeal.
26.4.4
Accordingly, the applicant has no
reasonable prospects of success on appeal in respect of this ground.
27
There are reasonable prospects, given the complexity of the
issues, that another court would come to a different conclusion.
27.1
As set out hereinabove, and upon a proper
analysis of the facts and the legal principles, I am of the view that
the issues are not
complex – they amount to a simple
determination of what the appropriate cause of action would be in
Part B of the Notice
of Motion.
27.2
If the cause of action in Part B can never
be appropriate or successful, then the applicant cannot show that it
has a
prima facie
right.
27.3
In the instant matter, it has been shown
that the review sought to be launched by the applicant can never be
appropriate or successful.
Therefore, the applicant cannot show
that it has a
prima facie
right.
27.4
Accordingly, there are no reasonable
prospects that another court will come to a different conclusion.
Additional grounds
28
Whether or not conflicting SCA and High
Court authorities is a compelling reason for granting leave to appeal
– in this case:
(a)
Multichoice Support Services (Pty) Ltd v
Calvin Electronics t/a Batavia Trading and Another
[2021]
JOL 51351
(SCA) and
Trustees for the
time being of the Legacy Body Corporate v Bae Estates and Escapes
(Pty) Ltd and Another
[2022] 1 All SA
138
(SCA); and
(b)
Annex Distribution (Pty) Limited and
Others v Bank of Baroda
[2017] ZAGPPHC
639 (per Makgoka J) and
Annex
Distribution (Pty) Ltd and Others v Bank of Baroda
2018 (1) SA 256
(GP) (per Fabricius J).
28.1
I have previously analysed both sets of
cases.  It is clear that the decisions relate to completely
different facts and/or
the legal issue are sufficiently different
that they are not “conflicting authorities”.
28.2
Accordingly, and in respect of this ground,
the applicant has no reasonable prospect of success on appeal.
29
Whether or not this matter raises an
arguable point of law of general public importance:
(a)
Whether the decision of a bank to terminate
a client's bank account is subject to review;
(b)
Whether the court's review powers are only
limited to administrative action;
(c)
Whether the rules of natural justice apply
to decisions of private bodies, and if so, when;
(d)
Whether the requirement for furnishing
reasons renders the decision of a bank reviewable, and if so, under
what circumstances;
29.1
The applicant contends that this matter
raises the abovementioned issues which are arguable points of law of
general public importance
and/or the administration of justice which
requires consideration by the Supreme Court of Appeal or the Full
Court, as contemplates
in
section 17(6)
of the
Superior Courts Act 10
of 2013
.
29.2
The respondent contends that:
(a)
The applicant’s contention set out above appears to be a
separate basis to support its application for leave to appeal.

However,
section 17(6)
of the Act does not provide a separate or
self-standing basis upon which leave to appeal may be sought. Rather,
section 17(6)
of the Act determines whether an appeal, in respect of
which leave has already been granted in terms of
section 17(1)
and
17
(2) of the Act, ought to be heard by the Full Court or the Supreme
Court of Appeal.
(b)
This consideration only arises once an applicant for leave to
appeal has demonstrated that there would be a reasonable prospect of

success of its appeal in terms of
section 17(1)(a)(i)
or another
compelling reason for the appeal to be heard in terms of
section
17(1)(a)(ii).
Unless this threshold is met, there can be no
consideration of whether or not the case in question raises questions
of law of importance
which justify the consideration of the Full
Court or the Supreme Court of Appeal.
(c)
In any event, this case does not raise arguable points of law
of general public importance that require the attention of an
appellate
court. The Supreme Court of Appeal has already determined
in
Multichoice Support Services
that there is no right of
review in respect of the cancellation of a contract between private
parties. There is no prospect that
another court would come to
another conclusion.
