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[2012] ZASCA 139
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Absa Bank Ltd v Lombard Insurance Company Ltd, Firstrand Bank Ltd v Lombard Insurance Company Ltd (629/2011, 684/2011) [2012] ZASCA 139; 2012 (6) SA 569 (SCA); [2012] 4 All SA 485 (SCA) (28 September 2012)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 629/2011
In the matter between:
ABSA BANK LIMITED
.............................................................................................
APPELLANT
and
LOMBARD INSURANCE COMPANY LIMITED
...................................................
RESPONDENT
Case No: 684/2011
In
the matter between:
FIRSTRAND BANK LIMITED
..................................................................................
APPELLANT
and
LOMBARD INSURANCE COMPANY LIMITED
...................................................
RESPONDENT
Neutral
citation:
ABSA and FIRSTRAND v LOMBARD INSURANCE
(629/2011
and 684/2011)
[2012] ZASCA 139
(28 September 2012)
Coram:
Mthiyane DP, Cloete,
Malan, Pillay and Petse JJA
Heard:
13 September 2012
Delivered: 28 September 2012
Summary: Recovery of stolen money –
stolen money paid into thief’s account – whether debts on
overdraft, credit
card account and home loan extinguished –
whether banks holding the accounts enriched –
suum recipit
.
ORDER
On appeal from:
the South
Gauteng High Court, Johannesburg (P A Meyer J sitting as court of
first instance):
1 (1) The appeal of the
appellant in case 684/2011 is upheld with costs. (2) The order of the
court below is replaced with the following:
‘
The
application against the first respondent is dismissed with costs.’
2 (1) The appeal of the
appellant in case 629/2011 is upheld with costs including the costs
of two counsel save that the appellant
is ordered to pay the
respondent’s costs up to the time of filing of the appellant’s
heads of argument.
(2) The order of the
court below is replaced with the following:
‘
The
second respondent is ordered to pay to the applicant the sum of
R573 346,66 together with the interest that in fact accrued
thereon until the date of payment and costs of suit.’
__________________________________________________________________
JUDGMENT
Malan JA (Mthiyane DP,
Cloete, Pillay and Petse JJA concurring):
[1]
These are two appeals against the judgment and order of Meyer J in
the South Gauteng High Court, Johannesburg granting an application
for the payment of money stolen from the respondent’s bank
account and transferred to accounts held by the thief with the
two
appellants. The appeals are with the leave of this court.
[2]
The central figure in this matter is Ms Manickum. She was employed by
the respondent, Lombard Insurance, as a financial accountant
in its
finance department. She was, as it was said, the ‘second-in-command’.
She had cheque accounts with both ABSA
and FNB, the two appellants in
this appeal. In addition, she had a home loan and a credit card
account with FNB as well as a credit
card account with ABSA. Most, if
not all, of these accounts were in debit at the time of these events.
[3]
Lombard Insurance is a short-term insurer and licensed financial
services and credit provider. Its principal business is the
provision
of guarantees to customers guaranteeing the latter’s
performance of their contractual obligations to third parties.
As
security for issuing a guarantee Lombard Insurance would hold a cash
deposit from its customer. These deposits are repayable
once the
guarantee has served its purpose and there are no outstanding amounts
due by the customer to Lombard. In order to obtain
repayment of the
deposits a customer would in writing request Lombard Insurance to
effect payment by means of an electronic transfer
of the amount due
into the customer’s account.
[4]
Ms Manickum, heavily indebted, could not resist the temptation to
forge a letter purporting to be a request by a customer of
Lombard’s
for repayment of cash deposited as security. The customer never made
the request and was quite unaware of it at
the time. Ms Manickum
prepared the required forms for the electronic transfer for signature
by the authorised officials of Lombard
Insurance. They were duly
signed and the funds transferred by Lombard Insurance’s bank
and from its account, not to the innocent
customer’s account,
but to the current account of Ms Manickum at FNB. Some R2 114 947,44
was credited to her current
account on 2 August 2007. The existing
debit balance of R57 013,42 was extinguished and converted into
a credit balance of
R2 057 934,02.
[5]
Not satisfied with this windfall on her current account, Ms Manickum
on 3 and 4 August 2007 made a number of further transfers
from her
FNB current account. She transferred R1 million to her home loan
account thereby reducing the amount owing to FNB; and
R100 000
to her FNB credit card account extinguishing the debit of R39 775,74
and leaving a credit balance of R60 224,26.
