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[2018] ZAGPJHC 491
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Munters (Pty) Ltd v Serote and Another (4004/2014) [2018] ZAGPJHC 491 (26 March 2018)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 4004/2014
In
the matter between:
MUNTERS
(PTY) LTD
Plaintiff
And
MONENE
MAHLATSI SEROTE
KGOTHATSO
SEROTE
1
st
Defendant
2
nd
Defendant
JUDGMENT
NCONGWANE
AJ:
1.
INTRODUCTION
1.1 The plaintiff was an
employer of the first defendant until the latter resigned from such
employment on the 3
rd
of June 2013. The first defendant is married to the second defendant
in community of property. The parties are litigating about
the sum of
money totalling R934 387.53 that was paid by the plaintiff to the
home loan account of the first and second defendants
(“the
defendants”) held in the name of the second defendant at the
Standard Bank, due to the fraud or theft plaintiff
alleges was
perpetrated against it by the first defendant.
2.
In its particulars of
claim, which were met with a plea of bare denial, the plaintiff’s
claim against the defendants, is based
on the following:
2.1
That the first defendant, whilst in the employ of the plaintiff, had
perpetrated a series of thefts and / or frauds on the plaintiff

whereby she intentionally and unlawfully caused sums of money to be
transferred from the plaintiff’s bank account at Nedbank
to a
Standard Bank home loan account in respect of immovable property
registered in the second defendant’s name,
2.2
The first defendant fraudulently, intentionally and with the aim to
defraud the plaintiff created various fictitious company

documentation on the strength of which the plaintiff made payments,
2.3
These misrepresentations were to the knowledge of the first defendant
untrue and were made with the intention that the plaintiff
act
thereon and caused the plaintiff to transfer monies to the Standard
Bank home loan account believing that payment was being
made to its
suppliers thereby causing the plaintiff to suffer damages in the
amount of R 841 332.35, and
2.4
Due to the first defendant having fictitiously crated company
documentation as set out in subparagraph 2.2 above, caused the

plaintiff to make payment of the amount of R93 055 18 to the said
Standard Bank account home loan in a
bona fide
and reasonable
belief that it was paying a supplier.
3.
As pointed out above, the
second defendant’s indebtedness arises from his marriage in
community of property to the first defendant
and due to the second
defendant having been aware of the first defendant’s theft and
fraud thereby being a party thereto.
4.
Plaintiff therefore seeks
judgement against the defendants jointly and severally, the one
paying the other to be absolved for an
amount of R 938 387.53 being
the amount of damages as set out in the particulars of claim, i.e
Claim A and B.
5.
The
first defendant admits that she was employed by the plaintiff as the
Receptionist and subsequently promoted to a Creditor’s
Admin
Clerk and that she left the employ of the plaintiff on the 03
rd
June 2013. Other than this admission, the defendants have filed a
plea of bare denial. This type of a plea is not sufficient. In
an
attempt to make up for a bare denial, the defendants, during the
course of the trial attempted to create various versions on
which
they wished belatedly to base their defence but such versions still
had to be supported by evidence.  It is trite that
a plea to the
plaintiff’s declaration must set  out  whatever
defence  defendants  rely  upon.
The
purpose of pleading being to clarify the issues between the parties,
[1]
the allegation in the plea
must be of sufficient precision to enable the plaintiff to know what
is the case it has to meet.
[2]
The defendants cannot therefore, rely upon a defence which is not
pleaded, or which she or he is not allowed to incorporate into
the
plea by an amendment. A plea cannot be allowed to direct the
attention of the other party to one issue and then, at the trial,

attempt to canvas another
[3]
.
6.
In
general there are four ways in which the defendant can answer the
plaintiff’s allegations in his plea, namely, it can traverse

the plaintiff’s allegations, confess and avoid, file a dilatory
plea or a plea in abatement which raises an objection to
the
proceedings without providing an answer to the merits or can file a
special plea. A plea of a bare denial should therefore
be deemed to
be a irregular step and the plaintiff is entitled to act in
accordance with Rule 23 or 30 of the Uniform Rules. In
this case, the
plaintiff failed to make use of this remedy. A defence must be
pleaded as well as proof, for the courts to sit and
try the issue
raised by the pleadings. A defendant who has missed pleading a
defence, must raise a defence formally and have it
placed on record.
If no defence is raised, as a general rule, it cannot be adjudicated
upon. The defendants by filing a plea of
bare denial are regarded to
have joined issues on the merits, requiring the plaintiff to prove
its cause of action. At the commencement
of the hearing, plaintiff’s
counsel submitted that plaintiff no longer intends to pursue any
interlocutory court applications
to compel the defendants to comply
with the rules in so far as the lack of defence or forcing the
defendants to plead on the merits
since the defendants have been
contumacious to two court orders directing them to discover certain
documents on bank statements
as well as to provide further
particulars to the plaintiff.
7.
Plaintiff proceeded to
lead evidence in support of its claim. On the other hand, the
defendants vacillated between various versions.
The insufficiency of
the bare denial and the congency of the defendants evidence as
against whether the plaintiff has succeeded
in discharging its onus
on a preponderance of probabilities must be determined.
8.
Defendants’ various
versions amounted to the following:
8.1
That the plaintiff ‘s
attorney did not have the required authority to act for the
plaintiff, despite the plaintiff’s
attorney having filed a
reply and a written mandate in terms of Uniform Rule 7 on the 27 May
2014. And that the previous managing
director of the plaintiff, Mr
John Anderson, was not authorised by a company resolution to testify
on the plaintiff’s behalf.
These two versions were wisely
abandoned by the defendants counsel.
8.2
That the first defendant was never apprehended of any wrongdoings
whilst in the employ of the plaintiff, despite there being
no
allegations of such nature by the plaintiff , which point was not
seriously pursuit by the defendants.
8.3
That the management of the plaintiff (the ‘managing director’,
‘the financial manager’ and a certain
‘Ms Kogie
Pillay’) had acted recklessly and negligently in that they did
not discover the fraudulent activities allegedly
perpetrated by the
first defendant earlier and to put a stop to it. The defendants also
blame the plaintiff’s auditors, Ernest
& Young for not
discovering these fraudulent activities earlier, before the first
defendant left the employ of the plaintiff
and during their annual
audits. This contrived defence assumes an apportionment of damages
based on the contributory negligence
of the plaintiff. Such a defence
must, however, be pleaded and the appropriate relief of apportionment
must be claimed in the plea.
This was not done. Apportionment would
in any event, not be available to the defendants as the plaintiff’s
claim in based
on a delict intentionally committed
[4]
-
being fraud and theft.
8.4
That the second defendant was never employed by the plaintiff and was
at all times unaware of any fraudulent activities. He
did not receive
any queries, a letter of demand or telephone call from the plaintiff
relating to its claim. And that both the defendants
have never
received any monies from the plaintiff, and
8.5
Various other versions that the plaintiff had to encounter for the
first time as the trial progressed, either in examination
in chief or
during cross examinations. These versions were the defendants’
methods of raising defences to the plaintiff’s
claim.
9.
THE PLAINTIFF’S
EVIDENCE AND THE DISCHARGE OF THE ONUS
9.1
The plaintiff’s witnesses, Mr John Andersen (“Andersen”),
the Managing Director of Munters Africa at the time
(from 2004 to 18
November 2013), Mr Phillip Dickinson (“Dickinson”), the
current Managing Director of Munters Africa
and Mr Waren Webb
(“Webb”), the current Financial Manager of Munters Africa
testified on behalf of the plaintiff.
10.
Mrs Lucy Grootboom
(“Grootboom”), the Branch Manager of Standard Bank,
Greenstone Branch was served with a
subpoena
duces tecum
and she
introduced the Standard Bank home loan statements ( for the period
2
nd
February 2011 to 2
nd
August 2013) of the second defendant, Mr KL Serote and these were
marked Exhibit A. She testified on the second defendant’s
home
loan statements. Grootboom also introduced a letter on the Standard
Bank Greenstone’s letterhead addressed to the plaintiff’s

