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2022
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[2022] ZAFSHC 161
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Andre Kock en Seun Vrystaat (Pty) Ltd v Willem Stephanus Snyman N.O and Another (5180/2021) [2022] ZAFSHC 161 (27 June 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5180/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
ANDRE
KOCK EN SEUN VRYSTAAT (PTY)
LTD
Applicant
And
WILLEM
STEPHANUS SNYMAN N.
O
1
st
Respondent
[In
his capacity as trustee of the Paradigm Bemarkings Trust]
BEATRIX
ENGELA SNYMAN N.
O
2
nd
Respondent
[In
her capacity as trustee of the Paradigm Bemarkings Trust]
REASONS:
Delivered by email to the parties’ legal representatives and by
release to SAFLII. The reasons shall
be deemed to have been handed
down at 11h00 on 27 June 2022.
[1]
On 10 March 2022 I granted an order in terms of which the respondents
in their capacities
as trustees of the Paradigm Bemarkings Trust were
ordered to pay the applicant an amount of R1 021 745.20 together with
interest
and costs. I thereafter undertook to provide my written
reasons in that regard at a later stage, hereunder are my reasons for
making
the said order.
[2]
The applicant, a livestock seller and auctioneer claimed payment of
the amount of
R1 259 379.74 against the respondents for the
livestock sold and delivered and delivered to the Paradigm Bemarkings
Trust
(“the Trust”).
[3]
It was common cause that:
3.1.
On 17 June 2021 Mr Henry Russel-Brett Wille, the director of the
applicant concluded a partly
written and partly oral agreement of
sale of livestock with the first respondent, Mr Snyman in terms of
which Mr Snyman bought
118 calves from the applicant on behalf of
Trust for an amount of R1 259 379.74.
3.2.
Pursuant to the said agreement, the Trust took delivery of the calves
on 22 June 2021 whereafter,
an invoice for the sum of R1 259 379.74
was sent from the applicant’s email address
[....]
to
the Trust’s email address provided by Mr Snyman,
[....]
.
The applicant’s email was intercepted by an unauthorised
third party, the invoice was reconfigured by replacing the
applicant’s banking details with the hacker’s details
then sent to the Trust as if it emanated from the applicant’s
email account. The Trust then paid the purchase price due to the
applicant into the hacker’s banking account (“the
fraudulent account”).
3.3.
The Trust reported the fraud to the police and to its banking
institution First National Bank.
On 7 October 2021, the Trust
executed a deed of cession in favour of the applicant in terms of
which the Trust acknowledged its
indebtedness to the applicant in the
amount of R1 259 379.74 and ceded its rights and claims
against First National Bank
for the recovery of the said amount to
the applicant.
3.4.
The Trust failed to pay the invoice which led to the applicant
instituting these proceedings
claiming an amount of R1 259 379.74
plus interest and costs. The Trust responded by paying a sum of
R237 634.54,
a balance of R1 021 745.20 was still outstanding.
[4]
It was the applicant’s case that the forensic investigation
conducted by the
applicant’s forensic expert, Professor Daniel
Christoffel Myburgh into both the applicant’s and the Trust’s
email
accounts determined that the email account that was compromised
at the time of the incident was the Trust’s email account.
The
hacker used the Trust’s email as a point of entry to mislead
the Trust into making a payment into the fraudulent account
and it
was more likely to have been someone who had knowledge of the
transaction. Annexure “DM2” attached to Professor
Myburgh’s affidavit is the forensic report in that regard.
The applicant has nevertheless performed its obligations
in terms of
the agreement by delivering the calves to the Trust and despite
having admitted liability to pay the applicant and
also executed a
deed of cession in favour of the applicant for the satisfaction of
the debt,
[1]
the Trust has since
failed to pay the purchase price.
[5]
Relying on
Mannesmann
Demag (Pty) Ltd v Romatex Ltd and Another
[2]
and
Galactic
Auto (Pty) Ltd v Venter
[3]
counsel for the applicant,
Mr. Van Aswegen argued that the fact that the Trust had made the
outstanding payment into a fraudulent
account does not absolve it
from paying the applicant. The responsibility to seek the applicant
as a creditor was on the Trust
as the debtor including to ensure that
the payment was paid into the correct account. Furthermore, the facts
which gave rise to
the applicant’s contractual right to payment
were uncontroverted, the Trust had failed to raise a valid defence to
the applicant’s
claim, a referral of the application to hearing
of oral evidence as proposed by the Trust was not necessary as the
order is merely
sought to provide the Trust with an opportunity to
gather evidence to prove that its email was not hacked whereas even
if the Trust
succeeds in doing so that would not constitute a defence
to the applicant’s claim.
[6]
On the other side, the Trust disputed liability to pay on the grounds
that there was
no conclusive evidence that the fraud emanated from
its email account. The findings in the applicant’s expert
report were
inconclusive and had no value until they are challenged
by the Trust’s own expert and also tested in the trial. The
Trust
had not been able to obtain its own expert due to time
constrains the matter should therefore be referred to trial and only
then
the Trust’s liability can be established. Counsel for the
Trust, Mr. Cronje argued that the court might even find that on
the
basis of the documents that were received by the Trust, it could not
be said that they did not originate from the applicant’s
email
address and that payment would be made into a fraudulent account. The
court might actually find that it would be fair and
just that the
applicant bears responsibility for the loss alternatively, that both
parties should share the loss.
[7]
I was not persuaded by the Trust’s contention that the matter
ought to be referred
for hearing of oral evidence
for the reasons that, the Trust’s application in this regard
was predicated merely on providing the Trust with an opportunity
explore a defence to the applicant’s claim because having
regard to what was averred in the parties’ affidavits,
t
here were no real factual
disputes between the parties therefore the matter could be determined
on the papers.
[8]
Concerning the Trust’s liability to pay, the Trust contended
that it could not
be held liable to pay the outstanding balance
including the full purchase price to the applicant due to the fact
there was no conclusive
evidence that the hack emanated from its
email account.
[9]
I disagreed with the Trust’s contention on this aspect as the
Trust’s
liability to pay the applicant would have only been
discharged by payment to the applicant. Where a payment is effected
by way
of an Electronic Funds Transfer (EFT) as in this case, the
responsibility of verifying the creditor’s banking details
before
making the payment lies squarely on the debtor. In this
matter, the Trust had merely assumed that the email it received was
from
the applicant and then went on to make a payment into the
banking account provided in the said email without having taken any
steps
to verify such information. The Trust could therefore not rely
on that payment in defence of the applicant’s claim. See
paragraph
29 to 50 in
Galactic Auto (Pty) Ltd.
[10]
It
was for these reasons above that I held that the applicant had
succeeded in making out the case
for
the payment it sought from the Trust.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of the applicant: Adv.
W.A. Van Aswegen
Instructed
by: Phatsoane
Henney INC.
BLOEMFONTEIN
Counsel
on behalf of the respondents:
Adv. P.R. Cronje
Instructed
by: Lovius
Block
BLOEMFONTEIN
[1]
Annexure
“FA12” of the applicant’s founding affidavit.
[2]
1988 (4) SA 383
(D) at 389 F-390D.
[3]
(4052/2017) [2019] ZALMPPHC 27.