[6]
She also favoured ABSA with her generosity. On the same two days she
transferred R400 000 from her FNB current account
to her ABSA
current account thereby wiping out a debit balance of R47 440,68
on the latter account and converting it into
a credit of R352 559,32.
This amount was subsequently transferred to an ABSA account held in
the name of the trustees of Ms
Manickum’s and her husband’s
insolvent estate. A further R150 000 was paid into her ABSA
account. At the time
the theft was detected and Ms Manickum’s
accounts frozen, a credit of R220 392,21 remained in her ABSA
current account.
This amount was also transferred to an ABSA account
held in the name of the trustees of her and her husband’s
insolvent estate.
Her ABSA credit card debt of R43 275,53 was
discharged by a transfer of R50 000 from her ABSA current
account leaving
it in credit in an amount of R6 724,47. A number
of other transfers were also made from both her FNB and ABSA accounts
but
they need not detain us. She also continued using her credit
cards with both banks depleting whatever credit balances remained on
them.
[7]
Lombard Insurance sought payment from FNB of the sum of R1 096 789,16
which is made up of R57 013,42 used to
extinguish Manickum’s
indebtedness on her FNB current account; R1 000 000 used to
reduce her indebtedness on her
home loan account; and R39 775,74
used to extinguish her indebtedness with FNB on her credit card
account. The remedy relied
upon is the
condictio ob turpem vel
iniustam causam
. Lombard Insurance did not seek payment of the
credit balance which stood to the credit of Ms Manickum’s
current account
with FNB but which was transferred to ABSA and held
by it on behalf of the trustees in the insolvent estate of Ms
Manickum and
her husband.
[8]
Lombard Insurance sought to recover from ABSA the amounts of
R47 440,68 credited to Ms Manickum’s overdraft and
R43 275,53 in respect of the debit balance on her ABSA credit
card account after transfer of R50 000 into it (ie a total
of
R90 716,21); and the said R220 392,21 as well as the
R352 954,45 referred to.
[9]
The appellants sought leave to appeal against the whole of the
judgment of the court below. In its heads, however, ABSA conceded
that the court below was correct in so far as it ordered the return
of that part of the stolen funds that left the thief’s
accounts
with credit balances. The appeal by ABSA relates solely to the amount
of R90 716,21 which is the total of the amounts
of R47 440,21
(being the amount of her overdraft settled by the payments into her
ABSA current account) and R43 275,53
(being the debit balance on
her ABSA credit card account settled by the payment credited to it).
The appeal by FNB is concerned
with its liability to restore moneys
paid to it and which were used to discharge the debit balances on Ms
Manickum’s account.
The appeals are thus concerned with the
question whether receipt of the stolen funds by the appellant banks
operated as a discharge
of Ms Manickum’s respective debts to
them.
[10]
In upholding the application Meyer J said as follows:
‘
Neither
FNB nor ABSA has succeeded in establishing that either of them was
not in the end enriched by the amounts which are presently
claimed
from them. Neither bank has set up facts that, had either sued
Manickum, she could have been heard to say that her FNB
or ABSA
overdraft accounts had been extinguished or that her FNB home loan
account had been reduced as a result of the payments.
Manickum, on
the accepted or undisputed facts, came to the money by way of fraud
or theft and she had no entitlement to the amounts
credited to her
various FNB and ABSA accounts that are presently in issue.
The
credits under consideration may validly be reversed by FNB and by
ABSA, whether or not they reduced or extinguished debit balances
or
brought about or increased credit balances.
The joint trustees to Manickum’s insolvent estate did not
acquire any greater right to the funds that were credited to the
ABSA
insolvent estate accounts than Manickum ever had, and she had none.
The right to the funds does not form part of the insolvent
estate of
Manickum and that of her husband. No one other than Lombard has been
shown to be entitled to these funds. The credits
to the ABSA
insolvent estate accounts may be validly reversed by ABSA.’ (My
emphasis.)
[11]
The judgment thus raises important questions concerning payment and
in particular the question whether payment by Ms Manickum
of her
debts with stolen funds discharges them. It was argued on behalf of
Lombard Insurance that, because a bank may, generally,
reverse a
credit entry made in respect of a stolen cheque deposited or stolen
money paid into an account, the bank may do so whether
or not the
proceeds of the cheque or the money paid was accepted in discharge of
a debt owing by the customer (the thief) to the
bank.
