THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No 599/09

In the matter between:

JOHN ARNOLD BREDENKAMP

First Appellant
BRECO INTERNATIONAL LTD

Second Appellant
HAMILTON PLACE TRUST

Third Appellant
INTERNATIONAL CIGARETTE MANUFACTURERS

(PTY) LTD

Fourth Appellant

and

STANDARD BANK OF SA LTD

First Respondent

Neutral citation: Bredenkamp v Standard Bank (599/09) [2010] ZASCA 75 (27 May
2010)

Coram:
Harms DP, Cloete, Ponnan and Cachalia JJA and Saldulker AJA

Heard:
06 May 2010

Delivered:
27 May 2010

Summary:
Banker and client – closing of account by bank – when justified –
exercise of a contractual right, which does not involve any public policy
considerations or constitutional values, does not have to be ‘fair’.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: South Gauteng High Court (Johannesburg) (Lamont J sitting as
court of first instance):
The appeal is dismissed with costs, including the costs of two counsel.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

HARMS DP (CLOETE, PONNAN and CACHALIA JJA and SALDULKER AJA
concurring)

INTRODUCTION
[1] This appeal relates to the right of a banker to close a client’s account.1 The
issue was presented as a constitutional issue because it was said to be based on
principles laid down by the Constitutional Court (the CC) in Barkhuizen v Napier.2
The first proposition is that the benchmark for the constitutional validity of a term of a
contract is fairness; and the second is that even if a contract is fair and valid, its
enforcement must also be fair in order to survive constitutional scrutiny.3 The
appellant’s case, as it unfolded during the course of the proceedings, was based on
the second but it will be necessary to consider both because in my judgment they
are not to be found in the CC judgment and are in any event unsound.
[2] The appellants, who were the applicants in the High Court, are Mr John
Bredenkamp, two companies that ‘belong’ to him, and a trust that owns one of
Bredenkamp’s many residences.4 Before us the case of the trust was abandoned,

1 The complex relationship between a bank and its customers was discussed by Moseneke AJ in
Standard Bank of SA Ltd v Absa Bank Ltd [1995] 1 All SA 535, 1995 (2) SA 740 (T) at 746G-747E.
2 2007 (5) SA 323 (CC), 2007 (7) BCLR 691 (CC).
3 Breedenkamp v Standard Bank of SA Ltd 2009 (5) SA 304, [2009] 3 All SA 339 (GSJ) (the Jajbhay J
judgment). The incorrect spelling of Bredenkamp in the law reports comes from this judgment.
4 The second appellant is Breco International Ltd; the third is Hamilton Place Trust; and the fourth is
International Cigarette Manufacturers (Pty) Ltd.

which means that we are concerned only with Bredenkamp and his two companies,
and further references to ‘the appellants’ will be to them. According to the founding
affidavit, the appellants are international commodities traders that required banking
facilities in order to conduct business in this country. They also required Pound
Sterling and US Dollar denominated accounts to make and receive payment for
commodities bought and sold internationally. In addition, Bredenkamp required
personal banking facilities.
[3] The appellants, consequently, opened a number of accounts with the
respondent, Standard Bank of SA Ltd, during 2002. Bredenkamp held a MasterCard
credit card, a number of current accounts and two foreign currency accounts. The
one company held a current account and the other a money market account.
[4] On 8 December 2008, the Bank notified the appellants that it had suspended
the credit card facilities and that it intended to withdraw them on 6 January 2009.
One of Bredenkamp’s current accounts had an overdraft facility attached, and that
was likewise suspended and was to be withdrawn on the same date. As far as the
other current accounts and the foreign currency accounts were concerned, the Bank
requested the appellants to make alternative arrangements because these were to
be closed on 19 January 2009. At the request of the appellants the Bank gave them
extensions from time to time. The detail is of no consequence.
[5] The appellants approached the High Court as a matter of urgency for an
interim interdict restraining the Bank from cancelling the contracts, which underlie
the banking facilities, and from closing the accounts. The matter came in the first
instance before Jajbhay J (whose untimely death occurred two days before the
hearing of this appeal). The learned judge granted the interim interdict and his
judgment is reported.5 On the return day the matter came before Lamont J who
found that the appellants had not made out a case for an interdict and so he
discharged the rule and dismissed the application. His judgment is also reported.6
This appeal against his judgment is with the leave of this Court.
THE APPLICATION