attorney dated the 8
th
September 2016. This letter was introduced as Exhibit C and her
evidence on the letter was heard.
10.1
A bundle of documents representing colour copies of the original
fictitious invoices and change of banking details was introduced
by
the plaintiff to assist the court with the visualisation of the
evidence surrounding Andersen’s blue stamp. This bundle
consist
of fifteen pages that were marked Exhibit B.
11.
Andersen
testified in detail and the
relevant evidence of his summary went in the following:
11.1
He holds a qualification in Mechanical Engineering and was employed
by the plaintiff in June 1994 as a Sales Manager. He worked
at the
plaintiff’s Humi Cool Division, thereafter, in the
Dehumidification Division in Johannesburg. In 1999 he was promoted
to
a General Manager of the plaintiff. During 2001 to 2004 after he had
a stint in Europe, he returned to RSA and took up a position
of the
Managing Director (“MD”) of Munters, responsible for
South Africa as well as for the Sub-Saharan Africa. He
held a
position of an MD until he resigned on the 18 November 2013. His
period as an MD was stated by him to have been well in
excess of 9
years, being April 2004 until 18 November 2013.
11.2
He testified that he knows the first defendant as an employee of the
plaintiff, commencing in 2005, first as a receptionist
and in 2007
promoted to Credit / Admin Clerk. As the plaintiff operated an
enterprise resource package incorporating financial
and sales data
and transactions, her duties as the only Creditors Clerk was to load
the details of supplier invoices and reference
payables against
purchase orders which were prepared and generated by the plaintiff
and reflecting amounts to be paid by the plaintiff.
Simply put, she
had to compile documents for payments to be made by the plaintiff.
And this was done on a daily basis. She would
prepare documents for
payments as provided to her by her colleague, Kogie Pillay
(“Pillay”), the Office Administrator
and a Debtor’s
Clerk. She would attach the relevant supplier information, proof of
delivery / supply of services and prepare
the cheque requisition
forms for payment by the plaintiff to all the relevant suppliers.
Payments to the suppliers were made by
the Financial Manager using
banking details of the supplier, after verifying the document
complied by the first defendant. As a
Managing Director, he received
and checked the documents from the first defendant and duly stamped
and signed them to authorise
a Financial Manager to pay.
11.2
The first defendant also had to attend to ongoing reconciliations of
the payment documentation under her control. She would
capture and
reference these transactions on the IFC Software System that the
plaintiff operated.
11.3
In the normal course of business Pillay was tasked with generating
plaintiff’s orders to the suppliers and would hand
to the first
defendant all the required documentation to record such orders and
effect payments to the suppliers. During the course
of the trial
these documents were referred to as the “shipping documents”.
11.4
The
first defendant would then take the cheque requisitions to Andersen
for him to approve payment and affix a special blue stamp
thereon
marked with his signature. Once the financial manager receives the
cheque requisition with the blue stamp details of Andersen
on, he
would attend to the payment of the relevant supplier by EFT from the
plaintiff’s Nedbank account to the supplier.
11.5
He
testified that the banking details of the supplier were preloaded on
the system and remained there even though the supplier service
was
not used by the plaintiff. The loading was done by financial manager
by virtue of what has been given to him as accurate information
by
the supplier, as banking details. The suppliers banking details
remained on the system until intentionally removed. Andersen