It
was contended that, following the cases of
First
National Bank of Southern Africa Ltd v Perry NO
1
and
Nissan
South Africa (Pty) Ltd v Marnitz NO
,
2
a development in our law
had taken place in terms of which a bank which has credited a thief’s
account with the proceeds of
stolen money is liable to the owner of
the money because it has no obligation to account to its customer
(the thief having no enforceable
claim against the bank). The bank,
so the argument went, is obliged to repay the whole amount of the
stolen money credited to the
thief’s account because it is
enriched by its receipt also where and to the extent to which the
whole or part of the stolen
funds is used to discharge the thief’s
indebtedness to the bank. To my mind, too much has been read into
these judgments
and they do not justify the conclusion advanced. In
fact, a proper reading of them establishes the contrary.
Perry’s
case is not support for
the conclusion that the bank crediting the thief’s account with
the amount of stolen money is obliged
to restore the whole of the
amount to the owner. It is correct that the
condictio
ob turpem vel iniustam causam
is
available against a possessor of stolen property who acquired it with
knowledge of the theft and also against the possessor who
becomes
aware of it at a later stage.
3
But, and this is
decisive:
‘
It
is not only the person who receives with knowledge of illegality but
also one who learns of it while he is still in possession.
This does
not mean that he is treated as liable for a delict as, among other
things, his liability is limited to his enrichment,
that is if he is
enriched at all.’
4
The
court simply did not deal with the question whether any debt owed by
the thief to the bank, such as an amount on overdraft,
was discharged
by the bank’s crediting the account. Moreover,
Perry
was decided on exception.
The question in that case was whether
prima
facie
Nedbank
had been enriched to the extent that the stolen funds received were
used to repay the overdraft. No view was expressed on
this question.
The court expressly stated that ‘non-enrichment is a matter of
defence and is something yet to be fought out
between FNB and
Nedbank.’
5
[12]
The conclusion that the overdraft is discharged by receipt of the
stolen funds is supported by
ABSA
Bank Ltd v Intensive Air (Pty) Ltd & others
:
6
‘
Had
the company’s money been stolen, and had the thief paid off his
overdraft with the stolen money, the company would have
no claim for
repayment thereof against the bank … but would, of course,
have had a claim against the thief and a possible
enrichment action
against anyone who knowingly received or retained the stolen money.’
[13]
I fail to see how the judgment in
ABSA
Bank Ltd v Standard Bank of SA Ltd
7
advances the contentions
of Lombard Insurance. In that case a forged cheque drawn on Standard
Bank was deposited to the credit of
an overdrawn account of one Horn
with ABSA leaving a credit balance on the account. A week later
Standard Bank alerted ABSA to
the forgery and ABSA froze the account.
Standard Bank claimed the funds used to extinguish the overdraft. Its
claim was dismissed
on the basis that the credit that was made was
provisional and never became final.
8
The implication is that
had the payment been final the result would have been different. This
is borne out by the following statement:
9
‘
It
is true that a collecting bank presents a cheque to the drawee bank
on behalf of the former’s customer, the payee, but
once the
amount in question is effectively credited to the payee’s
account there is no longer a question of an agency relationship.
The
collecting bank then holds the proceeds in its own right.
If the
account was in credit, the collecting bank becomes the debtor of the
payee to the extent of the increased credit. And, if
the account was
overdrawn, the payee’s indebtedness to the collecting bank is
extinguished or reduced.’
[14]
Nor does
Nissan’s
case support counsel’s
argument. That case was concerned with credit balances on accounts
and not with an overdraft. The court
there found that a bank which
credited its customer’s account is not liable to pay the amount
to the customer if the customer
came to the money by theft or fraud.
In that case the customer knew that it was not entitled to the money
credited to its account.
Its appropriation of it subsequently
amounted to theft. As far as the credit balance remaining on the
account was concerned the
court said the following:
‘
I
agree … that our law would be deficient if it did not provide
a remedy for recovery of stolen money direct from the bank
which
received that money to the credit of the thief’s account, for
as long as the amount stands to the credit of the thief.’
10
The
implication is that the amount standing to the thief’s credit
may be recovered by condiction, but not the amount that
discharged a
debt owed by the thief to the bank.
Nissan
was
concerned with a credit balance on the perpetrator’s account.