5 The Jajbhay J judgment.
6 Breedenkamp  v Standard Bank of SA Ltd  2009 (6) SA 277 (GSJ).

[6] The Bank sought to justify its right to terminate its relationship with the
appellants on two grounds. The first was that it had the right in terms of an express
term of its contracts to close the accounts with reasonable notice. It also relied on an
implied term with the same effect, namely that an indefinite contractual relationship
may be terminated with reasonable notice.7 (An implied term is one implied by law
into all contracts of a particular nature (a naturale). This means that it is a rule of law
that can be varied or made inapplicable by agreement. A tacit term is one that has to
be implied with reference to the presumed intention of the parties to a particular
contract.)
[7] The Bank did not initially inform the appellants of its reasons for termination.
One would assume that in the ordinary course of events the motive of a party in
exercising a right – contractual in this case – is irrelevant.8 (A possible exception
could be the abuse of rights.)
[8] The final relief sought in the notice of motion was multi-pronged and wide-
ranging. It was based primarily on the supposition that the contracts between the
parties did not contain the express term. Probably realizing that the term could be
said to be implied, the appellants sought an order declaring that the common-law
rule is that an indeterminate contract may be terminated only in the event of a
breach by the other party. In the event, the affidavit of Bredenkamp, dealt with later,
sought to make out a different case without an amendment of the notice of motion.
[9] In the alternative, the appellants sought to attack the validity of the implied
term and by implication the express term. Apart from a generalized attack on the
basis of both being contra bonos mores, the constitutional attack was particularized
with reference to a breach of the following rights contained in the Bill of Rights, viz:
‘section 9 (equality); section 10 (human dignity); section 14 (privacy); section 15 (freedom of
religion, belief and opinion); section 16 (freedom of expression); section 18 (freedom of
association); section 22 (freedom of trade, occupation and profession); section 25

7 Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809 (A); ([1985] 2 All SA 533 (A));
Amalgamated Beverage Industries Ltd v Rond Vista Wholesalers 2004 (1) SA 538 (SCA); [2003] 4 All
SA 95 (SCA).
8 Compare National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA), [2008] 1 All SA
197 (SCA) para 37-38; Jansen van Vuuren & ano NNO v Kruger 1993 (4) SA 842 (A), [1993] 2 All SA
619 (A).

(property); section 32 (access to information); section 33 (just administrative action); [and]
section 34 (access to courts).’
[10] There was also a prayer for review of the Bank’s decision in terms of
administrative justice principles on the basis that the appellants were entitled to a
hearing before the decision to close the accounts was taken. The appellants have
abandoned this leg of their case. However, they harked back to a right to be heard
(not a right to a hearing) in another context.
[11] The crucial relief sought was for an order that the Bank had to ‘maintain the
accounts’ – presumably until the appellants were to commit a breach of contract.
The apparent basis for the relief was that the term was invalid or that it flowed from
the new common-law rule that was to be developed.
THE REASONS FOR TERMINATION
[12] The Bank disclosed its reasons for termination in its first set of affidavits. The
decision came about because of the listing of Bredenkamp and a number of entities
owned or controlled by him as ‘specially designated nationals’ (SDNs) by the US
Department of Treasury’s Office of Foreign Asset Control (OFAC) on 25 November
2008. OFAC administers and enforces economic and trade sanctions based on US
foreign policy and national security goals. The Bank became aware of the listing on
26 November.

[13] MasterCard, a US company, is not permitted by US law to conduct any
business directly or indirectly with any listed person or entity and the Bank, by virtue
of its relationship with MasterCard, could not permit an SDN to use a MasterCard.
The Bank was, accordingly, obliged to cancel the MasterCard account and
Bredenkamp accepted before us that he was not entitled to any relief in relation to
this account.
[14] The reason why Bredenkamp was listed by OFAC is because he was said to
be a ‘crony’ of President Mugabe of Zimbabwe and that he had provided financial
and logistical support to the ‘regime’ that has enabled Mugabe ‘to pursue policies
that seriously undermine democratic processes and institutions in Zimbabwe’.
Bredenkamp disputed these allegations. The Bank in turn did not suggest that the

grounds for his listing were factually correct or justified and this Court, too, is not
called upon to determine whether they are.
[15] An on-line report at the time alerted the Bank to the fact that Bredenkamp
was allegedly involved in various business activities, including tobacco trading, grey-
market arms trading and trafficking, equity investments, oil distribution and diamond
extraction.
[16] Bredenkamp was clearly not an ordinary client. On one bank form he
indicated that his monthly income was R500 000 during 2002. He was reputed to
have been one of the 100 richest persons in the UK. He owned residences in
several parts of the world. It is accordingly not surprising that the Bank, immediately
after the listing (which in itself was evidence of his prominence and wealth), made
internal inquiries and discussed his case at the level of senior executives and
managers.
[17] The Bank’s first concern was that if it were to maintain its relationship with the
appellants, ‘domestic and foreign onlookers might reasonably believe or suspect that
accounts held at Standard Bank would or could be used to facilitate unlawful and/or
unethical acts’ and its association ‘might well undermine a bank’s hard-won and
fragile national and international reputation’.
[18] The Bank was also apprehensive of the possibility that any continued
relationship with the appellants would create material business risks. Although the
Bank itself is not bound to comply with the listing, many financial institutions with
which it conducts business internationally are. These financial institutions impose
stringent obligations in respect of the correspondent accounts they offer to banks
such as the respondent. Any misstep by the Bank concerning a client who is an SDN
could lead to the seizure of funds transferred in bulk on behalf of a number of clients,
to a closure of accounts or to an adverse report to OFAC. It follows that it was not
only the Bank’s reputation that it felt was at risk but that there were also material
business risks.
[19] Subsequently, but while the termination was suspended and before the filing
of the answering affidavit, the Bank made further inquiries about Bredenkamp and
established that, apart from his listing, he had an unenviable and dubious reputation

