IN THE HIGH COURT OF SOUTH AFRICA (EAST LONDON CIRCUIT LOCAL DIVISION)

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1 IN THE HIGH COURT OF SOUTH AFRICA (EAST LONDON CIRCUIT LOCAL DIVISION) Case No: 454/2005 In the matter between: JOHN PAGE PLAINTIFF and FIRST NATIONAL BANK MICHAEL M RIES FIRST DEFENDANT SECOND DEFENDANT JUDGMENT DAMBUZA J: 1. The plaintiff seeks damages against the defendants in the amount of R His claim arises from advice given to him by the second defendant in When the events leading to this action occurred, the plaintiff was a farmer, farming in livestock near East London. He held several

2 2 banking accounts with the first defendant. The second defendant was, at the time, employed by the first respondent as a financial consultant and investment advisor. In this capacity the second defendant had access to details relating to bank accounts of clients of the first defendant, including the plaintiff. During 2002 the plaintiff had funds invested in a money market account that he held with the first defendant. The second defendant advised the plaintiff to invest R of this money offshore in order to get a better return than on the money market investment. The investment was to be facilitated by the first defendant (through the second defendant). On 11 November 2002 the plaintiff invested the sum of R in three separate offshore portfolios, being Investec Euromoney (40%); Sterling Money (20%) and US Dollar Money (40%). 3. When the plaintiff redeemed the investment on 31 October 2003, the capital had depleted to R due to a combination of currency fluctuations and charges that were levied when the investment was made. 4. The plaintiff s case is that the defendants had held the second defendant out to the public as a competent financial consultant and investment advisor and placed his services at the disposal of the public for reward. The second defendant therefore owed the plaintiff a duty of care when giving him advice on the investment. Having been alerted to the fact that the plaintiff would require the funds within a short 2

3 3 period, he (the second defendant) failed in his duty of care by giving the advice that the plaintiff invest the funds offshore. The second defendant, so contends the plaintiff, was aware or ought to have been aware that it was not advisable to invest funds offshore on a short term basis. 5. The defendants case, as set out in the plea, is that the second defendant presented various investment portfolios to the plaintiff whereupon the plaintiff, acting on the advice of his accountant, Patrick Vice and bookkeeper, Glen Page, chose the investment portfolios set out in paragraph 2 above. Further, so contend the defendants, the plaintiff declared that he was aware of the risks associated with the chosen portfolios and that the initial and exit fees, including penalties payable in case of early surrender, were set out in the application form for the investment. The defendants further contend that neither of them acted as investment portfolio managers and they did not assume liability for the performance of the investment It was common cause at the trial that generally, offshore investments are made on a long term basis in order for the investment to absorb and wear off the negative effects of currency fluctuations, and that funds can be redeemed when it is to the best advantage of the investor. It was further not in dispute that offshore investments are 1 Clause 6.5 of a document termed client confirmation document signed by the plaintiff and second defendant on 11 November 2002 states that Neither FNB nor its financial consultant is an investment portfolio manager. We do not assume responsibility for the performance of investments, nor for the timing of portfolio changes.... 3

4 4 costly because of bank charges, commissions and management fees payable in respect thereof. In this case, the bank charges, commission and management fees paid by the plaintiff to the first defendant were R Of this amount 0,25 % (R ) went to Momentum Wealth, through which the overseas investment was made, 2,5% (R ) was the financial advisor fee and the balance was VAT payable on the fees. Consequently the capital invested was R Thane Andre Niemand, a financial consultant practicing in East London, gave evidence, as an expert witness, on behalf of the plaintiff. He testified that the plaintiff consulted with him subsequent to the suggestion that he invest offshore. He advised the plaintiff that it was not prudent to invest funds abroad for a short period as the plaintiff might have to redeem the funds when the exchange rate was not favourable. Niemand s uncontested opinion was that a period of a year and even two years was too short for an offshore investment. He opined that the second defendant should have undertaken a complete profile of the plaintiff and conducted a needs analysis to carefully consider the plaintiff s financial needs and cost implications prior to advising the plaintiff to invest the funds abroad. Even if a case could be made for an offshore investment, it would have been more prudent to invest directly with financial institutions abroad to avoid secondary costs, rather than invest through Momentum Wealth (Pty) Ltd, as was 4