The bank had no duty to account to its customer. Nor did
the customer
have a contractual or other right to the stolen funds. The bank, by
remaining in possession of the funds without any
corresponding
liability to account to its customer, was enriched and liable to make
restitution to the owner.
11
Generally,
where a customer deposits money in his account the customer becomes
entitled to repayment but this is so only where the
instruction given
to the bank to collect or pay on his account pursuant to the general
bank and customer contract is enforceable,
not where it is
contra
bonos mores
.
12
The
effect of
Nissan
is
that where a thief deposits stolen money into his account any
instruction disposing of the funds is unenforceable. Hence, there
is
no obligation on the bank to account to the customer. Consequently,
the
bank
retaining
the funds could well be enriched because it is not liable to account
to its customer, but retains the funds. The account
holder, well
knowing that he is not entitled to the funds, would thus not have
been entitled to dispose of the funds credited to
his account because
any act of disposition would have been tantamount to theft
13
and,
moreover, because he never acquired a right against his bank to claim
the funds, the mere credit entry on its account not having
any
material effect.
14
But it
must be emphasised that
Nissan
dealt
with an account in credit.
[15]
Nor does
Nedbank
Ltd v Pestana
15
add to Lombard
Insurance’s case. The court there stated, quite correctly:
‘
[8]
It is well established that, in general, entries in a bank’s
books constitute prima facie evidence of the transactions
so
recorded. This does not mean, however, that in a particular case one
is precluded from looking behind such entries to discover
what the
true state of affairs is. Some examples where a credit may be validly
reversed by a bank were mentioned by Zulman JA in
Oneanate
:
16
“
[I]f
a customer deposits a cheque into its bank account, the bank would
upon receiving the deposit pass a credit entry to that customer’s
account. If it is established that the drawer’s signature has
been forged it cannot be suggested that the bank would be precluded
from reversing the credit entry previously made. So, too, if a
customer deposits bank notes into its account the bank would
similarly
pass a credit entry in respect thereof. If it subsequently
transpires that the bank notes were forgeries it can again not be
successfully
contended that the bank would be precluded from
reversing the credit entry.”
[9]
Further examples where a credit may be validly reversed, include
cases where a cheque has been deposited into a client’s
account
and the resultant credit entry is treated as provisional (or
conditional), subject to a hold period in terms of “standard
banking practice”; or where the client came by the money by way
of fraud or theft; or where a wrong account was erroneously
credited.
Absent
some
legitimate reason for reversal,
however, the general principle is that once an amount has been
validly
transferred by A to the credit of B’s
bank account, the credit belongs to B and the bank has to keep it at
B’s disposal;
it cannot simply retransfer the money back into
the account of A without the concurrence of B.’
The
issue in the present case was simply not addressed in
Pestana
.
[16]
The basis on which ABSA and FNB resist the claims against them can
loosely be termed the defence of
suum
recipit
.
It is based on the principle described in D 12.6.44 where it was
said:
17
‘
Repetitio
nulla est ab eo qui suum recipit, tametsi ab alio quam vero debitore
solutum est’
or
‘there is no restitution from him who received what is due to
him even though it was given as payment by someone other
than the
true debtor’. Its operation is described as follows by Niall R
Whitty:
18
‘
The
concept of “enrichment” … is ambiguous. It can be
loosely used to mean receipt of a benefit in money or money’s
worth. Such a receipt does not necessarily enrich the recipient. A
creditor is not enriched merely because a debt of £100
owed to
him is discharged by payment. Immediately before the payment, he had
a personal right of action or book asset worth £100.
Immediately after the payment, the book asset is extinguished but he
has £100 in cash. One form of wealth is replaced by
another of
equal value:
suum
recipit
.
For the same reason, the debtor suffers no loss by making the
payment. In such a case, it is sometimes said that the recipient
is
“enriched” (
lucratus
)
but justifiably, the justification being his entitlement to the
benefit. This usage seems incorrect.’
[17]
An example illustrating the
suum
recipit
principle
is found in
Commissioner
for Inland Revenue v Visser
.
19
In
that case a fraudster represented that a cheque signed by Visser in
favour of the Commissioner was intended to serve as payment
for the
debt of a third person. It was held that that debt had been paid
since payment was made in the name of the third person.
Visser was
not allowed to recover the amount paid which served to discharge the
debt of the third person.