locally and internationally.9 The allegations included the following: He was a
sanctions buster not only of US but also of UN arms embargoes; he smuggled
cigarettes and thereby circumvented customs and tax laws; he benefitted from the
war in the Congo; he was the subject of serious fraud investigations in the UK and of
police raids and tax evasion investigations in South Africa; his Dutch citizenship had
been withdrawn; and that he was a ‘paymaster of irregular commissions to SA
government officials’. Once again, it must be assumed, as the Bank did, that these
allegations may not be true: unfortunately, reputation is not necessarily based on
fact but often on perception.
[20] To add to Bredenkamp’s woes the UK soon followed the US and Bredenkamp
was placed on a consolidated list of financial targets in relation to the Zimbabwe
‘regime’. The European Union followed suit on 20 February 2009. Bredenkamp has
launched review proceedings in relation to the EU listing but there is nothing on the
papers to indicate that he has taken any formal steps to set aside the other listings.
THE CASE BEFORE LAMONT J
[21] The appellants’ case as argued before Lamont J was much narrower than
that envisaged in the papers. It is important to understand the downsizing because it
impacts on the argument eventually presented to this Court.
[22] I deal first with the attack on the express term of the contract on which the
Bank relied to close the accounts. Bredenkamp, in his first affidavit which was
supplementary to the founding affidavit, attacked the express term on the basis that
it was contained in a standard-form contract imposed by a powerful corporate entity
upon a vulnerable consumer,  accordingly operated in an unbalanced way, and was
unconstitutional. He added that he had been under the ‘definite impression that my
relationship with the bank would be perpetual and that it would not be terminated
without good reason or, at minimum, without first discussing with me the reasons
why the bank chose to do so’.
[23] The problem with the attack on the express term was that it took the case
nowhere because it provided no more than does the implied term or common-law
rule, which entitles a party to terminate an indefinite contractual relationship on

9 Lamont J judgment para 25.

reasonable notice. This compelled the appellants to attack the common-law rule.
The attack was constitutionally based with reference to the list of values in the Bill of
Rights referred to earlier. Bredenkamp submitted that the common law should be
developed so as to require that the decision to close an account be preceded by a
hearing and be based on rational or reasonable grounds.
[24] The appellants themselves scuttled these arguments. They accepted that the
agreement with the Bank entitled either party to terminate the relationship on
reasonable notice for any reason10 and that this clause or the implied term did not
offend any constitutional value. It was accordingly valid. They also accepted that due
notice had been given and that a reasonable time had been allowed.
[25] The issue Lamont J was asked to decide was whether or not, in the particular
circumstances under which the Bank had closed the accounts, any constitutional
values were ‘offended’ (para 14). On the basis that any had, the appellants whittled
down the relief sought. They now required an order prohibiting the Bank from closing
the accounts in the absence of good cause (because the contracts had already been
closed a mandamus to the effect that the closing was unlawful would have been
more appropriate) and interdicting the Bank from closing the accounts unless and
until good cause arose (para 19). Lamont J recognized that the constitutional values
had to be identified (para 17) but eventually considered the matter with reference, it
would appear, to the constitutional value of ‘fairness’ (para 31). Since he quoted at
length from Barkhuizen, one may assume that he proceeded from the assumption
that this value was recognised in that case.
THE CASE BEFORE THE SCA
[26] The argument for the appellants before this Court did not differ much from
that before Lamont J. It took as its lodestar para 56 from the majority judgment of
Ngcobo J in Barkhuizen which reads:
‘There are two questions to be asked in determining fairness.  The first is whether the clause
itself is unreasonable.  Secondly, if the clause is reasonable, whether it should be enforced
in the light of the circumstances which prevented compliance with the time limitation clause.’

10 I do not necessarily subscribe to the appellants’ submission that the entitlement extends to ‘bad’
reasons, at least by the Bank. This could amount to an abuse of the Bank’s rights.

This dictum, according to the argument, means that all contractual provisions have
to be ‘reasonable’. If they are not, they are unconstitutional. And even if they are
reasonable, their enforcement must also be reasonable. The contextual phrase
‘which prevented compliance with the time limitation clause’ was conveniently
glossed over.
[27] Consistent with the approach before Lamont J the appellants accepted that
the common-law rule and the express term of the contract were fair and reasonable
and therefore not in conflict with any constitutional values. Their complaint was
accordingly limited to the exercise of the admittedly ‘fair’ and valid contractual right.
The argument proceeded on the basis that Barkhuizen stands as authority for the
proposition that fairness is a core value of the Bill of Rights and that it is therefore a
broad requirement of our law generally. This would mean that any conduct (including
legislation), which is unfair, would be in conflict with the Constitution and,
accordingly void – a novel proposition, at least for me. In any event, according to the
argument, fairness and reasonableness have infused the law of contract to such an
extent that ordinary principles, such as those relating to mistake, misrepresentation,
cancellation and all else have been subsumed by constitutional fairness.
[28] I would be surprised if the judgment of Ngcobo J holds that an agreement to
pay a loan on demand or on a given agreed day requires for enforcement an inquiry
into the reasonableness of the creditor’s decision to rely on the contractual right. It
would mean that the debtor could argue that he needs time to pay; that the creditor
does not require the money on the given day; and that enforcement could lead to the
debtor’s sequestration – all very unfair. I shall attempt to demonstrate that the CC
did not do any such thing. For once we were not referred to any foreign
constitutional jurisprudence with such far-reaching consequences, presumably
because there is none.
[29] It is important to underscore a number of issues. The first is that the
appellants specifically said before us that they do not suggest that the common law
had to be developed. This came about when counsel was unable to formulate the
exception to the implied term which would fit his case. The problem that faced the
appellants in this regard was that it is inconsistent to accept that a contract of
indefinite duration (including this one) may be terminated with reasonable notice but