29.3
The legal principles:
(a)
Section 17(6)
of the Act provides:
“
(6)(a)
If
leave is granted under subsection (2)(a) or (b) to
appeal against a
decision of a Division as a court of first instance consisting of a
single judge, the judge or judges granting
leave must direct that the
appeal be heard by a full court of that Division, unless they
consider —
(i)
that the decision to be appealed involves a question of law of
importance, whether
because of its general application or otherwise,
or in respect of which a decision of the Supreme Court of Appeal is
required to
resolve differences of opinion; or
(ii)
that the administration of justice, either generally or in the
particular case, requires consideration
by the Supreme Court of
Appeal of the decision, in which case they must direct that the
appeal be heard by the Supreme Court of
Appeal.
”
(b)
The
general aim of this subsection is to place a qualitative limitation
on the cases coming on appeal to the Supreme Court of Appeal.
[50]
(c)
As
far as questions of law are concerned, the test is not the difficulty
or complexity of such a question, but rather whether the
question of
law is
res
nova
or
involves a matter of principle rendering it important.  If
the law is not really controversial, the matter should
be heard by
the full court of the division of the High Court concerned.
[51]
(d)
If one applies the sub-rule upon which the
applicant relies, it becomes apparent, from the wording of the
sub-rule no less, that
the issues of legal importance and
administration of justice only come into consideration “[i]
f
leave is granted under subsection (2)(a) or (b) to appeal
.”
29.4
Application of the legal principles:
(a)
As I do not propose to grant leave to
appeal, the sub-rule does not come into consideration.
(b)
Insofar
as the applicant intended to rely upon
section 17(1)(a)(ii)
of the
Act, it was still required to show that
there
is a compelling reason why the appeal should be heard.
[52]
As
far as compelling reasons
[53]
are concerned, the merits of the prospects of success remain vitally
important and are often decisive.
[54]
(c)
Given what has been set out hereinabove and
with particular reference to the decision of
Multichoice
Support Services
, I am of the view that
the applicant has no reasonable prospects of success.
(d)
Accordingly, I am of the view that, even on
this basis, leave to appeal should be refused.
Costs
30
As a result of the wide-ranging arguments
herein and, no doubt, as a result of the importance of the matter to
the parties, both
parties rightly appeared with at least two counsel
throughout this matter.  I am of the view that this was a
prudent step
to take.  I am, therefore, satisfied that the
successful party should be awarded costs of two counsel.
Order
31
In light of what is set out above, the
following order shall issue:
1.
The application for leave to appeal is
dismissed with costs, including the costs of two counsel.
M BENEKE
JUDGE OF THE HIGH
COURT (ACTING)
Appearances:
For the Applicant:
Adv. T. Golden SC, with
Adv. C. Bester and Adv. Moodley (Adv. T. Ramogale assisted in
drafting the Heads of Argument)
Instructed by Adriaans
Attorneys c/o Goldberg & De Villiers Inc
For the Respondent:Adv.
Bham SC, with Adv. P. Bosman
Instructed by Norton Rose
Inc c/o Smith Tabata Inc
[1]
See
Erasmus’
Superior Court Prqctice
,
RS
16, 2022, A2-55, and the authorities at n 4.
[2]
Four
Wheel Drive Accessory Distributors CC v Rattan NO
2019
(3) SA 451
(SCA) at 463F;
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen
, Unreported,
LCC case no LCC14R/2014 dated 3 November 2014, cited with approval
by
Minister
of Police v Zamani
(ECB case no 12/2019 dated 2 February 2021) at par [4];
[3]
Notshokovu
v S
, Unreported,
SCA case no 157/15 dated 7 September 2016, at par [2].
[4]
Tansnat
Durban (Pty) Ltd v Ethekwini Municipality
(unreported, KZD case no D4178/2020 dated 8 February 2021) at par
[13].
[5]
Tansnat
Durban (Pty) Ltd v Ethekwini Municipality
(unreported, KZD case no D4178/2020 dated 8 February 2021) at par
[12].
[6]
Tansnat
Durban (Pty) Ltd v Ethekwini Municipality
(unreported, KZD case no D4178/2020 dated 8 February 2021) at par
[13].