20
Voet
21
made
it clear where he stated that–
‘
[t]his
power of vindicating stolen property from a third party possessing in
good faith fails nevertheless when stolen money has
been paid by a
thief to a creditor of his who receives it in good faith, or has been
counted out by way of price for a thing sold,
and has been either
used up or mixed with other money; for cash is regarded as used up by
the latter process; moreover cash of
another which has been used up
in good faith by a creditor can neither be vindicated nor claimed in
a personal action.’
Elsewhere
Voet stated:
22
‘
Generally
if a person has paid what he did not himself owe but another owed,
then if indeed he paid in his own name as though he
were himself the
debtor, he rightfully employs this action. But if he paid in the name
of the debtor this action falls away and
the debtor will have release
from the creditor, who has gotten back his own; and the debtor will
start to be bound to the payor
for a refund in the judicial
proceeding on management of affairs or other like proceeding.’
[18]
To discharge a debt it must be paid in the name of the true debtor.
23
Generally,
the discharge of a debt requires an agreement between the parties to
that effect. For payment by electronic means to
be effective the
payee must acquire ‘the unfettered or unrestricted right to the
immediate use of the funds in question’.
24
It
requires the parties to be in agreement as to the debt, whether that
of the payer of that of a third party, to be paid.
25
A
debt-extinguishing agreement, like any other agreement, may be
concluded expressly or tacitly, by conduct. It may or may not be
required to give notice of the acceptance of an offer to conclude a
debt-extinguishing agreement.
26
In a
case like the present notification of the acceptance of an offer to
enter into a debt-extinguishing agreement would be impractical
and
superfluous. Acceptance is evidenced by the corresponding credit and
its non-reversal. A debt-extinguishing agreement may,
like any other
agreement, not be
contra
bonos
mores.
It will be invalid where both parties know that the debt will be
discharged with stolen money. This conclusion hardly requires
authority. But none of the authorities referred to above suggest that
the same result would follow where the creditor is in good
faith and
unaware of the fact that the debt is to be discharged with stolen
funds.
27
Any
suggestion that the validity of the payment may be questioned for
this reason would lead to series of payment transactions being
declared invalid ex post facto after discovery of the theft. Nor is
it required that the law be developed further. The common law
has
already been developed to impose a duty of care on a collecting
bank.
28
Extensive
legislation aimed at the prevention of money laundering applies to
banks.
29
Any
further development along the lines suggested on behalf of Lombard
Insurance which, to my mind, is neither necessary nor desirable,
should be by way of legislation.
[19]
There seems to be no doubt that Ms Manickum,
both
when she caused the fraudulent transfer from Lombard Insurance’s
account to her FNB current account and also when she
made the other
transfers from the latter account,
intended
to discharge or partially discharge her indebtedness to FNB on her
credit card and bond accounts and her indebtedness to
ABSA on her
current and credit card accounts. As a matter of fact this is the
only inference that can be drawn from her conduct.
But, moreover, the
relationship between a bank and its customer is one of debtor and
creditor in terms of which the bank becomes
entitled to funds
deposited in the customer’s account and obliged to receive and
collect payments on the account and to give
effect to his payment
instructions.
30
Payments
made into the customer’s account extinguish any debit on it. As
it was stated in
ABSA
Bank Ltd v Standard Bank of SA Ltd
:
31
‘
When
a customer pays a cash amount equal to the debit balance of his
overdrawn account into that account, there is no question of
set-off
operating. He simply pays the amount owing to the bank. The position
is no different if the customer deposits a cheque
drawn on another
bank into his account. If his bank collects payment and effectively
credits his account, the debt is likewise
paid (or partially paid).’
It
matters not that the payments in the present case were made by
electronic transfer. A bank is obliged to accept payments on a
customer’s account whether made in cash or by cheque or by
money transfer. Nor does it matter whether the account was a current,
credit card or mortgage loan account, because there is no contractual
restriction on such payments on any of these accounts . When
the
funds were transferred into Ms Manickum’s accounts when they
were in debit and at a time when the banks had no knowledge
of their
theft, the latter were in the same position as any other creditor and
were entitled to appropriate the funds transferred
to extinguish the
debts. The legal effect of an electronic funds transfer is that no
physical money changes hands but that the
account holder obtains a
claim against his bank for the credit on the account.
32
Where
the effect of the transfer is that there is no credit because the
entire amount transferred was used to extinguish the debt
on the
account, the customer acquires no claim against his bank. However, he
is enriched to the extent that the debt to the bank
is no longer due.