at the same time to contend that this one could not without good cause. The two
rules would be in conflict. This means that the provisions of s 39(2) of the Bill of
Rights, which require a court to promote the spirit, purport and objects of the Bill of
Rights when developing the common law, do not arise. Another consequence is that
the relief now sought, which is identical to that sought before Lamont J, is hardly
appropriate because it was based on a development of the common law.
[30] The second is this: although the appellants in the part quoted from the notice
of motion recited nearly every provision of the Bill of Rights counsel stated that they
do not suggest that the exercise of the right to terminate ‘implicated’ any
constitutional principle. It is accordingly not their case that the closing of the account
compromised constitutional democracy, or their dignity, freedom or right to equality
and the like, and the expansive interpretation of the Bill of Rights does accordingly
not arise (s 39(1)). The case is about fairness as an over-arching principle, and
nothing more.
[31] Thirdly, lack of bona fides was not alleged nor was it argued that the Bank
was not bona fide in closing the accounts.11 Having read Dutch and German law on
the subject of bona fides in contract law, which derives not from any bill of rights but
from their codes, I also could not find any instance where a similar defence was
raised.
[32] Lastly, the appellants also did not seek to rely on a revival of the exceptio
doli generalis. Whatever its scope may have been, in the absence of another
defence it cannot be fraudulent, unconscionable or inequitable to rely on a valid
right, in this case the right to terminate on reasonable notice.12 It is unfortunately
necessary to say something more about the exceptio because an obiter footnote in
Crown Restaurant13 read with Barkhuizen has given some14 the impression that the
CC has revived the exceptio doli generalis, which was laid to rest by this Court in

11 South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA), [2005] 4 All SA 168
(SCA) paras 28-34 expands on Brisley v Drotsky 2002 (4) SA 1 (SCA); 2002 (12) BCLR 1229 (SCA).
See also F D J Brand ‘The role of good faith, equity and fairness in the South African law of contract:
The influence of the common law and the Constitution’ 126 (2009) SALJ 71.
12 Universal Stores Ltd v O K Bazaars (1929) Ltd 1973 (4) SA 747 (A) at 762G-H.
13 Crown Restaurant CC v Gold Reef City Theme Park (Pty) Ltd 2008 (4) SA 16, 2007 (5) BCLR 453.
(CC) fn 1.
14 A J Kerr ‘The defence of unfair conduct on the part of the plaintiff at the time the action is brought:
The exceptio doli generalis and the replicatio doli in modern law’ 125 (2008) SALJ 241.

Bank of Lisbon.15 The footnote states that it was generally assumed before Bank of
Lisbon that the exceptio doli generalis provided a remedy against an unfair contract
and against the unfair enforcement of contracts. With all due respect, the statement
requires qualification.
[33] The majority in Bank of Lisbon, using a historical analysis, found that the
exceptio had not been part of our law. It was part of the Roman law of procedure
and never a substantive rule, and was used to alleviate the strictness of contracts
that were not based on bona fides. Since all contracts in our law are considered to
be bonae fidei, the exceptio had no purpose in modern law. The majority also
pointed out (at 610F-611D) that according to the jurisprudence of this Court – and
lower courts – a party is bound by a contract provided the contract is valid and
untainted and that a party could not raise the exceptio merely because one party has
exercised a right conferred by the contract.16 As Innes CJ already said:17
‘No doubt the condition is hard and onerous; but if people sign such conditions they must, in
the absence of fraud, be held to them. Public policy so demands.’
[34] Jansen J was extremely sceptical about the exceptio as a self-standing
defence; and he found it difficult to envisage an appropriate field of its operation.18 In
this Court, too, he (as a judge of appeal) had rejected the proposition that a party
was not bound by the term of a contract because it was unfair.19 In Bank of Lisbon,
however, he relied in his minority judgment on a number of cases where the
exceptio had been mentioned as a defence. But those cases were all covered by
clear rules such as rectification, mistake and estoppel.20 As in German law, the
exceptio was simply a convenient label for a number of rules but it had no specific
content.21
[35] The disquiet about facts similar to those in Bank of Lisbon had led AS Botha

15 Bank of Lisbon and SA Ltd v De Ornelas 1988 (3) SA 580 (A).
16 See also Union Government v Vianini Ferro-Concrete Pipes (Pty) Ltd 1941 AD 43 at 50.
17 Wells v South African Alumenite Co 1927 AD 69 at 73.
18 North Vaal Mineral Co Ltd v Lovasz 1961 (3) SA 604 (T) at 607F-608F.
19 Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) at 28F-G. See also Magna Alloys and
Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) at 893H-894B.
20 Carole Lewis ‘The demise of the exceptio doli: Is there another route to contractual equity?’ 107
(1990) SALJ  26 at 33.
21 Zimmermann & Whittaker Good faith in European contract law (2000) pp 19 and 29.