therefore testified that no alarm bells will go off if payment is
requested to a known supplier of the plaintiff.
11.6
Andersen testified that first defendant knew that the plaintiff was
not using the services of Micor- a division of Super Group
(“Micor”)
at the time because the plaintiff was unimpressed with its services.
The plaintiff was using the services
of Cargo Compass instead.
11.7
The first defendant therefore created which he identified on page 26
of the discovery bundle a fictitious document purporting
to be a
change of banking details of Micor reflecting the second defendant’s
standard bank home loan account details as the
‘new’
banking details of Micor. He described the document as a letterhead
with Super Group Micor, showing what should
be regarded as the
correct banking details from the company in order that the plaintiff
will pay against that document, into the
banking details reflected.
The banking details are the name of company, Super Group, the bank
name was Standard Bank, the branch
code was 004255, the account
number is […]050 and the reference number is […]378. He
testified that this document
does not exist in reality. According to
Mr Andersen the top of the letterhead as against the bottom of the
letterhead come from
an old document and were copied, using a snap
tool of a pdf editor. And he testified that the first defendant,
Monene Serote, created
this fictitious document.
[5]
Grootboom testified that the branch code was that of Standard Bank,
the account number was that of the general Standard Bank ‘bucket

account number’ and the reference number was the same as the
second defendant’s Standard Bank home loan account number
[6]
.
11.8
Thereafter
the first defendant created fictitious invoices purporting to be
invoices from Micor with bank details reflecting the
second
defendant’s Standard Bank’s home loan account details:
the account number is the Standard Bank ‘bucket’
account
number and reference number is the second defendant’s Standard
Bank home loan account number. The first defendant
attached bogus
shipping documents to the invoices that in reality had nothing to do
with the fictitious invoices.
11.9
Andersen
compared the account number reflected on page 26 of the discovered
bundle, the document which he contends was generated
by the first
respondent to the account number from the Standard Bank subpoenaed
documents on page 1 of Exhibit B. It is common
course that the latter
document is the Standard Bank home loan bond account of Mr KL Serote,
the second defendant, with the Standard
Bank bond account number
reflected thereon as […]378 held at the Greenstone Branch of
the Standard Bank and the reference
number on the document is the
same as the Standard Bank’s subpoenaed documents.
11.10
Andersen
further testified that the fictitious invoices on Micor letterhead
which were created by the first defendant, purporting
that services
were rendered by Micor and further attached their company
documentation of normal shipments to the said fictitious
invoices
which would legitimise the claim for payment. Munters had no reason
to question a Micor letterhead bank details change,
the fraudulent
invoices, on what looked like a Micor letterhead, and Andersen
testified that Munters paid for the services of shipments
which it
had actually received but were done by another vendor, which they
were unaware of.
11.11
In
the mean time, Micor rendered services to the plaintiff and on or
about May 2013 Micor demanded payment of an outstanding amount
of R93
055.80 from the plaintiff. Plaintiff on the other hand assumed that a
payment of the same amount has already been made to
Micor as its
records reflected that payment for that sum of money was made. But
this was in July 2013. Andersen states that it
was at the end of July
2013 when he was advised by a certain Mr Anthony Muller that Micor
has requested payment for money and Munters
responded by stating to
Micor that such payment has been done but Muller noticed that payment
has not gone into Micor’s account.
Immediately after a
notification was received from Micor asking for payment, Andersen
testified that the first defendant, probably
in anticipation of
trouble and when the shoe started to pinch, she submitted her
resignation letter.
[7]
After he
was approached by Muller who explained to him that Micor was seeking
payment and whilst Munters records indicated that
payment had been
made into Micor’s account. He stated that it was established
that the letter used with Micor’s banking
details was
fictitious and Micor’s letterhead was used to make Munters
believe that the bank account that they were paying
into was Micor’s.
They further established that payments that were made previously to
Micor went into second defendant’s
bank account and theft and
fraud had therefore taken place. He pointed out all the frauds /
theft or misappropriation by the use
of the fictitious invoices,
documents and fraudulent cheque requisitions.
11.12
He
testified these were generated by the first respondent totalling the
amount of the claim. He stated that plaintiff only discovered
the
frauds and misappropriation in July 2013 and there was no legal basis
for the money to have been paid to the second defendant
as such
payments were not due to him but only occurred by virtue of the
fraudulent change of Micor’s bank account details.
11.13
During
cross examination he again confirmed, (when put to him that the
defendant’s version is that he and the other officials
of the
plaintiff acted recklessly by failing to discover the fraud much
earlier), that the system that protected the plaintiff
was short
circuited or bypassed by the first defendant who presented stamped
fictitious documents with his signature to the financial
manager
creating an understanding to the financial manager that he has
approved the entire transaction. When this happen, according
to
Andersen, the transactions looked authentic. Although the second
defendant played no part on the frauds or thefts but ought
to have
known about the misrepresentation and the theft as the home loan bond
account of the second defendant received the funds.
12
Webb
testified
that the fictitious invoices were so skilfully manipulated
(falsified) that it was impossible to detect that they were
not
legitimate invoices. Webb also testified in detail that the font of
the fictitious invoices is different from the legitimate
invoice from
Micor which the plaintiff had received in May 2013
[8]
.
Webb also testified that the Rand - Dollar and Rand – Euro
exchange wasn’t correctly entered on the fictitious invoices.

Andersen testified that the legitimate logo, the header and the
footer of Micor differed remarkably from the fictitious letterhead

