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[2021] ZAGPJHC 670
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MTN (Pty) Ltd v Molopa (36678/2013) [2021] ZAGPJHC 670 (30 July 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 36678/2013
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
In
the matter between:
MTN
(PTY)
LTD
Plaintiff
and
MOTLATSI
MOLOPA
Defendant
Judgment
MDALANA-MAYISELA
J
1.
The plaintiff has instituted an action
against the defendant for damages. In Claim A of the amended
particulars of claim the plaintiff
seeks payment of the sum of R480
873,27 for damages allegedly suffered as a result of the defendant’s
failure to comply with
the policies, procedures and processes, abuse
of position of trust, attempted fraud and/or fraud
.
The plaintiff further seeks interest on the aforementioned amount
from 15 July 2013 to date of payment; and costs for the recovery
of
the said amount, including legal costs.
2.
In Claim B of the amended particulars
of claim the plaintiff seeks a declaratory order that upon
termination of defendant’s
employment by the plaintiff on 15
July 2013, the defendant is liable to the plaintiff in the sum of
R480 873,27; that MTN Fund
is authorized to deduct the defendant’s
pension benefits in the sum of R211 859,93 or any greater amount
which accrued to
the defendant and pay over the such amount to the
plaintiff in terms of section 37D(1) of the Pension Fund Act 24 of
1956 (“the
Act”); and further that the defendant is
ordered to pay the plaintiff the difference of R480 873,27 from the
amount deducted
and paid over to the plaintiff by the MTN Fund. At
the commencement of the proceedings I was informed by the legal
representatives
of the parties that the plaintiff is no longer
pursuing Claim B.
3.
The defendant in his plea is disputing the
abovementioned claims and puts the plaintiff to the proof thereof.
The defendant in his
plea further raised two points
in
limine
. Firstly, that there is a
pending litigation relating to this action; and secondly, that the
allegations made against the defendant
are too wide and vague, and
that the issue between the parties could have been addressed through
poor capacity hearing and not
through the civil action. At the
commencement of the proceedings I was informed by the legal
representatives of the parties that
the points
in
limine
no longer require determination
by this Court.
4.
To prove Claim A, the plaintiff called five
witnesses. They are Mr Mervyn Govender, Mr Aslam Hassan, Ms Lind
Mayedwa, Mr Petrus
Daniel Gerhardus Steyn and Ms Hilda Ramlakan. The
defendant testified in his defence and also called Ms N Dlamini as
his witness.
BACKGROUND
5.
The plaintiff is Mobile Telephone Networks
(PTY) Ltd, a company duly incorporated and registered in accordance
with the Company
law of the Republic of South Africa. At all material
times relevant to the plaintiff’s claim, the defendant was
employed
by the plaintiff as Supervisor responsible for Handsets
repair at the plaintiff’s After-Sales Walk-in Centre in
Midrand,
Johannesburg. He was a designated Supervisor for national
Walk-in Centres. Prior to working as Supervisor at After-Sales
Walk-in
Centre, the defendant had previously worked in the Channel
Support Unit within the Compliance department. By virtue of his
employment
with the plaintiff, he became a member of the MTN
Retirement Fund, established and registered in terms of the Act for
the benefit
of its employees.
6.
On
14 May 2013 an email was received at the plaintiff’s Head
Office from a customer
nandlo@worldline.co.za
(“the customer’s email”) relating to possible
fraudulent activity (“the possible fraudulent activity”).
The customer’s email referred to an email from the defendant
sent to the customer reading as follows:
‘
Morning
Please find my details
below as discussed.
Regards
Motlatsi Molopa
Walk-in
Centre Supervisor – Email:
Molopa.m@mtn.co.za
Cell:
0832129862’
7.
Attached to the email sent to the customer
by the defendant was a MTN SP Technical Services Collection Advice
copy (“Collection
Advice”) for an Iphone 5 serial number
[....]. On this Collection Advice, was a hand written note, ‘
Standard
Bank, Motlatsi Molopa, ACC: [....]’
.
8.