J in an earlier judgment to adopt the exceptio as a general principle.22 In both cases
a bank sought to use a deed of suretyship with a wide wording to secure debts that
had not been within the contemplation of the parties when the agreement was
entered into. In other words, the bank sought to rely on the deed for a purpose that
was never intended at the time of execution. As Lewis has pointed out, the problem
would not have arisen if the deeds had been appropriately interpreted. They should
have been interpreted contextually in their matrix.23 The result of a judgment is often
determined by the issues defined by the parties.24
FIRST PRINCIPLES
[36] It is unfortunately necessary to say something about the much maligned
principle that contracts have to be respected. Davis J, for instance, took issue with
‘contractual autonomy’ because it reflects in his view a libertarian view of the world
which is in conflict with the spirit of the Constitution read as a whole.25 This led to a
counter by Wallis J26 and a riposte by Davis J.27
[37] Much has been said about pactum sunt servandum as a holy cow. It may
have been one during Germanic and early Roman times when the law ‘laboured
under the tyranny of the word and the rule of formalism’.28 It has not been a holy cow
nor has contractual autonomy existed since the time of Justinian. The maxim was
derived from Codex 2.3.7 where in a particular context two Emperors had said that
‘pacti conventionisque fides servanda est’.29 Codex 2.3.6, stated that it is a self-
evident principle that contracts (pacta) concluded contrary to laws, imperial
constitutions,30 or the boni mores are of no force or effect. See also Codex 2.3.29.31

22 Rand Bank Ltd v Rubenstein 1981 (2) SA 207 (W).
23 KPMG Chartered Accountants SA v Securefin Ltd 2009 (4) SA 399 (SCA), [2009] 2 All SA 523 para
39. See also South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA) paras 28-34.
24 Dikgang Moseneke ‘Transformative constitutionalism: Its implications for the law of contract’ 20
(2009) Stell LR 3 at 11.
25 Advtech Resourcing (Pty) Ltd t/a Communicate Personnel Group v Kuhn 2008 (2) SA 375 (C),
[2007] 4 All SA 1368 para 30.
26 Den Braven SA (Pty) Ltd v Pillay & another 2008 (6) SA 229 (D), ([2008] 3 All SA 518).
27 Mozart Ice Cream Franchises (Pty) Ltd v Davidoff  2009 (3) SA 78 (C).
28 Aquilius (FP van den Heever) ‘Immorality and Illegality in Contract’ 58 (1941) SALJ 337 at p 339.
29 There is a more generalized statement in Codex 4.54.8 but read in context, especially Codex
4.54.4 which contains an early example of estoppel, it does not pretend to provide the last word on
the subject.
30 I used the rendition of W G Hiemstra and H L Gonin’s Trilingual Legal Dictionary 2 ed sv ‘pacta’.
31 For a detailed discussion see Edouard v Administrator, Natal 1989 (2) SA 368 (D).

[38] This Court in Sasfin32 consequently restated the obvious, namely that our
common law does not recognize agreements that are contrary to public policy. Our
courts have always been fully prepared to reassess public policy and declare
contracts invalid on that ground.33 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.34 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 (a former member of this Court who also died recently) together
with Spoelstra AJ, thought otherwise while Vermooten J agreed with Didcott J.35 The
view of Didcott J was eventually adopted by this Court in Magna Alloys.36 The
disagreement in Sasfin between the majority and the minority did not affect the
principle but its application to particular clauses and severability. Public policy
considerations are also not static and their weight may change as circumstances
change.
[39] Others have spoken more eloquently about the interaction between the
Constitution and the common law, more particularly the law of contract, but I shall
attempt to state the basics that have become trite but may not always have been
observed. The common law derives its force from the Constitution and is only ‘valid’
to the extent that it complies or is congruent with the Constitution. Every rule has to
pass constitutional muster. Public policy and the boni mores are now deeply rooted
in the Constitution and its underlying values. This does not mean that public policy
values cannot be found elsewhere. A constitutional principle that tends to be
overlooked when generalized resort to constitutional values is made is the principle
of legality. Making rules of law discretionary or subject to value judgments may be
destructive of the rule of law.

32 Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A) at 7I-9H.
33 A good example is Hurwitz v Taylor 1926 TPD 81 declaring marriage brokerage contracts invalid in
spite of the Roman Dutch law that recognised them.
34 Brisley v Drotsky 2002 (4) SA 1 (SCA) para 8.
35 See the discussion in National Chemsearch (SA) Pty Ltd v Borrowman and Another  1979 (3) SA
1092 (T) at 1100H-1101B.
36 Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A).

