Judgement on noseweek decision handed down

Publication of the fact that a person is a client of a specific bank does not infringe privacy rights, according to Cape Deputy Judge President Jeanette Traverso.

She made the finding in a written judgement, handed down this week, on a bid by FirstRand Bank to prevent investigative magazine noseweek publishing the names of clients involved in an allegedly dodgy offshore tax scheme.

Traverso heard and rejected the application for an interdict last month, but did not give reasons at the time.

The magazine, which according to Traverso had insinuated that FirstRand was run like a brothel, had also labelled the bank’s management ”pirates”.

It claimed that the bank, through its former offshore division Ansbacher, was running a fraudulent tax-evasion scheme for wealthy South African clients and promised to publish a ”choice selection” of their names.

FirstRand brought the application as what it said was a class action on behalf of the as-yet-unnamed clients, saying it wanted to protect their and its own right to privacy.

Traverso said the confidential nature of the relationship between a bank and its client had been recognised by legal authorities and by the law.

However, while the duty not to disclose rested with the bank, the privilege not to have the details of its dealings with the bank disclosed belonged with the client.

”It is therefore the client alone who can invoke this privilege,” she said.

”I do not believe that the publication of the fact that a person is a client of a specific bank can ever infringe the right of privacy of either the bank or the client.”

She said FirstRand had not shown it had the legal standing to appear for the clients in a class action, nor was there any indication that clients had been given an opportunity to ”opt out” of the action.

The clients could sue the magazine if they were defamed.

”Because each individual client will have recourse to interdict the publication of defamatory material or to claim a solatium for the allegation of defamation, this is not a situation where a class action will be apposite,” she said.

The magazine has published a list of scores of names in its November issue, which is already on sale. — Sapa

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