It follows that it was Ms Manickum who was enriched when the debit
balances on her accounts were extinguished.
[20]
It follows that Lombard Insurance’s claim for the amount of the
stolen funds used to discharge the debit balances on
Ms Manickum’s
accounts with FNB and ABSA must fail.
[21]
In the result the following order is made:
1 (1) The appeal of the
appellant in case 684/2011 is upheld with costs. (2) The order of the
court below is replaced with the following:
‘
The
application against the first respondent is dismissed with costs.’
2 (1) The appeal of the
appellant in case 629/2011 is upheld with costs including the costs
of two counsel save that the appellant
is ordered to pay the
respondent’s costs up to the time of filing of the appellant’s
heads of argument.
(2) The order of the
court below is replaced with the following:
‘
The
second respondent is ordered to pay to the applicant the sum of
R573 346,66 together with the interest that in fact accrued
thereon until the date of payment and costs of suit.’
__________
F R Malan
Judge of Appeal
APPEARANCES:
For Appellant: André
Gautschi SC
Case No 629/2011 Lara
Grenfell
Instructed by:
Lowndes Dlamini
Johannesburg
Matsepes
Bloemfontein
For Appellant: L
Meintjies
Case No 684/2011
Instructed by:
Rorich Wolmarans &
Luderitz Inc
Johannesburg
Symington & De Kok
Bloemfontein
For Respondent: Alan
Dodson SC
Case No 629/2011
Case No 684/2011
Instructed by:
Frese Moll & Partners
Johannesburg
Webbers
Bloemfontein
1
First
National Bank of Southern Africa Ltd v Perry NO & others
2001 (3) SA 960
(SCA).
2
Nissan
South Africa (Pty) Ltd v Marnitz NO & others (Stand 186 Aeroport
(Pty) Ltd Intervening)
2005 (1) SA 441
(SCA).
3
Perry
paras 24 and 25.
4
Id
para 25.
5
Id
para 34.
6
2011
(2) SA 275
(SCA) para 22. I need not concern myself with the
question whether the reference to
Perry’s
case in this
passage supports the text. The text is quite clear.
7
[1997] ZASCA 71
;
1998
(1) SA 242
(SCA).
8
Id
at 252 C-D.
9
Id
a 251F-G. There is no evidence in the present case concerning any
applicable clearing rule governing electronic funds transfers.
The
credit effected by means of an electronic funds transfer seems to be
immediate. See
Take and Save Trading CC & others v Standard
Bank of SA Ltd
2004 (4) SA 1
(SCA). No question of the
countermand of an electronic payment instruction arises in the
present case. See W G Schulze ‘Countermanding
an Electronic
Funds Transfer: The Supreme Court of Appeal Takes a Second Bite at
the Cherry’ (2004) 16
SA Merc LJ
667.
10
Nissan
para 16 and cf para 28.
11
See
F R Malan and J T Pretorius ‘Credit Transfers in South African
Law’
2006 (69)
THRHR
594
and
2007 (70)
THRHR
1
at 15 ff; Jacques du Plessis ‘The cause of action in
Nissan
South Africa (Pty) Ltd v Marnitz NO
’ in H Mostert and M J
de Waal (eds) ‘Essays in Honour of C G van der Merwe’
(2012) 1 at 8 and 16-17; and F
R Malan, J T Pretorius and SF du Toit
‘Malan on Bills of Exchange, Cheques and Promissory Notes in
South African Law’
5 ed (2009) at 348-350.
12
Cf
Nedcor Bank Ltd v ABSA Bank Ltd & another
1995 (4) SA 727
(W) at 730E–F.
13
See
Nissan
para 24.
14
See
para 15 below.
15
[2008] ZASCA 140
;
2009
(2) SA 189
(SCA).
16
Standard
Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd (in
Liquidation)
[1997] ZASCA 94
;
1998 (1) SA 811
(SCA) at 823B and see
Burg
Trailers SA (Pty) Ltd & another v ABSA Bank Ltd & others
2004 (1) (SA) 284 (SCA) para 9.
17
See
Jacques du Plessis
The South African Law of Unjustified
Enrichment
(2012) at 153 fn 394 and see Robin Evans-Jones
‘Unjustified Enrichment vol I: Enrichment by Deliberate
Conferral: Condictio’
(2003) paras 7.22 and 8.53 and Niall R
Whitty ‘The Edinburgh Seminars on Unjustified Enrichment (LLB
Honours) offered in
the School of Law at the University of
Edinburgh’ (2006-2007) at 45.