On 16 May 2013 the plaintiff’s
Call Centre department Manager, Itumeleng Kutumela forwarded the
customer’s email to
the Senior Manager, High Volume Repair
Centre (“HVRC”) department, Lesley Ogle requesting him to
review the possible
fraudulent activity. On 22 May 2013 Mr Ogle
forwarded Ms Kutumela’s request to the Manager, Compliance and
Support HVRC department,
Mr Mervyn Govender asking him to investigate
the possible fraudulent activity.
9.
Mr Govender and his team conducted a
preliminary review of the possible fraudulent activity and related
transactions. They identified
few irregularities on the reviewed
transactions and Mr Govender submitted his report to Mr Ogle. On 18
June 2013 Mr Govender forwarded
the customer’s email to
Forensic Senior Manager, Audit and Forensic Services department, Mr
Petrus Steyn for a full Internal
investigation. Mr Steyn has BTech
Forensic Investigations Degree from UNISA, and is a Certified Fraud
Examiner by the Association
of Certified Fraud Examiners.
10.
Mr Steyn and his team conducted a full
internal investigation in terms of the MTN-SA Disciplinary Code
2011-POL-000620 dated 16
April 2012. The internal investigation’s
scope covered the possible fraudulent activity and other related
suspicious transactions
done on Repair Management System (“RMS”)
for the period 1 January 2012 to 31 May 2013. The relevant
transactions related
to payments received by an RMS user: “95-17”
to the value of R480 873.27 where no record of actual money received
could
be found. These transactions reflected payment received on the
Job Card System, Challenger (“Challenger”) and therefore
enabling the dispatch of handsets to customers although no actual
money was received.
11.
Mr Steyn, on completion of the internal
investigation, and in terms of MTN-SA Fraud Risk Management
Framework, prepared and submitted
an Internal Forensic Investigation
Report to Mr Govender. Various irregularities were found during the
internal investigation and
those will be dealt with in the body of
this judgment.
12.
During the internal investigation it was
found that the RMS user: “95-17” was allocated to the
defendant. The defendant
had access to RMS to receive payments when
he was still employed in Channel Support Unit under the leadership of
Mr Govender. His
authority to transact on RMS was not revoked when he
left Channel Support Unit and joined After-Sales Walk-in Centre under
the
leadership of the National Manager, Ms Hilda Ramlakan.
13.
Mr Steyn in his Forensic Report recommended
that the plaintiff consider taking disciplinary action against the
defendant. Ms Ramlakan
initiated a disciplinary hearing. The
defendant was placed on special leave during the period of the
internal investigation. On
the 8
th
of July 2013 when served with a charge sheet, he tendered his
resignation. He was charged with failure to carry out his duties;
abuse of position of authority; fraud and/or attempted fraud. The
disciplinary hearing was held on 12 July 2013 in his voluntary
absence. On 15 July 2013 he was found guilty on all charges. The
Chairperson of the disciplinary hearing recommended immediate
dismissal. On the same day the he was dismissed from his employment
by the plaintiff with immediate effect.
14.
On 1 October 2013 the plaintiff instituted
the action against the defendant for damages on the grounds of
failure to carry out his
duties, abuse of position of authority,
fraud and/or attempted fraud.
15.
The plaintiff bears the onus to prove Claim
A, which stands for determination, on a balance of probabilities.
FAILURE
TO CARRY OUT DUTIES
16.
The plaintiff avers that during the period
January 2012 to May 2013, the defendant failed to carry out his
duties as a Supervisor
in After-sale Walk-in Centre in that he failed
to implement relevant financial and administrative policies,
processes and procedures
(“PPPs”). The plaintiff further
avers that the defendant did not ensure that payments were received
from the plaintiff’s
customers in accordance with the PPPs, and
that he misled the plaintiff into believing that the payments were
received whereas
no payments reflected in the plaintiff’s bank
account. The defendant denies these averments and puts the plaintiff
to the
proof thereof.
17.