created by the first defendant.
13
The fictitious invoices
that accompanied fictitious cheque requisitions comprised of the
following:
13.1
Cheque requisition dated 18 February 2011 in the amount of R586
981.83 purporting to be payment of three Micor invoices all
dated 11
February 2011 in respective amounts of R 246 924. 43 , R178 793.42
and R 164 263.98. On the cheque requisition it was
typed written to
be “
requested
by Monene Serote”
.
This transaction was referred to by the plaintiff during the trial as
“Fraud 1”
[9]
.
13.2
Cheque requisition dated 3
rd
June 2011 in the amount of R 175 568.00 purporting to the payment of
two Micor invoices both dated 26
th
April 2011 in the respective amounts of R 96 672.86 and R 78 895.14.
On the cheque requisition is was typed written to be “
requested
by Monene Serote”
.
This transaction was referred to as “Fraud 2”.
[10]
13.3
Creditor reconciliation/payment requisition dated 29 May 2012 in the
amount of R78 782.52 purporting to be payment of Micor
invoice dated
the 26
th
April 2012 in the amount of R78 782.52. On the cheque requisition it
was typed written to be “
requested
by Monene Serote”.
This transaction was referred to as “Fraud 3”.
[11]
13.4
On the strength of these fictitious invoices the plaintiff paid the
amount into the second defendant’s Standard Bank
home loan
account. The payment of each and every transaction
[12]
was confirmed by Andersen, Dickinson and Webb.
14
Andersen
testified that as a result of the first defendant having changed
banking details of Micor to that of the second defendant,
the
plaintiff made a further payment to the second defendant in the
mistaken belief that it was paying a legitimate invoice of
Micor. He
testified that the plaintiff was approached by Micor and asked to
utilise their services again. Micor therefore rendered
services to
the plaintiff and were entitled to payment. The plaintiff made
payment to the second defendant in the amount R 93 055.17
on two
invoices that plaintiff had received from Micor
[13]
.
Payment was made from the plaintiff’s Nedbank account on the
10
th
of July 2013. By that date the first defendant had already resigned
from the plaintiff’s employment. Andersen, Dickinson
and Webb
testified that the only reason that the plaintiff started
investigating the frauds committed by the first respondent,
after her
resignation and exit from the plaintiff’s employ was as a
result of Micor’s renewed service delivery to the
plaintiff.
Micor made enquiries why the plaintiff had not effected payment of
its invoices whilst the plaintiff had already paid
the invoices –
only to the second defendant’s home loan account and not to
Micor.
15
Webb testified that it
was only the financial manager who could access the plaintiff’s
bank statements and draw proof of payments
from the Nedbank account.
Webb testified in detail regarding the financial manager’s user
code / ID and username that was
used to access the Nedbank accounts.
Webb also testified that all the proofs of payment and bank
statements were only drawn once
the investigation into the frauds
commenced. He referred to the dates on the proof of payments and bank
statements all being during
July and September 2013.
16.
THE EVIDENCE OF
GROOTBOOM ON BEHALF OF
STANDARD BANK
16.1
Standard Bank was served with a
subpoena
duces tecum
by the plaintiff on the 5
th
of September 2016. And the oral evidence of Grootboom was tendered
the 09
th
of September 2016.
[14]
In the
course of her oral evidence she introduced into the record a letter
dated the 08
th
of September 2016 which was received and marked Exhibit “C”.
16.2
Grootboom testified that the Standard Bank home loan statements were
those of the second defendant Mr KL Serote. Grootboom
also testified
that Standard Bank operates its home loan accounts on a ‘bucket
account’ system which is a general account
to facilitate
payment made by home loan clients. She testified that the ‘bucket’
account is the account to which home
loan clients will make their
monthly deposits.
16.3
She testified that the bucket account number was: 202151050 and
although home loan clients will not know the operation of the

‘bucket’ account they would know the ‘bucket’
account number as a number to which their deposits should
be made.
Their ‘bucket’ account’ was an ‘in house
thing’, a process that was not discussed with clients.
16.4
She testified that in the case of Mr Serote the account number into
which a deposit would be made, will be a ‘bucket
account’
number: […]050 and that reference number to be used to
allocate the payment to Mr Serote’s personal
home loan
account-would be: […]378.
16.5
Grootboom testified that Mr Serote’s account was held at the
Greenstone branch.
16.6
Grootboom read the Standard Bank explanatory letter to the court in
which all her evidence was confirmed. The explanatory letter

confirmed the details of the name of the account as Standard Bank,
the account number as […]050, the branch code as 004255,
and
the reference number as the customer home loan account number.
17.1
The
first defendant’s
evidence regarding her daily duties as the only creditors clerk in
the employ of the plaintiff, the IFS system operated by her
as well
as the list of documentation handled by her was very similar (if not
exactly) to that of Andersen. The first defendant
however stated that
Pillay was her supervisor and that Pillay had checked all her work
before Pillay took it to Andersen for blue
stamp approval and to the
financial manager for payment. This evidence, is, however not of real
consequence as the damning evidence
remains: that the second
defendant’s Standard Bank detail appear on all the fictitious
cheque requisitions and fictitious
invoices.
17.2
She
confirmed that the second defendant is her husband and they got
married on the 20
th
March 2006. They both own their joint assets by virtue of their
marriage regime of community of property. They share the matrimonial

home even though the home loan account is in the name of the second
defendant. She understands that she is liable for 50% of the
bond.
She resigned from her employment with the plaintiff on the 03
rd
of June 2013.
17.3
She
stated that she does not dispute Grootboom’s evidence but she
maintains that the home loan account is not in her name,
thus it does
not belong to her. On the other hand she also admits that both
defendants have a Standard Bank home loan registered
over their
property. She states that the monies were not paid in the Standard
Bank home loan account. Without any factual basis,
under cross
examination, she states that Grootboom’s evidence on the
Standard Bank home loan account statement reflecting
the various
payments was false. After being quizzed by the court on this aspects
and the ostensible contradiction of her evidence,
she changed her
testimony and accept the legal position regarding her joint ownership
of the joint estate and concedes that the
monies siphoned off the
plaintiff’s Nedbank account went into the second defendant’s
home loan account which she jointly
owns.
17.4
Her
attorney, according to her, had not shown her all the documents
discovered by the plaintiff ( the fictitious invoices and cheque

requisitions) on the whole cause of action. The discovery occurred on
the 12
th
of February 2015 and the trial commenced on the 06
th
of September 2016. She said this was the reason she still denies
every allegation made against her.
17.5
She
states that plaintiff was reckless and irresponsible by not
discovering the acts of fraud and theft earlier. She accepts that
the
evidence of Andersen, Dickenson and Webb who testified that according
to the plaintiff’s system, and during 2011 to June
2013, they
thought they were paying suppliers of the plaintiff but only to
discover that the first defendant generated various
fictitious
invoices and documents. This evidence was not challenged and the
evidence regarding what was termed Fraud 1,2,3 and
4 was not rebutted
from the questions during the cross examination. She testified that
because she was never caught out by the
plaintiff, generating the
fictitious documents whilst she worked for the plaintiff, she
therefore did nothing wrong. When asked
during cross examination as
to her husband’s home loan account number appearing as
reference number with Standard Bank on
the fraudulent tax invoices
and other documents, her answer was “
I
do not know”
.
17.6
When
all the four instances of fraud occurred, she was in the employ of
Munters and the only creditors clerk who handled the cheque