[40] It is now time to quote from the judgment of Ngcobo J in Barkhuizen about the
holy cow. He said (para 87):
‘Pacta sunt servanda is a profoundly moral principle, on which the coherence of any society
relies.  It is also a universally recognised legal principle.  But, the general rule that
agreements must be honoured cannot apply to immoral agreements which violate public
policy.  As indicated above, courts have recognised this and our Constitution re-enforces it.’
THE BARKHUIZEN JUDGMENT
[41] Although the judgment of the substantial majority (per Ngcobo J), with due
respect, appears to me to be clear and consistent, some have interpreted it
differently. It is accordingly my unenviable task to construe the judgment to the
extent that it impacts on this case.
[42] The case concerned the constitutionality of a time limitation clause in a short-
term insurance policy. It provided that the insured had to institute any claim within
three months after the claim had been rejected by the insurer. The case of the
insured was that the term limited his right of access to courts guaranteed by s 34 of
the Bill of Rights.
[43] The CC found that our common law has always recognised the right of an
aggrieved person to seek the assistance of a court of law and that a term in a
contract, which deprives a party of the right, is contrary to public policy (para 34).
Section 34 not only reflects the foundational values that underlie our constitutional
order, it also constitutes public policy (para 33). The question whether the clause
was contrary to public policy depended on whether it was inimical to the values that
underlie our constitutional democracy ‘as given expression to in section 34’ (para
36). (I emphasize the reference to the specific constitutional value involved in view of
the appellants’ admission that they do not rely on any particular value.) The CC
applied the tests laid down in Mohlomi,37 a judgment dealing with a statutory
limitation of the right of access to courts, which implies that the application of
constitutional values to legislation and contract does not differ. (It is trite that fairness
is not the test for statutory constitutionality.)
[44] The clause in question did not deny but only limited the right to seek judicial

37 Mohlomi v Minister of Defence 1997 (1) SA 124 (CC), (1996 (12) BCLR 1559).

redress (para 45). A limitation of this particular constitutional right is not per se
contrary to public policy but it would be if the limitation were ‘unreasonable or unfair’
(para 51). The CC then turned to consider the two quoted questions, namely
whether the clause itself was ex facie unreasonable and, if not, whether it should be
enforced ‘in the light of the circumstances which prevented compliance with the time
limitation clause’ (para 56).
[45] The first question requires no further attention. About the second the CC
said this (para 58):
‘The second question involves an inquiry into the circumstances that prevented compliance
with the clause.  It was unreasonable to insist on compliance with the clause or impossible
for the person to comply with the time limitation clause.  Naturally, the onus is upon the party
seeking to avoid the enforcement of the time limitation clause.  What this means in practical
terms is that once it is accepted that the clause does not violate public policy and non-
compliance with it is established, the claimant is required to show that in the circumstances
of the case there was a good reason why there was a failure to comply.’
This reflects the approach our courts have taken in relation to the enforcement of
clauses in restraint of trade. One considers, in the light of the circumstances
prevailing at the time of enforcement, whether or not it would be contrary to public
policy to enforce the restraint.38
[46] The public policy considerations that apply at the enforcement stage are no
different from those that apply at the first stage: is the limitation of the identified
constitutional value – the right of access to courts –fair and reasonable in the
circumstances? Significantly, the CC referred to only one example of unfair
enforcement and that related to impossibility where application of the lex non cogit
ad impossibilia rule could conceivably solve the problem. It did not raise simpler
examples of unfair enforcement such as that of an insured who is unable to afford a
lawyer and therefore not able to comply with a time limit.
[47] This all means that, as I understand the judgment, if a contract is prima facie
contrary to constitutional values questions of enforcement would not arise. However,

38 National Chemsearch (SA) Pty Ltd v Borrowman 1979 (3) SA 1092 (T) at 1107E-H; Magna Alloys
and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) at 895D-I.

enforcement of a prima facie innocent contract may implicate an identified
constitutional value. If the value is unjustifiably affected, the term will not be
enforced. An example would be where a lease provides for the right to sublease with
the consent of the landlord. Such a term is prima facie innocent. Should the landlord
attempt to use it to prevent the property being sublet in circumstances amounting to
discrimination under the equality clause, the term will not be enforced.
[48] Similarly, if the value is subject to limitation, such as the right of access to
courts or to practise a trade or profession, and was ‘reasonably’ limited within the
meaning of s 36, the court must assess at the time of enforcement whether the
limitation is still fair and reasonable in the circumstances.
[49] It is evident from the judgment that if evidence is required to determine
whether a contract is in conflict with public policy or whether its enforcement would
be so, the party who attacks the clause at either stage must establish the facts
(paras 66, 84-85 and 93).
[50] With all due respect, I do not believe that the judgment held or purported to
hold that the enforcement of a valid contractual term must be fair and reasonable
even if no public policy consideration found in the Constitution or elsewhere is
implicated.39  Had it been otherwise I do not believe that Ngcobo J would have said
this (para 57):
‘Self-autonomy, or the ability to regulate one’s own affairs, even to one’s own detriment, is
the very essence of freedom and a vital part of dignity. The extent to which the contract was
freely and voluntarily concluded is clearly a vital factor as it will determine the weight that
should be afforded to the values of freedom and dignity.  The other consideration is that all
persons have a right to seek judicial redress.’
[51] It is also not without significance that there is no indication in either of the
minority judgments of Moseneke ACJ and Sachs J of an over-arching requirement of
fairness. Instead, both judgments dealt with the matter as one of public policy as
found in the Constitution and there is nothing in them that supports the appellants’