I first deal with the documentary evidence
submitted by the plaintiff. MTN Values Dictionary outlines the
meaning of two Brand Values
of Leadership and Integrity, and the
behaviour expected from the employees of the plaintiff, including the
defendant. It provides
that the employees of the plaintiff shall be
accountable, honest, do what is right, truthful, trustworthy,
reliable, transparent,
ethical and apply sound judgment (i.e adhering
to company policy or procedure). The defendant at all material times
was aware of
these values as evidenced in the Main Appraiser on which
the defendant captured his KPI’s.
18.
The HVRC Walk-in Centre Handset Management
Process and Procedure (“Process and Procedure”) sets out
the consistency
across all HVRC Walk-in Centres. It sets out the
procedure to be followed when a customer arrives at Walk-in Centre
with a faulty
handset and the end to end process from customer
engagement, book-in, receiving, dispatching and storage of repaired
handsets to
the HVRC and the return leg into the Walk-in Centre,
implementation in accordance with Corporate Policies and the relevant
Clause
requirements of ISO 9001: 2008. It was prepared by Ms
Ramlakan. It was published online on 31 December 2011 and the Hard
Copy was
printed on 14 February 2012. The Hard Copy’s effective
date is the printing date. The Soft Copy’s effective date is
the publication date. A Soft copy of the Process and Procedure was
submitted as evidence.
19.
In terms of the Process and Procedure, the
Walk-in Centre Manager and Supervisor are accountable and responsible
for the implementation
of this Process and Procedure. Non-compliance
with the Process and Procedure will lead to a disciplinary action
being taken according
to the disciplinary code and grievance
procedure of MTN and/or MTN SP.
20.
In terms of sub-paragraphs 1.1, 1.7, 1.9
and 1.14 of the Process and Procedure, where the customer does not
have the POP or the
handset is out of warranty or warranty could not
be validated, the Walk-in Centre staff will take in a handset for
repair but must
inform the customer of the applicable charges before
repair. The customer will be contacted via sms for a repair
quotation. On
customer’s acceptance of the quotation, repair
will be done. On customer’s rejection of the quotation, the
handset
will be returned to the Walk-in Centre for collection. After
the repair process has been explained to the customer, the staff will
continue to book-in the handset onto Challenger system. After the job
has been done and the handset is ready for collection, the
staff will
record the customer collection on Challenger to close job card.
21.
The HVRC Handset Collection Policy
(“Policy”) prepared by Mr Walter Maseko of SLA Procedural
& Compliance department
defines the list of rules governing the
process of releasing repaired or unrepaired handsets back to the
customers. It is to ensure
that all released handsets are given to
the correct customer including accessories and that no repaired
handsets are released without
confirmation of full payment received
where required. The policy includes the rules governing the process
of releasing handsets
from the point where a customer collection
transaction is verified to the point where the job card for the
collected handset is
closed.
22.
The policy applies to all the staff within
HVRC, including outsource partners, contractors and security
personnel. Where an employee
is suspected of breaching this policy,
an internal investigation will be undertaken, depending on the
outcome, civil and/or criminal
legal action could be taken against
the employee. It is the responsibility of the Regional HVRC Manager,
Team Leaders, and or Senior
Leaders in the Technical Division to
ensure that this Policy is adhered to by all technical staff. The
Soft Copy of the Policy
has been submitted as evidence. The Soft Copy
of this Policy was published on 30 April 2011. The Hard Copy printing
date was 8
July 2013. The Hard Copy of this Policy was only valid on
printing date.
23.
In terms of sub-rule 3.2 of the Policy a
handset shall be released to the customer when an original job card
or positive identification
has been provided; and the amount
outstanding for out of warranty repairs has been paid up, and the
outstanding balance on the
job card is zero. Proof of payment may be
required.
24.
Sub-rule 3.4 of the Policy provides as
follows:
‘
If
a payment has been made on a job card / service request, the customer
shall be required to prove the payment by means of a POS
receipt from
a service centre, with a valid bank stamped deposit slip or EFT:
3.4.1 Out-of-warranty
handsets shall be invoiced in RMS when the amount outstanding has
been paid;
3.4.2 The invoice
number and value must be captured onto the Repair Management System
in order to clear the outstanding balance
to zero;
3.4.3 A copy of the
POS invoice or bank deposit slip must be made and kept with the
despatch note for the related job card / service
request.
