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2024
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[2024] ZAGPJHC 9
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Nedbank Limited v Jacobs (2023-000396) [2024] ZAGPJHC 9 (12 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case No. 2023-000396
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE: 12 January 2024
SIGNATURE
In the matter between:
NEDBANK
LIMITED
Plaintiff
and
ELSABIE
JACOBS
Defendant
JUDGMENT
WILSON J:
1
The Plaintiff, Nedbank, employed the defendant, Ms. Jacobs, as
a “service specialist” at its Krugersdorp branch. Nedbank
alleges that, on 29 December 2021, Ms. Jacobs issued a bank card to
an individual impersonating one of its account holders. Nedbank
also
alleges that, on 30 December 2021, at the request of the imposter,
Ms. Jacobs changed the cell number registered against the
account,
and increased the withdrawal limit on the account.
2
As a result of this, the imposter was able to withdraw
R2191901.75 from the account. R866062.21 of that was later recovered,
leaving
Nedbank liable to the account holder for the remaining
R1325839.54. In this action, Nedbank seeks to recover that amount
from Ms.
Jacobs, because, Nedbank says, Ms. Jacobs was either a party
to the imposter’s fraud, or she negligently allowed it to take
place. The essence of the negligence is said to be Ms. Jacobs’
failure to adhere to the strictures of Nedbank’s employee
code
of conduct which set out the procedures to be followed when making
the various changes to a customer account that Ms. Jacobs
carried
out.
3
Ms. Jacobs did not defend the action, and Nedbank applied to
the registrar for default judgment. For reasons that are not clear
from the record, the registrar took no action on the application for
several months. In the end, the application for default judgment
was
enrolled before me in my unopposed court on 9 November 2023. After
hearing from Ms. Carvalheira, who appeared for Nedbank,
I refused
default judgment and indicated that I would give my reasons if they
were requested. Nedbank’s attorney appears
to have applied for
reasons from the registrar on 21 November 2023, but the registrar
only brought the application for reasons
to my attention on 11
January 2024. Again, the cause of that delay remains obscure. In any
event, these are my reasons for refusing
default judgment.
4
Rule 31 (5) makes clear that default judgment can only be
granted without the presentation of evidence where the claim is one
for
a “debt or liquidated demand”. There is a
disagreement in the cases about the meaning of the term “debt
or liquidated
demand” for the purposes of the Rule. In the
context of judgments for the return of stolen money, it has been held
that the
plaintiff need only establish that the claim is for a
definite or easily ascertainable sum. There is no need to show
“sufficient
proof” that the defendant is actually liable
to the plaintiff to return the stolen amount (see
Colrod Motors
(Pty) Ltd v Bhula
1976 (3) SA 836
(W) at 837C-D). However, it has
also been held that such a claim is only liquid if there is “some
further element showing
at any rate
prima facie
that the sum
of money is due to plaintiff from defendant” (see
Du Toit v
Grobler
1947 (3) SA 213
(SWA) at 214).
5
I incline towards the view that a debt or demand is only
liquid if there is an unambiguous foundation laid for the proposition
that
it is actually due. Otherwise, any amount that has been
calculated with sufficient particularity on the face of a combined
summons
would count as a liquidated amount capable of being awarded
by default without the presentation of evidence. Where a default
judgment
is sought without the presentation of evidence, I do not
think that there is an uncomplicated line to be drawn between the
nature
of the claim and the liquidity of the amount for which
judgment is sought. Default judgment is especially suited to claims
on documents
that evidence a well-defined commercial relationship
between the parties, such as a loan. The more unusual or factually
complex
a claim is, the less inclined a court will be to grant it by
default, without the presentation of evidence, even if the amount
claimed is technically liquid on its own terms.
6
In this case, Nedbank pleads two claims in the alternative.
The first is that Ms. Jacobs was party to the fraud. The second is
that
she was negligent in failing to prevent it, and that she
breached her duty of care to Nedbank in failing to follow the
required
procedures in issuing the bank card and making changes to
the account holder’s cell phone number and withdrawal limit.
There
are no facts in evidence that would allow me to determine which
of these two cases Nedbank wishes to advance. If Nedbank cannot
say
what its case really is, it seems to me that it has not established
that the debt it claims is due.
7
It was for these reasons that I refused the application for
default judgment. The effect of my decision is not to bring Nedbank’s
action to an end. It is merely that Nedbank must lead evidence of the
debt and the fact that it is due. If the facts alleged in
its
particulars are even remotely true, Nedbank should have little
difficulty in doing so.
S D J WILSON
Judge of the High Court
This
judgment was prepared by Judge Wilson. It is handed down
electronically by circulation to the parties or their legal
representatives
by email, by uploading to the electronic file of this
matter on Caselines, and by publication of the judgment to the South
African
Legal Information Institute. The date for hand-down is deemed
to be 12 January 2024.
HEARD
ON:
9
November 2023
REASONS
REQUESTED:
21
November 2023
REQUEST
COMMUNICATED
TO THE
PRESIDING JUDGE:
11
January 2024
DECIDED
ON:
12
January 2024
For the
Plaintiff:
R
Carvalheira
Instructed
by Hamond Pole Attorneys
For the
Defendant:
No
appearance