39 Employment contracts are affected by the right to fair labour practices: Murray v Minister of
Defence 2009 (3) SA 130, [2008] 3 All SA 66 (SCA) para 11; Nakin v MEC, Department of Education,
Eastern Cape 2008 (6) SA 320, [2008] 2 All SA 559 (CkHC) para 36. The CC did not subject the
arbitration agreement in Lufuno Mphaphuli & Associates v Andrews 2009 (4) SA 529, 2009 (6) BCLR
527 (CC) or its enforcement to the fairness test.

argument.
[52] The appellants sought to bolster their argument in respect of a general
doctrine of unfairness with reference to a number of instances that, they say,
establish fairness as the basis of all our law. The cases concerned extortion and
restraint of trade, and there was also a general reference to Sasfin where the court
had struck down a contract as being contra bonos mores. It is difficult to understand
the relevance of these instances. They all dealt with contracts that were contra
bonos mores and were consequently invalid. Here the appellants have conceded the
validity of the contractual term. They also relied on three judgments that deal with
unlawful boycotts or blacklisting.40 These cases related to claims in delict. It escapes
me how they can be of any assistance in deciding the principles applicable to this
case and so does the argument that administrative justice principles of fairness
somehow ‘inform’ contract law.
FAIRNESS
[53] In the light of my conclusion that fairness is not a free-standing requirement
for the exercise of a contractual right it is strictly unnecessary to consider the facts
relating to fairness but because of the way the matter was argued it is preferable to
deal with the issue.
[54] Fairness remains a slippery concept as was illustrated by the fact that
Jajbhay J found that the closing of the account was unfair while Lamont J, on
basically the same facts, found otherwise. I am in general agreement with the
approach of Lamont J.
[55] The appellants’ case in simple terms is this. They require bank accounts to
conduct business locally. The closing of a bank account is a serious matter. If they
were to approach one of the remaining three major banks in the country for an
account they would have to disclose the fact of closure. Those banks would then
establish from them the reason for closure.41 When informed, they would not grant

40 Murdoch v Bulloch 1923 TPD 495; Hawker v Life Offices Association of SA 1987 (3) SA 777, [1987]
2 All SA 100 (C); Wolmarans v ABSA Bank Ltd 2005 (6) SA 551 (C).
41 It is not suggested that the Bank would have disclosed the reason for closing the accounts to other
banks. That would have been a breach of confidentiality. The Bank did not even disclose its reason to
the appellants and if the appellants had, before forcing the Bank to divulge its reason, approached
other banks the foundation of the appellants’ case would have fallen away.

the appellants banking facilities. The result of the closing of their accounts, they say,
effectively ‘unbanked’ them (a term coined by counsel). This is due to the fact that
the banking industry is in the hands of few who enjoy significant market power. It is
accordingly a case ‘where private power approximates public power or has a wide
and public impact’ when everyone ‘is entitled to effective relief in the face of
unjustified invasion of a right expressly or otherwise conferred by the highest law in
our land’.42
[56] The appellants’ argument is in many respects circuitous, self-destructive and,
in any event, without merit. They accept that in terms of the valid agreement the
Bank was entitled to terminate without any cause but they ask for an order that the
Bank may only terminate on good cause. This would require a tacit term or the
development of the common law, both of which they eschew. But, they say, in this
case the Bank cannot close the account with a bona fide reason because of
consequences to them that cannot be laid at the door of the Bank.
[57] The fact that the appellants as business entities are entitled to banking
facilities may be a commercial consideration but it is difficult to see how someone
can insist on opening a banking account with a particular bank and, if there is an
account, to insist that the relationship should endure against the will, bona fide
formed, of the bank. There is also a factual issue. The use put by the appellants of
their accounts shows without doubt that they do have other accounts, although
maybe none locally. The second appellant, which is the commodities trader, does
not hold a foreign currency account with the Bank. There is no indication that it uses
its current account as a trading account. The fourth appellant, which appears to be a
manufacturing company, only has a money market account with the Bank and not a
business account.43 And Bredenkamp’s accounts were used for mundane matters
only.
[58] The appellants also have a serious problem with causation. It is the listing
(fair or unfair) that ‘unbanked’ the appellants, and not the closing of the accounts. Ms

42 Dikgang  Moseneke loc cit.
43 An affidavit of Mr Bezuidenhout filed by the Bank refers to a current account held by the fourth
appellant with number 023390778 which was once used to transfer a large amount to a bank account
held by the second appellant in Switzerland. The current account has not been referred to in the
notice of motion or in the relief now sought. Its status is unknown.

Ina Steyn of Absa Bank testified that the fact that the account of an aspirant
customer was closed by another financial institution is an important factor to
consider when deciding whether or not to accept the client. However, it is the reason
rather than the fact of closure that would be its concern. Absa, she said, regards an
applicant’s status on a credible SDN list as a critical factor in reaching its decision. In
the ordinary course of events Absa checks whether an applicant is an SDN. She
mentioned that Absa had already refused the appellants banking facilities in view of
the listing.44 There is no suggestion that this was done because the accounts were
closed.
[59] The fact that banks may not wish to provide listed entities with banking
facilities is unrelated to the fact that there are only a few major banks in the country.
A proliferation of banks would not have made any difference. The impact on the
appellants was not caused by the decision to close the accounts; it was caused by
the listing. It is therefore not a case of the abuse by the Bank of private power that
approximates public power.
[60] I find it difficult to perceive the fairness of imposing on a Bank the obligation to
retain a client simply because other banks are not likely to accept that entity as a
client. The appellants were unable to find a constitutional niche or other public policy
consideration justifying their demand. There was, accordingly, in the words of
Moseneke DCJ no ‘unjustified invasion of a right expressly or otherwise conferred by
the highest law in our land’.45
[61] The appellants also submitted that the Bank’s decision was procedurally and
substantively unfair. This argument was built on quicksand because they abandoned
an administrative law review; they do not suggest that the common law must be
developed so that a party who is entitled to cancel a contract has to give the other
party a hearing before cancellation; and they do not rely on a tacit term to that
effect.46 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