[7]
As
contemplated in
s 17(6)
(a)
(i)
of the Act; and see
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020
(5) SA 35
(SCA) at par [2] and
Tansnat
Durban (Pty) Ltd v Ethekwini Municipality
(unreported, KZD case no D4178/2020 dated 8 February 2021) at par
[13].
[8]
As
contemplated in
s 17(6)
(a)
(ii)
of the Act. In
Minister
of Justice and Constitutional Development v Southern Africa
Litigation Centre
2016
(3) SA 317
(SCA) the Supreme Court of Appeal stated (at
330C–F).
[9]
Minister
of Justice and Constitutional Development v Southern Africa
Litigation Centre
2016
(3) SA 317
(SCA) at 330A–C.
[10]
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020
(5) SA 35
(SCA) at par [2];
Minister
of Justice and Constitutional Development v Southern Africa
Litigation Centre
2016 (3) SA 317
(SCA) at 330C.
[11]
Jacobs
v Beacon Island Shareblock
,
Unreported, WCC case no A258/2018 dated 6 February 2019, at par [29]
regarding
Zweni
v Minister of Law and Order of the Republic of South Africa
1993 (1) SA 523
(A);
S
v Western Areas Ltd
2005 (5) SA 214
(SCA);
Philani-Ma-Afrika
v Mailula
2010 (2) SA 573 (SCA).
[12]
Nova
Property Group Holdings Ltd v Cobbett
2016
(4) SA 317
(SCA) at 324D.
[13]
Former
Way Trade and Invest (Pty) Limited v Bright Idea Projects 66 (Pty)
Limited
2021 (12) BCLR 1388
(CC) at pars [17]–[18].
[14]
Body
Corporate Pinewood Park v Dellis (Pty) Ltd
2013
(1) SA 296
(SCA);
MEC,
Western Cape Department of Social Development v BE obo JE
2021
(1) SA 75 (SCA).
[15]
Kini
Bay Village Association v Nelson Mandela Metropolitan
Municipality
[2008] ZASCA 66
;
2009
(2) SA 166
(SCA) at 174B–D.
[16]
MEB
Energy (Pty) Ltd v Ndlambe Local Municipality and Another
(466/2020) [2020] ZAECGHC 16 (5 March 2020) (466/2020) [2020]
ZAECGHC 30 (28 April 2020).
[17]
Webster
v Mitchell
1948
(1) SA 1186
(W) at 1188.
[18]
SA
Informal Traders Forum and Others v City of Johannesburg and Others
2014 (4) SA 371
(CC) at [25] – [28].
[19]
Economic
Freedom Fighters v Gordhan and Others; Public Protector and Another
v Gordhan and Others
2020
(6) SA 325
(CC) at [42].
[20]
Olympic
Passenger Service (Pty) Ltd v Ramlagan
1957 (2) SA 382
(D) at 383D-G;
Simunye
Developers CC v Lovedale Public FET College and Another
(3059/2010) [2010] ZAECGHC 121 (9 December 2010).
[21]
Fischer
and Another v Ramahlele and Others
2014
(4) SA 614
(SCA) at [13].
[22]
SA
Informal Traders Forum and Others v City of Johannesburg and Others
2014 (4) SA 371
(CC) at [25] – [28].
[23]
Economic
Freedom Fighters v Gordhan and Others; Public Protector and Another
v Gordhan and Others
2020
(6) SA 325
(CC) at [42].
[24]
Olympic
Passenger Service (Pty) Ltd v Ramlagan
1957 (2) SA 382
(D) at 383D-G;
Simunye
Developers CC v Lovedale Public FET College and Another
(3059/2010) [2010] ZAECGHC 121 (9 December 2010).
[25]
Commencing with
Turner
v Jockey Club of South Africa
[1974] 4 All SA 52
(A); 1974 (3) SA 633 (A).
[26]
Thandroyen
v Sister Anunicia and Another
1959 (4) SA 632
(N) at 639F-640A
[27]
Dansell
v The Southern Life Association Limited
(1992) 13 ILJ 533 (C) at 539F-H
[28]
Thandroyen
v Sister Anunicia and Another
1959 (4) SA 632
(N) at 639F-640A
[29]
GN 294 of 1 April 2011:  Determination of threshold in
terms of the Act (
Government
Gazette
No.
