Case Comments: Much Ado About Nothing? Legal Principles on Money, Banks and their clients after Joint Stock Company Varvarinskoye v ABSA Bank Ltd

• Jurisdiction: South Africa
• Author: Johann de Jager
• Published date: 25 May 2019
• Date: 25 May 2019
• Pages: 127-140

Case Comments

Much Ado about Nothing? Legal Principles on

Money, Banks andTheir Clients after Joint Stock

Company Varvarinskoye v ABSA Bank Ltd

JOHANN DE JAGER

South African Reserve Bank

Pretoria

Research Fellow of the College

of Law

University of South Africa

1 Introduction

Roman-Dutch law, broadly referred to as the common law of South Africa,

constitutes an authoritative subsidiary source of law in our legal system and is

utilised in the interpretation, explanation and application of legal principles,

especially in private law. English law, on the other hand, has had a major

inf‌luence in general on South African commercial law, particularly in banking

law. (See WG Schulze ‘The Sources of Southern African Banking Law – A

Twenty-First Century Perspective (Part I)’ (‘Schulze Part I’) (2002) 14 SA

Merc LJ 438 at 458 and WG Schulze ‘The Sources of South African Banking

Law – ATwenty-First Century Perspective (Part II)’ (‘Schulze Part II’) (2002)

14 SA Merc LJ 601; IPF Nominees (Pty) Ltd v Nedcor Bank Limited &

Basfour 130 (Pty) Ltd 2002 (5) SA 101 (W); ABSA Bank Limited v IW

Blumberg & Wilkinson 1997 (3) SA 669 (A); and First National Bank of

Southern Africa Ltd v Perry NO [2001] 3 All SA 331 (A). See also Michael

Blair QC, Ross Cranston MP, Christopher Ryan & Michael Taylor

Blackstone’s Guide to the Bank of England Act 1998 (1998) at 108 for

similarities between the Banking Act 1987 (c. 37) in the United Kingdom and

the Banks Act 94 of 1990 (‘Banks Act’) in SouthAfrica.)

Yet South African banking law in general does not constitute a coherent

and restricted f‌ield of law as may, eg, be evidenced by the multifaceted nature

of the bank-client relationship. It invariably involves various types of contract

such as mandate, loan for consumption, depositum and deposit-taking, all of

which include aspects of private law. Banking law therefore mostly depends

on the application of general legal principles to the peculiar facts of the matter

under consideration. So Roman-Dutch law also applies in municipal law to

matters of a banking nature mostly when considerations of private law are

127

(2010) 22 SA Merc LJ 127

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