44 The appellants filed affidavits by Mr Marius Nel who is also an Absa employee. His evidence is
somewhat different but it is clear that he is not qualified to speak about these matters. Furthermore, to
the extent that his evidence is different, her evidence has to be referred on ordinary motion principles.
45 Dikgang  Moseneke loc cit.
46 Such a tacit term was found to exist in the circumstances in De Lange v ABSA Makelaars (Edms)
Bpk  [2010] ZASCA 21 (23 March 2010).

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.
[62] The next submission was that the Bank had less drastic steps available: It
could have asked for undertakings from the appellants to reduce its risks or could
have kept their accounts under surveillance for questionable transactions. Whether
these options were viable is doubtful but they cannot be related to the relief
presently sought, namely that the Bank may not cancel without good cause.
[63] The appellants objected to the Bank’s reliance on Bredenkamp’s reputation.
The first objection was that the facts were not true but, as indicated, the Bank did not
seek to rely on the factual accuracy of the reports but on Bredenkamp’s reputation
itself. Their other complaint was that a bank is not entitled to take moral
considerations into account when deciding to close an account. The answer is that
the Bank did not make any moral judgment; it made a business decision to protect
its reputation. The appellants then said that banks are inconsistent because some
banks do deal with SDNs. The problem with the submission is that it is destructive of
the appellants’ whole case. It indicates that a listed entity or someone with a bad
reputation is not for that reason necessarily unbanked. Lastly, in this context, the
appellants object to the Bank’s reliance on facts determined after its decision to
close the accounts. There is no merit in the objection. A 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.47 Counsel could not give a reason why the rule
does not apply or whether and how it should be developed.
[64] This leaves for consideration the question whether the Bank had (in terms of
the relief presently sought) good cause to close the accounts. The Bank had a
contract, which is valid, that gave it the right to cancel. It perceived that the listing
created reputational and business risks. It assessed those risks at a senior level. It
came to a conclusion. It exercised its right of termination in a bona fide manner. It

47 Matador Buildings (Pty) Ltd v Harman 1971 (2) SA 21 (C); [1971] 1 All SA 381 (C); Putco Ltd v TV
& Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809 (A) at 832; Datacolor International (Pty) Ltd v
Intamarket (Pty) Ltd [2001] 1 All SA 581 (A), 2001 (2) SA 284 (SCA) para 28.

gave the appellants a reasonable time to take their business elsewhere. The
termination did not offend any identifiable constitutional value and was not otherwise
contrary to any other public policy consideration.  The Bank did not publicise the
closure or the reasons for its decision. It was the appellants who made these facts
public by launching the proceedings and requiring the Bank to disclose the reasons.
[65] The appellants’ response was that, objectively speaking, the Bank’s fears
about its reputation and business risks were unjustified. I do not believe it is for a
court to assess whether or not a bona fide business decision, which is on the face of
it reasonable and rational, was objectively ‘wrong’ where in the circumstances no
public policy considerations are involved. Fairness has two sides. The appellants
approach the matter from their point of view only. That, in my view, is wrong.
[66] The appeal is accordingly dismissed with costs, including the costs of two
counsel.

_____________________
L T C Harms
Deputy President

APPEARANCES:

M Brassey SC (with him K Hopkins)

APPELLANTS:

Instructed by Wertheim Becker Inc, Johannesburg

E G Cooper Majiedt Inc, Bloemfontein

1st RESPONDENT:
J J Gauntlett SC (with him R M Pearse)

Instructed by Deneys Reitz Attorneys, Johannesburg

Webbers, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:  The Registrar, Supreme Court of Appeal
Date:  27 MAY 2010
Status: Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

J A BREDENKAMP AND OTHERS v STANDARD BANK OF SA LTD
The Supreme Court of Appeal today dismissed an appeal by Mr Bredenkamp and
two companies and a trust in which he has interests against a judgment of the high
court. The appellants had sought an order preventing the Standard bank of closing
their accounts with the Bank. The high court had dismissed the application. It was
accepted that the Bank had, in terms of its contract with the appellants and in terms
of the common law the right to close the accounts with reasonable notice.
However, the appellants contended that the closing was unfair because it was
unlikely that they would be able to obtain other banking facilities. They relied on a
Constitutional Court judgment for the proposition that a party is not entitled to use its
contractual rights if it would be unfair to the other party.  The court held that the
appellants had misconstrued the CC judgment and, in any event, the closing of the
accounts was not unfair under the circumstances of the case.

---ends---