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The long shadows of the Bredenkamp judgment mean that nobody is safe

WHEN JOHN Bredenkamp left the hallowed chambers of the Court of Appeal in 2010, he must have been as flummoxed as all the people who heard the thud of the gavel as it pronounced the fate of his banking account. File image

WHEN JOHN Bredenkamp left the hallowed chambers of the Court of Appeal in 2010, he must have been as flummoxed as all the people who heard the thud of the gavel as it pronounced the fate of his banking account. File image

Published Apr 22, 2022

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By Bheki Gila

WHEN JOHN Bredenkamp left the hallowed chambers of the Court of Appeal in 2010, he must have been as flummoxed as all the people who heard the thud of the gavel as it pronounced the fate of his banking account.

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He had a few options, none of which were easy and practicable. By now, arguably, he would either have long applied for and opened his own commercial bank or ever so hurriedly, departed from the planet of the ordinary. Worse still, bereft of other reasonable choices, have moved to Zimbabwe. His confusion, not limited to him alone, liberally spread and quickly reached a multitude of innocent others.

In its stride, the judgment fostered two broad strands of interpretation of the musings of the learned ones. They quickly ossified into two opposing camps.

The first was whether or not the court, notwithstanding all the laws regulating the bank and client relationships, permitted the appellant bank to terminate Bredenkamp’s banking account for little or no reason at all and without accountability.

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The second, as perplexing as the first, was whether or not the court only permitted the bank to consider the extraordinary circumstances of Bredenkamp and, when found to be violating the terms of his contract with the bank, accordingly allowed it to terminate the contract.

The logical consequence of this conundrum was that clarity ought to be sought presumably from the authors of the ambiguity itself. A new reality emerged as a result.

Every time a bank terminates anyone’s account, the aggrieved holder should somewhat trudge contemplatively to Bloemfontein and thereat sup with the wise ones for consultation whether or not the bank was right to do so.

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Or, in the alternative, dutifully file a complaint with the appointed regulators. But ,then again, what’s the point?

Our bankers, that unique species of our democracy, were celebrating in raucous debauchery.

A legal ambiguity had been gifted to the custodians of the sovereign’s money including the confidence of its denizens’ capital wealth.

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The third crisis of interpretation was that of exceptionalism.

The village griot was vociferous in pronouncing that thenceforth all the laws of the republic would be affected by this judgment whether or not Parliament amends them to accommodate the pronouncements of the learned ones.

It is the role of those agencies appointed by the Constitution to regulate the banks that remain curiously uncertain.

To be sure, they are many. The prima partes is the Reserve Bank, or at least that part of it that is still owned by the people, including all its constitutional prescripts.

Following in abiding tow are the Banking Ombudsman, the Financial Services Conduct Authority and the Financial Intelligence Centre.

The abrupt insouciance of John Bredenkamp shook them to a deafening silence.

The Reserve Bank and its 800 private shareholders are unsure of what to do. So is the Banking Ombudsman who is funded by the Banking Industry Association.

In the ensuing bedlam, the Financial Services Conduct Authority would not know where to begin.

When regulators don’t regulate, quite the same way as municipalities fail their taxpayers, should the aggrieved citizen sue by way of mandamus, compelling the regulator quite the same way a taxpayer could compel the municipality to perform its tasks as obligated by the relevant statutory instruments and various other by-laws to which they account?

There are ample reasons to distinguish or qualify the implementation of the Bredenkamp judgment, vagueness being one of them.

In the ancient saying of my village, justice does not reside in the judgment. It is in its consequences.

If its implementation reach and social tentacles render its appreciation intractably absurd, surely that would not have been the intent of the learned justices.

Although it is common cause that the Bredenkamp circumstance and its unique factors resulted in this judgment, there is however no contestation that it was not in the contemplation of the appellate justices to birth a gross absurdity.

Furthermore, there is nothing in the judgment that suggests that Bredenkamp is a carte blanche exemption of the banks from being regulated, nor is it an instruction to Parliament to change the laws of banking and banking regulation so that a legal species, of a unique kind unregulated by any laws, would roam wild in our social universe.

The Bredenkamp judgment sought to weigh in on a battle that ought to be fought elsewhere. The bank wanted to take away the right of the Financial Intelligence Centre Act to consider any risk, reported by the bank, which a client’s conduct posed.

I mean all risks without exception, as the peremptory language of the legislation establishing that organisation determines.

Bredenkamp, the respondent, was saddled with an albatross only fitted for the regulators. I mean all of them. And Bredenkamp became everybody.

The only challenge remaining is for the High Court to provide procedures of implementation of Bredenkamp.

If we are all terrified by the unqualified long shadows of the Bredenkamp judgment, so should the justices and whosoever else they administer justice on their behalf. Nobody is safe.

Ambassador Bheki Gila is a Barristerat-Law

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