requisition requests and their supporting documents except the
shipping documents which were also handled by Ms Kogie Pillay. This

evidence was not challenged. All the other employees including Kogie
Pillay whom she claimed was her supervisor, did not know her

husband’s Standard Bank’s home loan details and could not
access these details. It was put to her that Andersen testified
and
was corroborated by Mr Webb that the financial manager Mr Casper
Larkin loaded the details changing the bank details of Micor,
which
appear on page 26 of the discovery bundle of documents. When the
payments occurred, the financial manager assumed that the
change of
banking details to have come from Micor therefore there was nothing
untoward to pay into the account of Micor. She confirmed
that
legitimate cheque requisitions were requested by her and that the
documents used and her requests are not necessarily different
when
comparing the legitimate cheque requisitions and the fictitious
requisitions on the face of it. Her testimony consisted of
new
material facts that were not placed in dispute with the plaintiff’s
witnesses.
16.7
She
stated that she could not explain the fraudulent transactions in
particular, could not explain why the same amounts that went
into the
second defendant’s Standard Bank home loan account after
leaving the plaintiff’s Nedbank account were immediately

withdrawn from the Standard Bank home loan account. Her husband,
according to her has not told her about the money getting into
the
Standard Bank home loan account. It is the second defendant who could
indicate the source of the payments. She did not establish
from the
plaintiff as to how the plaintiff obtained the second respondent’s
home loan account or home loan reference number.
This she did not do
even during the trial. After she resigned in June 2013, the
generating of the falsified documents stopped and
no further payments
went into the second defendant’s home loan account from the
plaintiff’s bank account. She was unable
to explain this
co-incidence.
17.7
On
her own evidence, the first defendant was the last link in the chain
with respect to payment of the plaintiff’s suppliers
or
creditors.
18.1
The second defendant
Mr KL Serote
testified that since he had an access bond with the Standard Bank
home loan account, he could withdraw any money from that account
if
any withdrawal made are allowed by the bank. During cross examination
he boldly denied that the first defendant ‘
did
anything wrong’
or that she created any fictitious documentation. He confirms that
all the money paid into the home loan account was withdrawn
by him on
various occasions and immediately after the payments were made. He
told the court that he could not explain the startling
co-incidence
that as soon as the deposits went into the account he withdrew the
monies. He conceded that the money did not belong
to him as it was
not earned by him. He confirms he appropriated the money for their
joint benefit. This evidence is indirect contrast
to the first
defendant’s testimony that neither she nor the second defendant
received the amounts claimed by the plaintiff.
18.2
The
second defendant testified that he received Standard Bank home loan
statements quarterly- 3 or 4 times a year. He however testified
that
he hardly looked at the contents thereof and he often did not even
open the statements that he had received.
19
ANALYSIS AND
EVALUATION OF EVIDENCE
19.1
The first and second defendants evidence necessitate that I evaluate
and consider the credibility of the witnesses within the
context of
the wider probabilities of the plaintiff’s case. I enter a
terrain of evaluation of credibility of witnesses since
I am of the
view that the first and second defendants testimony is so inherently
improbable that any version (or versions) they
attempted to pursue in
the course of giving evidence, is incredible.
19.2
The plaintiff’s witnesses, Andersen, Dickenson and Webb gave
clear, convincing and consistent evidence. All three of
them remained
uncontroverted and under protracted cross examination their evidence
corroborated each others’. The credibility
of all three of
these witnesses was not undermined in cross examination.
19.3
Grootboom’s
oral and explanatory letter could not be attacked by the defendants.
Grootboom had nothing to gain by giving false
evidence. Although
Grootboom was subpoenaed by the plaintiff she is not classified as a
witness of the plaintiff.
19.4
The
plaintiff’s witnesses confirmed that all three of the payments
requested by the first defendant on the fictitious cheque

requisitions (Fraud 1,2 and 3)
[15]
totalling the amount of R841 332.35 were paid into the Standard Bank
home loan account of the second defendant and identified the
credits
on the subpoenaed Standard Bank home loan account statements. The
three payments were received respectively on the same
day into the
second defendant’s Standard Bank home loan account as the days
that the amounts left the plaintiff’s Nedbank
account.
[16]
19.5
Andersen,
Dickenson and Webb also confirm and identify the last payment ( Fraud
4) in the amount of R93 055.18 being credited to
the second
defendant’s Standard Bank home loan account as per the
statements. This last payment was received by the second
defendant in
his Standard Bank home loan account on the same day that the amount
left the plaintiff’s Nedbank account.
[17]
19.6
On
the other hand, the evidence tendered by both the first and the
second defendants was not coherent, the first defendant’s

testimony is riddled in self contradictory statements, was
inconsistent and blatantly misleading. Although the first defendant

testified that neither she nor the second defendant received the
amounts claimed by the plaintiff, first defendant’s evidence