18
Niall
R Whitty ‘Indirect Enrichment in Scots Law’
1994
Juridical Review
200
at 203 (and ‘Indirect Enrichment
in Scots Law: Part II’
1994
Juridical Review
239).
See
B & H Engineering v First National Bank of SA Ltd
[1994] ZASCA 152
;
1995
(2) SA 279
(A) at 285C-E and
Nedcor Bank Ltd v ABSA Bank &
another
1995 (4) SA 727
(W) at 730C-D.
19
1959
(1) SA 452
(A).
20
See
also
John Bell & Co v Esselen
1954 (1) SA 147
(A). Cf
B
& H Engineering v First National Bank of SA Ltd
[1994] ZASCA 152
;
1995 (2) SA
279
(A) at 291F-G and
First National Bank of Southern Africa Ltd
v East Coast Design CC & others
2000 (4) SA 137
(D) at
141-2. See J C Stassen and A N Oelofse ‘Terugvordering van
Foutiewe Wisselbetalings: Geen Verrykingsaanspreeklikheid
sonder
Verryking nie’ (1983) 4
Modern Business Law
137 at 143
and 145; Jacques du Plessis
Unjustified Enrichment
at 242 and
Daniel Visser
Unjustified Enrichment
at 354 ff. See, however,
Catherine Joy Maxwell
Aspects of Multi-party Enrichment in South
African Law – A Comparison with German Law
(unpublished
LLD thesis, University of Cape Town) (2006) at 302 ff.
21
The
Selective Voet being the Commentary on the Pandects
translated
by Percival Gane 6.1.8. See the discussion of Stassen and Oelofse
‘Terugvordering van Foutiewe Wisselbetalings’
at 139-140
and also Lord Patrick Grant Elchies
Annotations on Lord Stair’s
Institutions of the Law of Scotland
(1824) para 1.7.9 at 39 ff.
22
12.6.9.
Voet 12.7.2 stated that an action for the recovery of what was paid
without cause lies ‘when a third party pays
money of mine to
his own creditor without my consent; since certainly as regards me
my cash is in the possession of a third party
without cause.’
It is suggested that in our law the owner of the money will succeed
only where the creditor received the
money in the absence of a
causa
retinendi
or not
ex causa onerosa
. See
First National
Bank of Southern Africa Ltd v East Coast Design CC & others
2000 (3) SA 137
(D&CLD) at 142A-D and 144A-C.
23
Scottish
Law Commission
Recovery of Benefits Conferred under Error of Law
Discussion Paper 95 (1993) para 2.175.
24
Vereins-
und Westbank AG v Veren Investments & others
2002 (4) SA 421
(SCA) paras 11 and 12.
25
B
& H Engineering
at 287A.
26
See
R H Christie and G B Bradfield
Christie’s The Law of
Contract in South Africa
6 ed (2011) at 71-2.
27
Christie
The Law of Contract in South Africa
at 399-401 and see
Ericsen v Germie Motors (Edms) Bpk
1986 (4) SA 67
(A).
28
See
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd
[1991] ZASCA 190
;
1992 (1) SA
783
(A);
Columbus Joint Venture v ABSA Bank Ltd
2002 (1) SA
90
(SCA).
29
See
ss 4
and
5
of the
Prevention of Organised Crime Act 121 of 1998
. See
further regulations 47 and 50 of the Banks Act: Regulations, GN
R1033, GG 34838, 15 December 2011; Chapter 3 of the
Financial
Intelligence Centre Act 38 of 2001
.
30
See
eg
Kearney NO v Standard Bank of South Africa Ltd
1961 (2) SA
647
(T) at 650 and
Muller NO & another v Community Medical
Aid Scheme
2012 (2) SA 286
(SCA) para 13.
31
[1997] ZASCA 71
;
1998
(1) SA 242
(SCA) at 251G-H
.
32
Cf
Roestof v Cliffe Dekker Hofmeyr Inc
(34306/2010) [2011]
ZAGPPHC 219 (2012) paras 47 and 50;
Muller NO & another v
Community Aid Scheme
para 13. See Malan, Pretorius and Du Toit
Bills of Exchange
para 202 at 276.