5 5 done in this case. But the appropriate advice to the plaintiff should have been that he continue with the money market investment. 8. At the trial, the second defendant denied that the plaintiff told him that he would need to recoup the investment within a year or in a period less than a year as the plaintiff testified. According to the second defendant the plaintiff had only advised that he did not want to invest for a long time, that he intended to buy a property in one to three years and that any proposed investment should be redeemable on short notice. 9. The evidence by John Thompson, the estate Agency who sold the property to the plaintiff was that by September 2002 the house in question was already under construction and that registration of transfer thereof was anticipated for April The defence that the plaintiff is bound by the terms of the investment agreement and that the defendants never assumed liability for performance of the investment does not, in my view, afford the defendants any assistance. Mr Rorke who appeared on behalf of the plaintiff submitted that the clause in question does not constitute exclusion of liability. Even if it does, so argued Mr Rorke, clauses of this nature have to be interpreted restrictively. I agree with this submission. According to AJ Kerr in The Principles of the Law of Contract 6 th Edition at 435, the intention of the parties to an 5

6 6 agreement in which there is exclusion of liability should be sought and, permissible though it may be to contract out of liability for gross negligence, this should not readily be assumed. A contract needs to be closely examined before one can say that exemption from such negligence is agreed upon. See also: Christie, The Law of Contract in South Africa, 5 th Edition at 184. In this case the very same document in which there appears to be exclusion of liability also anticipates that the first defendant may be held liable for professional negligence of its consultants. 2 Read against this clause, the exclusion of liability for the performance of the investment becomes ambiguous. It seems to me that if there was little or no exercise of skill and care to determine whether the offshore investment was likely to yield a better return than the money market account, the defendants cannot simply hide behind the exemption clause. To hold differently would, in my view, make a mockery of the second defendant s expertise and the duty of care on which the plaintiff is entitled to rely. 11. The contention by the defendants that the investment was made on the advice of persons other than the second defendant can also not stand. Even if I were to accept that the plaintiff discussed the investment with Page and Vice there is, in my view, no sufficient evidence to conclude that it is those discussions that led to the investment. In any event it is not in dispute that it is the defendants that owed the plaintiff a duty of care. It is the duty of the agent, in the case of the authority entrusted to him, to act 2 Clause 6.3 of the client confirmation documents provides that FNB is insured against claims against it, arising from professional negligence, errors and omissions on the part of its financial consultants. 6

7 7 with reasonable and proper care, skill and diligence.... See: Durr v ABSA Bank Ltd & Another 1997 (3) SA 448 (SCA) at 9d. Consequently, and as Mr Rorke submitted, any advice regarding the investment which the plaintiff may have received from either Niemand, Page or Vice, did not relieve the defendants of their duty of care to the plaintiff. 12. During argument it was conceded, correctly in my view, that the plaintiff had not been a good witness. His evidence was contradictory in many respects. He could not explain why, in his initial correspondence to the first plaintiff complaining about the investment, he had stated that the second defendant had proceeded with the investment without his (the plaintiff s) authority. He unsuccessfully denied that he had sought and obtained advice from Niemand about the investment. His evidence that he never discussed the investment with Page and Vice does not accord with other acceptable evidence; for example, the second defendant s visit to Page and Vice in connection with the investment could only have been at the instance of the plaintiff. And both Page and Vice testified that the plaintiff had told them about the proposed investment. Nevertheless, my view is that not all of the plaintiff s evidence falls to be rejected. On many issues his evidence and the evidence of the second defendant was the same. Their evidence points to the fact that the plaintiff s instruction to the second defendant was that the investment was to be conservative or low risk, the capital was to be retrievable on short notice and there should be a return on the investment. The second defendant had persuaded the plaintiff that 7

8 8 the offshore investment would yield a better return than the money market investment. 13. I consider apposite the remarks made by Schultz JA in Durr s case (supra). At 468 the learned Judge cites, with approval, the following dicta in Van Wyk v Lewis 1924 AD 438 at 444 that: It was pointed out by the Court, in Mitchell v. Dixon (1914, A.D., at p. 525), that a medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill, but he is bound to employ reasonable skill and care. And in deciding what is reasonable the Court will have regard to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs. The evidence of qualified surgeons or physicians is of the greatest assistance in estimating that general level. (Own emphasis)..... But the decision of what is reasonable under the circumstances is for the court; it will pay high regard to the views of the profession, but it is not bound to adopt them. 14. In Poultney v ABSA Insurance Brokers (Pty) Ltd (an unreported decision of Kroon J in the Eastern Cape Division, delivered on 29 May 2002, Case No 430/2000 the learned Judge remarked as follows at paragraph 41 of the judgment: What is the standard of skill applicable? Again, having regard to the same features referred to in the previous para., and transposing the approach in Durr s case to the present, the standard to be applied is not that of the average or typical insurance/financial adviser, but that of an adviser employed 8