was that she has no access to or knowledge of the second defendant’s
financial affairs. Both the first and second defendants
testified
that they did not discuss work or financial matters with one another.
They did not have an idea what the other was earning.
In my view, it
is very unusual for the parties married in community of property not
to have any knowledge of the other spouse’s
financial affairs.
Their marriage regime requires that they share liabilities and they
are core owners of the joint estate.
19.7
The
first defendant, contrary to the counsel’s version put to the
plaintiff’s witnesses, testified that the second defendant
did
receive Standard Bank home loan statements at the address where they
reside, but she had never opened them. This was corroborated
by the
second defendant’s testimony that he received the said
statements quarterly but he hardly looked at them. I am not
persuaded
by this piece of evidence and find it highly improbable and false.
The second defendant’s testimony clearly suggests
he knew the
movements in the home loan account more so , taking into account the
evidence that every time after there was payment
made into the
account, he was able to withdraw these huge amounts of money. In the
light of his evidence that he made so many withdrawals
against the
credit in his home loan account, his evidence that he did not open
home loan bank statements cannot be believed.
20
The second defendant
persisted with his evidence that he never received the amounts
credited to his Standard Bank home loan account,
but the bank
received it, despite him conceding that Standard Bank home loan
accounts related to his home loan account and he withdrew
the funds.
His evidence in this respect does not make any sense at all and
should be rejected. He further conceded that the total
amount of R
934 387.53 was paid into his Standard Bank home loan account. The
nail to the second defendant’s case is a factual
evidence that
all the withdrawals that he made from the Standard Bank home loan
account were made by him within a day or two of
receipt of payment.
The second defendant’s explanation, during examination in
chief, that he had an access bond account and
as such he could make
withdrawals from that account as he pleased and irrespective of the
time limit of the home loan (granted
in 2005 in the amount of R500
000.00) is preposterous , devoid of all truth and illogical attempt
to justify his large and other
withdrawals from the account.
In
view of the aforegoing I make a finding that the second defendant’s
evidence is false, cannot be believed and he is an
untrustworthy
witness.
21
The first defendant,
similarly, attempted to mislead the court by claiming that she had
done nothing wrong regarding the generating
of falsified invoices,
requisitions as well as the document on page 26 of the plaintiff’s
bundle, that made it possible for
her to achieve the changing of
Micor’s banking details to that of her husband, the second
defendant. She never bothered to
quiz the plaintiff regarding this
issue because she knew, in my view, what would exactly follow from
enquiries that she had to
make. Her performance in court on this
issue left the court in no doubt that she was willing to lie,
prevaricate and mislead the
court in order to advance her own and the
second respondent’s financial interests. Her conduct was
deceitful not only to
the plaintiff who has put her in a position of
trust whilst she was in the employ of the plaintiff but also to the
court. Her actions
clearly disregarded the interests of the plaintiff
and abused her position of trust to the prejudice of the plaintiff.
She clearly
used the position of trust in which she was placed by her
employer, the plaintiff, to cause harm to the plaintiff.
22
In disputably, the
defendants wilfully abstained from enquiring either from the
plaintiff or from Standard Bank with regards to
these fraudulent
payments as they knew what the answer to their enquiries would be.
They knew that they will be informed that fraud
and theft has
occurred and the first defendant was answerable. It is indeed so that
if you fail to make enquiries where common
sense basically tells you
something and you do not act in accordance with cognitive
appreciation of what common sense tells you,
the only inference that
can be drawn from that, is that you doing so in a dishonest capacity.
You are not asking the questions
because you know the answer. And in
the same parenthesis, the defendants’ wilful abstention from
making enquiries either
from the plaintiff or Standard Bank amounts
to dishonesty on their part and I find this conduct to be warranting
a finding of dishonesty
and lack of integrity.
23
In
R
v Myers
1948 (1) SA 375
(D)
it
was said that a belief if not honest which though infact entertained
may in itself have been the outcome of a ‘
fraudulent’
diligence in ignorance – that is, of a wilful abstention from
all sources of information which might lead
to suspicion, and a
sedulous avoidance of all avenues to the truth, for the express
purpose of not having any doubt thrown on what’
the person concerned ‘
desires
and is determined to and afterwards does (in a sense) believe’
.
In my view, similar reasoning applies in the present case.
24
The conclusion to which I
am driven is that,
prima
facie
, the
defendants consciously closed their minds in pursuing lines of
enquiry which could have informed them better but which could
also
have demonstrated to them that they chose to believe was in fact and
law is mistaken. The absence of any evidence to contradict
that
inference renders it the most probable one in the circumstances.
25
ONUS
25.1
In order for the plaintiff to be successful in the claim it has to
prove the following:
25.1.1
That it had suffered the monetary loss in the amount of R934 387.53,
25.1.2
That the loss of R934 387.53 was due to the conduct of the
defendants, and
25.1.3
Fault or blame worthiness on the part of the defendants.
26
The
wrongful infliction of pecuniary loss as a form of delictual conduct
can generally be defined as the wrongful and culpable conduct
which
causes patrimonial harm to the plaintiff. The plaintiff’s
remedy for the recovery of the damages is the
actio
legis Aquiliae.
For the purpose of finding an aquiliaen liability, plaintiff can
prove either negligence or intent on the part of the defendant.
[18]
The plaintiff must also be able to prove a calculable pecuniary
loss.
[19]
27
For
all practical purposes the general principles underlined delictual
remedies comprehensively cover the whole field of delictual