34181).
[30]
Commissioner
,
SAPS v
Maimela
2003 3 All SA 298
(T);
2004 1 BCLR 47
(T); 2003 5 SA 480
(T) 485G–486C;
Koyabe
v Minister for Home Affairs
2009
12 BCLR 1192
(CC); 2010 4 SA 327 (CC) par 64 (both of
these in the context of administrative decisions).
[31]
Commissioner
,
SAPS v
Maimela
2003 3 All SA 298
(T);
2004 1 BCLR 47
(T); 2003 5 SA 480
(T) 486F–H;
Koyabe
v Minister for Home Affairs
2009
12 BCLR 1192
(CC); 2010 4 SA 327 (CC) par 64 (both of
these in the context of administrative decisions).
[32]
Expanded
upon at par 104 to 107 of the founding affidavit.
[33]
Expanded
upon at par 108 to 112 of the founding affidavit.
[34]
Expanded
upon at par 113 to 126 of the founding affidavit.
[35]
Taken
from the headnote.
[36]
Cheadle
South
African Constitutional Law: The Bill of Rights
(LexisNexis) 28-8(1).
[37]
Hamata
and Another v Chairperson, Peninsula Technikon Internal Disciplinary
Committee and Others
[2000] 3 All SA 415 (C).
[38]
Cheadle
South
African Constitutional Law: The Bill of Rights
(LexisNexis) 28-8(2).
[39]
I
have already dealt with why the applicant has not shown that the
Forum falls within section 34 of the Constitution.
[40]
With
which I have dealt already, and to which conclusions I refer.
[41]
Bredenkamp
v Standard Bank of South Africa Ltd
2010
(4) SA 468
(SCA)
par [12] through [20].
[42]
Taken
from the headnote.
[43]
Par
[27] at 477D; [30] at 478B - C.
[44]
Par
[38] at 480E – F, [39] at 481C - D.
[45]
Par
[44] at 482C - D.
[46]
Par
[47] and [48] at 483A – D.
[47]
Par
[65] and [66] at 487D - E.
[48]
In
this regard, I refer to what has already been stated about
Multichoice
Support Services
,
Fabricius J in
Annex
Distribution
,
and
Beadica
.
[49]
In
this regard, I refer to what has already been stated about
Multichoice
Support Services
,
Fabricius J in
Annex
Distribution
,
and
Beadica
.
[50]
Cf
Westinghouse
Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986
(2) SA 555
(A) at 562B.
[51]
Erasmus
Superior Court Practice
RS
18, 2022, A2-60 to A2-61.
[52]
See
also
Tansnat
Durban (Pty) Ltd v Ethekwini Municipality
(unreported, KZD case no D4178/2020 dated 8 February 2021) at par
[12].
[53]
Such as the fact that the decision sought to be appealed against
involves an important question of law (as contemplated in s

17(6)
(a)
(i)
of the Act. See
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020
(5) SA 35
(SCA) at para [2] and
Tansnat
Durban (Pty) Ltd v Ethekwini Municipality
(unreported, KZD case no. D4178/2020 dated 8 February 2021) at para
[13]); that the administration of justice, either generally
or in
the particular case concerned, requires the appeal to be heard
(as contemplated in s 17(6)
(a)
(ii)
of the Act. See
Minister
of Justice and Constitutional Development v Southern Africa
Litigation Centre
2016
(3) SA 317
(SCA) at 330C–F); and the existence of differing
interpretations, concretized in two judgments, of another judgment
(
Vosloo
NO v The South African Medical Association NPC
(unreported, GP case no 44983/2020 dated 13 May 2022) at [3]).
[54]
Minister
of Justice and Constitutional Development v Southern Africa
Litigation Centre
2016 (3) SA 317
(SCA) at 330C;
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020
(5) SA 35
(SCA) at par [2].