9 9 as an expert by a company, with country-wide branches, professing insurance and investment skills and offering expert advice thereanent; i.e., the higher test. I would record that even if the lesser test of the standard of the average or typical adviser were to be applied, the conclusion in the matter would still be the same: the conduct relevant for the purposes of the present matter, identified below as having been the conduct that would reasonably have been expected of an adviser on the stricter test referred to above, would also reasonably have been expected of the average or typical adviser. 15. Rule 10 (2) (a) of the Insurance Brokers Registration Council Rules 3 provides that a firm (of Insurance Brokers) shall not recommend a transaction in a relevant investment to an advisory client unless it has reasonable grounds for believing that the transaction is suitable for the client having regard to the facts known, or which ought, reasonably, to be known to the firm about the investment and the client s other investments and personal and financial situation. It is my view that the position held by the second defendant is comparable to that of an Insurance Broker. The principle expressed in this Rule is, in my view, relevant in the determination of the degree of skill and care that is required of persons in the position of the second defendant. Under cross-examination the second defendant could not deny that the investment was not suited to the plaintiff s circumstances and his intention to recoup the investment within a short period. A careful analysis of the plaintiff s needs and circumstances prior to giving the advice would have revealed this fact. There is no evidence that the 3 Ivamy; General Principles of Insurance Law 5 th Edition at

10 10 second defendant did such analysis. I cannot find the basis on which he concluded that the offshore investment was suitable for the plaintiff. 16. Much was made of the fact that, in the summons the plaintiff has pleaded that the funds would be required within 12 months whereas his evidence was that he told the second defendant that he would require the funds in three to four months. Mr Combrink submitted that the evidence of the second defendant that the plaintiff had told him that he intended to buy property with the funds in one to three years, as supported by the investment documents, should be accepted. My view is that even if the plaintiff instructed the second defendant that he would require the funds in one to three years, the advice to invest offshore was a breach of the second defendant s (and therefore the first defendant s) duty of care to the plaintiff. An analysis of factors that would affect the investment in the event of withdrawal thereof in a year remained part of the exercise that the second defendant had to conduct to determine suitability of the investment to the plaintiff s needs. 17. The second defendant admitted, during cross-examination, that if the funds had remained in the money market, the plaintiff would not have suffered loss as he did with the overseas investment. Instead he would have continued to earn interest on the capital. Having regard to all the above factors, I am of the view that the second defendant (and 10

11 11 therefore the first defendant vicariously), failed in his duty to carefully assess the plaintiff s needs and advise him accordingly. 18. The failure by the defendants to exercise the required care occasioned the loss suffered by the plaintiff. In the summons the loss suffered by the plaintiff is set out as: 18.1 Loss of capital ( less R Commission and other charges paid R Interest which would otherwise have been Earned on the Money Market Account (for period of 354 days) R R At the trial the plaintiff testified that he had in fact received R and not R During argument Mr Combrink submitted and Mr Rorke conceded that the loss of R (charges) was already included in the loss of R Consequently the portion of the claim for loss of capital falls to be reduced to R and the amount of R falls away. The total loss (including interest set out at para 19.3 supra) then becomes R

12 Mr Combrink submitted that plaintiff had failed to prove the portion of the claim representing interest that the plaintiff would have earned on the money market account. 21. In the summons the plaintiff sets out the interest he would have earned on the funds as R , on the following interest rates as at: November % June % September % October % and October % 22. As I have stated it is common cause that the plaintiff would have continued to earn interest on the money market account. I find no reason why I should not accept the above as the rates at which the plaintiff would have earned interest on the capital invested in the money market account. Consequently: 1. The defendants are ordered to pay to the plaintiff jointly and severally, the one paying, the other to be absolved: 1.1 The amount of R ; 12

13 Interest on the said amount at the prevailing legal rate from 31 October 2003 to date of payment; 1.3 Plaintiff s costs of suit, such costs to include the qualifying expenses of the witness, Thayne Niemand. N DAMBUZA JUDGE OF THE HIGH COURT Plaintiff s Counsel: Adv Combrink Plaintiff s Attorneys: Bax Kaplan Mbandazayo Inc Clevedon House, 2 Clevedon Road, Selborne EAST LONDON: Ref: SLN CLARKE/eh/KW06031 Defendants Counsel: Adv Rorke Defendants Attorneys: S G Attorneys c/o Russell Inc 8 Graham Road Southernwood EAST LONDON: Ref: MR L VIVIER/Taryn 13

14 14 Heard on: November 2006; June 2008 Delivered on: 16 October

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