liability
.
There
is therefore no need to specify the action in terms of which the
claim is brought. Provided facts are alleged in the pleading
which
justifies the relief sought in accordance with the principles of our
law. The pleading will disclose the cause of action
without delict
being named.
[20]
28
It was demonstrated,
during the cross examination of the second defendant that the
following crucial facts occurred and were established:
28.1
That the starting debit balance of the home loan on the 2
nd
February 2011 was the amount R388 734.24. On the 22
nd
February 2011 after the first payment was received from the plaintiff
in the amount of R586 981.83, the balance of the home loan
was R198
247.59 – in credit. With one single payment from the plaintiff
the home loan was paid in full.
28.2
The second defendant made two large withdrawals thereafter on the
23
rd
February and 24
th
February 2011 in the amounts of R 210 000.00 and R138 000.00
respectively. The total of R348 000.00. On questioning how he knew
he
could make such large withdrawals on a R500 000.00 bond, he testified
that he could make it because he paid his monthly bond
premiums.
The
same
modus
is followed on all of the withdrawals with emphasis on large
withdrawals very shortly one or two days after payment is made by
the
plaintiff.
28.3
On the three pages of the second defendant’s Standard Bank home
loan account he had made withdrawals between the period
23
rd
February 2011 to 24
th
February 2013 in the total amount of R796 000.00. The second
defendant withdrew the amount of R348 000.00 after the first
payment
by the plaintiff in the amount of R 586 981 38. He withdrew the
amount R364 000.00 after the second payment by the plaintiff
in the
amount of R175 568.00.
28.4
He withdrew the amount of R84 000.00 after the third payment by the
plaintiff in the amount of R78 782.52. The second defendant
was
therefore at all times very much aware of the payments being made by
the plaintiff. No other inference can be drawn judging
by his large
withdrawals and timing thereof. This clearly suggests that there was
communication between the defendants about these
payments and the
withdrawals.
29
Despite the total amount
of the withdrawals the balance of the second defendant’s home
loan’s account as at the last
date on the statement being 02
nd
August 2013 is the amount of R193 428.42 less than the opening
balance on the first page of the statement dated the 02
nd
February 2011. Despite the second defendant’s simulated
protests that he did not know where the money came from, that he
was
not expecting money from anywhere or anybody he conceded to the court
when questioned that he knew the money did not belong
to him. He also
conceded that the amounts that the plaintiff paid into his Standard
Bank home loan account are no longer in the
account and have been
utilised by him. Both defendants conceded that the plaintiff did not
owe either of them any money for any
reason. Upon being questioned if
the second defendant would instruct Standard Bank to repay the
plaintiff the amount of R934 387.53,
as he knew where the amounts
came from, his answer was that he will not and in any event he has
appropriated the monies for himself.
30
It is therefore evident,
in my view that both defendants planned their theftuous conduct and
knew that the money came into the second
defendant’s Standard
Bank home loan account by way of fraud or theft. The first respondent
skilfully created and manipulated
the relevant documents at her place
of employment with the plaintiff with the intention to cause the
plaintiff financial harm.
After she exited from the plaintiff’s
employ, the payment to the second defendant bank account stopped. The
creation of the
falsified documents and cheque requisitions also
stopped. On a balance of probabilities, I am satisfied that the court
can draw
an inference that the defendants knew that the money is
stolen from the plaintiff and due to that act of stealing, it was
paid
into the second defendant’s bank account to the credit of
the second defendant who had no entitlement to the money so paid
into
his home loan account. In
Nissan
South Africa (Pty) Ltd v Marnitz NO and Others
2005 (1) SA 441
(SCA)
at 449 paras 26
,
Streicher JA dealt with this question by stating that an
appropriation on the funds transferred to the bank account with
knowledge
that the thief is not entitled to the funds, would
constitute theft of such funds. Under the circumstances, the
plaintiff would
then be entitled to payment of the monies from those
who were not entitled to it when they appropriated the monies.
26
“In this case, FNB , as agent of the appellant, intended to
effect payment to TSW, and Standard Bank an agent of Maple
intended
to receive payment on behalf of Maple. There was no was meeting of
the minds. In the circumstances, Maple did not become
entitled to the
funds credited to its account. Any appropriation of the funds by
Maple, with knowledge that it was not entitled
to deal with the
funds, would have constituted theft. The transfer of the funds the
receipts account and thereafter to the payments
account of Maple did
not change Maple’s position concerning those funds. Just like
Standard Bank, FNB received funds to which
Maple was not entitles. An
appropriation of these funds by Maple, with knowledge that it was not
entitled to the funds, would likewise
have constituted theft thereof.
The first and second respondents, consequently, have no claim against
FNB in respect of the funds.
27.
“
It was common cause
that, in the event of its being found that the first and second
respondents were not entitled to the funds,
the appellant was
entitled to payment thereof.”
31
In casu, Standard Bank
would not be in position to reverse any credit in the account of the
second defendant since, the money has
been appropriated by the second
respondent. And in any event, this is not a case before me.
32
Accordingly, the
plaintiff has discharged its onus and has proved that the first
defendant fraudulently and intentionally and with
the aim to defraud
the plaintiff created fictitious supplier invoices and other
supporting documents including the document that
was used by the
first defendant to change a suppliers banking details loaded on the
plaintiff’s system. I am also satisfied
that on the
preponderance of probabilities, the fraudulent activities perpetrated
by the first respondent were done with the knowledge
of the second
respondent. The second respondent’s withdrawal and
appropriation of the monies that went into his Standard
Bank loan
account accords with the circumstantial evidence from which an
inference, on the probabilities, is drawn by the court
that the first
defendant defrauded the plaintiff and stole the money. Plaintiff has
proved the allegation regarding both claim
A and B for R934 387.53
and its entitlement thereto.
33
COSTS
33.1
It is settled law that costs follow the result and that the general
rule is that the successful party is awarded costs as between
party
and party.
34
Plaintiff’s
counsel submitted that defendants did not have
bona
fide
defence in the action instituted by the plaintiff she bemoaned the
recalcitrant conduct pursuit by the defendants leading up to
the
eventual hearing. It was submitted that it would be just and
equitable for the defendants to pay the plaintiff’s costs
on
the scale of attorney and client. It is not disputed by the
defendants that the background to the litigation has a peculiar

history. The defendants were placed under bar to file their plea on
the 30
th
March 2015, when the plea was eventually filed as stated elsewhere in
this judgement, it was a bare denial. The defendants attempted
to
stall the matter by persisting with the point that the plaintiff’s
attorney was not authorised to act on behalf of the
plaintiff despite
the plaintiff’s attorney having filed her mandate and an
authority in terms of Rule 7 on the 27
th
of May 2015
[21]
.
35
It was further submitted
that the defendants attitude and persistence in court that they did
not receive plaintiff core documents
upon which the claim was
founded, despite plaintiff’s reply to a Rule 35 (12) Notice
with all the documents attached and
delivered on the 12
th
February 2015. The defendants neglect to make discovery of
documentation after an order to compel was granted by both Honourable

Justice Makhanya on the 1
st
of December 2015 and by Honourable Justice Wright on the 3
rd
of June 2016, compelling the defendants to deliver further and better
discovery. The defendants are said not to have complied with
those
two court orders. And have not replied to the plaintiff’s
request for further particulars for trial in terms of Rule
21 served
on defendants attorneys on the 10
th
of August 2016.
36
In addition thereto, the
plaintiff’s request during the pre-trial conference held on the
29 August 2016 to which the defendants
undertook to revert by the 3
rd
of September 2016 were not responded to until trial commenced on the
06
th
of September 2016.
37
The defendants introduced
new versions throughout the trial that the plaintiff have not heard
before as they were not formally pleaded.
The plaintiffs were
therefore ambushed throughout the trial to meet every new version put
by the defendants.
38
It
is indeed so that the defendants had increased the scope of
litigation in this matter to such an extent that the expenses to

which the plaintiff was put in, in pursuing its rights, were
multiplied. The court frowns upon this conduct as it is unjust and

would unjustly leave the plaintiff with a heavy attorney and client
liability.
[22]
The AD as it
then was in
Nel
v Waterberg
Landbouwers
Ko-operatiwe Vereeniging
1946 AD 597
,
it
was held by Tindall JA that:
“
The
true explanation of awards of attorney and client costs seem to be
that by reason of special consideration arising from the

circumstances which gave rise to the action or from the conduct of
the losing party, the court, in a particular case considers
it just
by means of such an order, to ensure more effectually than it can do
by means of a judgement for party and party costs
that the successful
party will not be out of pocket in respect of the expenses caused by
him by the litigation. And Awards of attorney
and client costs are
used by the court to mark its disapproval of some conduct which
should be frowned upon”
.
39
None
of the essential features of the plaintiff’s case were disputed
or could be disputed, yet the defendants persisted in
resisting the
merits on the basis of a bare denial. Under the circumstances it will
be iniquitous to expect the plaintiff to bear
any portion of its
costs. As a mark of disapproval of the defendants approach to the
matter the court will therefore award the
plaintiff attorney and
client costs. Before I conclude, I have to apologise to the parties
for the time it has taken to get the
judgement out. This was not
aimed at undermining the hardships that a delay in the delivery of
the judgement caused to the parties.
40
CONCLUSION
40.1
In the result I make the following order, against the first and
second defendants jointly and severally, the one paying the
other to
be absolved for:
40.1.1
Payment of the total amount of R934 387.53 being the amount of
damages that the plaintiff has suffered in respect of claim
A and B;
40.1.2
Interest on the said amount at the applicable rate per annum, a
tempore morae;
40.1.3
Costs of suit on a scale as between attorney and client.
NCONGWANE
AJ
ACTING
JUDGE OF THE HIGH COURT
Dates
of Hearing:
6
th
September 2016 – 09 September 2016,
27
and October 2016,
12
th
December 2016 – 13 December 2016, and
4
th
April 2017 – 7
th
April 2017.
Judgment
Delivered:
26 March
2018
APPEARANCES
On
behalf of the Plaintiff : Adv T. Halgryn
Instructed
By: Rina Caldeira Attorneys
Johannesburg
On
behalf of the Defendants: Adv B.T.  Ngqwangele
Instructed
By: Matsepe Attorneys
Johannesburg
[1]
See
notes to Rule 18 (4) sv “every pleading shall contain a clear
and concise statement”.
See
also, in
general,
Vettori and De Beer “The consequences of pleading a
non-admission” 2013 46 (2) De Jure 612.
[2]
Hlongwane
v Methodist Church of South Africa 1933 LLD 165, FPS LTD v Trident
Construction (Pty) Ltd
1989 (3) SA 537
(a) at 541 H – 542 D.
[3]
Nyandeni
v Natal Motor Industries Ltd
1974 (2) SA 274
(D) at 279, Kali v
Incorporated General Insurances Ltd
1976 (2) SA 179
(D) at 182 (A)
[4]
Nedco
Bank t/a Nedbank v Lloyd – Grey
Lithographers
(Pty) Ltd
2000 (4) SA 915
(SCA) and Mabaso v Felix 1981 (3) (SA) 865
(A)
[5]
See the
record Volume 1 page 27 para 15 - 25
[6]
Plaintiff’s
discovered bundle page 26 and Grootboom Standard Bank letter
dated the 8
th
of September 2016 Exhibit C on page 2.
[7]
Page 38 of
the record para 10 and 20
[8]
Plaintiff
discovery bundle: Micor’s legitimate invoices pgs 66 and 83.
[9]
Plaintiff’s
discovery bundles pages 4, 5 , 15 and 23
[10]
Plaintiff’s
discovery bundles pages 29, 31 and 40
[11]
Plaintiff’s
discovery bundle pages 52 and 62
[12]
Plaintiff’s
discovery affidavit pages 103 - 115
[13]
Plaintiff’s
discovery bundle pages 64,66 and 83
[14]
See Exhibit
A (Index to the subpoenaed documents and Standard Bank
statements as per
the index)
[15]
Plaintiff’s
discovery bundle pages 4, 25 and 52
[16]
Plaintiff’s
discovery bundle pages 104, 108 and 112
[17]
Plaintiff’s
discovery bundle page 117
[18]
Mathew v
Young 1922 AD 492
[19]
LAWSA,
Delict Volume (15) (3ed) Lexis Nexis para 2
[20]
Minister
of Finance and Others v EBN Trading (Pty) Ltd
1998 (2) SA 319
(N) at
page 324 B – D, referred to and agreed with in Media 24 Ltd
and others v/s SA Taxi Securitisation (Pty) Ltd (Avusa
Media and
Others as
Amici
Curiae)
2011
(5) SA 329
(SCA) at para 9 at page 334.
[21]
Pleadings
bundle notices indexed item 6-7 and pages 8 to 21.
[22]
Law of
Costs, Cilliers, Issue 30 para 4.06 page 4 - 8