25.
At all material times the defendant was
aware of the Policy and Process and Procedure, as evidenced by the
email sent by Ms Ramlakan
to the employees in her department,
including the defendant, dated 3 October 2012 attaching the PPPs and
advising the employees
to familiarize themselves with the PPPs. The
defendant also sent these PPPs to the staff on 19 October 2012.
26.
According to defendant’s Job Profile
submitted by the plaintiff, his job description as a Supervisor in
Walk-in Centre entailed
provision of day-to-day management, support
and guidance to the Walk-in Centre, implementing plans, controls and
standards for
optimum performance and alignment with Consumer Channel
(Branded) and MTN strategies. In relation to internal processes he
was
required to manage cash for the Walk-in Centre in accordance with
PPPs governing cash management; to ensure the daily capturing
of
relevant financial and administrative documentation as per processes,
policies and systems defined by MTN SA; and to implement
MTN
policies, processes and systems at POS level, ensuring compliance and
making recommendations for corrective actions where necessary.
The
defendant should have been aware of the aforementioned PPPs from the
date of their online publication as he was responsible
for the
implementation of the PPPs and compliance therewith.
27.
I now deal with the oral evidence led by
the plaintiff and the defendant. It is common cause that, at all
material times, the RMS
user code: 95-17 was allocated to the
defendant; that it was system generated to a particular employee; and
that it could not be
shared by employees.
28.
It is also common cause that the
plaintiff’s ABSA banking details would be sent via sms to the
customers for payment of repair
charges. That there were two options
for payment by customers. First option was to make EFT or to deposit
directly into plaintiff’s
ABSA bank account. Second option was
to make payment at any MTN branded store.
29.
It is also common cause that it was not
within the scope of responsibility of Walk-in Centre employees to
receive payment from customers
for repair charges. Their
responsibility was to validate payment on Challenger before
despatching a handset to the customer. The
handset could only be
dispatched to the customer when the balance on Challenger was zero.
30.
Ms Linda Mayedwa, the plaintiff’s
Warehouse Receiving Supervisor, testified that she knew the defendant
from when the HVRC
department was based within the Warehouse and they
served together in the Employment Forum. In 2013 she phoned the
defendant asking
for a quotation for the screen repair of her iPhone.
The defendant said that it would depend on the size of the phone and
advised
her to book-in the phone for quotation. She then took her
phone to the defendant at Walk-in Centre. She received a quotation of
plus R2 500.00 via sms. She accepted the quotation.
31.
The following day the defendant phoned her
advising her that the handset was ready for collection. She told him
that she would collect
the handset during lunch time and she asked
for MTN HVRC’s banking details in order to deposit the repair
charge. He said
that she didn’t have to deposit the money into
the bank and that he gave her a staff discount and so she could only
bring
R1 500.00.
32.
During lunch time her colleague gave he a
lift to Walk-in Centre. When she was by the gate she gave the
defendant a call informing
him that she was in the premises. He told
her to come to the canteen area. She went to him, gave him R1 500.00
and he gave her
the iPhone. Thereafter she left. The canteen is an
open space and is on the same floor with the reception area.
33.
Later on she got a call from Mr Steyn
asking her to write an email to him and explain how the defendant
assisted her with her iPhone
repair. On 5 July 2013 she sent an email
to Mr Steyn as requested. Mr Steyn in his testimony confirmed the
evidence of Ms Mayedwa
in respect of the email she sent to him
34.
It is common cause that Ms Mayedwa’s
job card is 3324202. The defendant processed her job card. The
quotation amount was R2
516.26.
35.
It is also common cause that the defendant
actioned payment for her job card on RMS on 16 January 2013. The RMS
report submitted
in Court shows that no actual payment was received
by the plaintiff for Ms Mayedwa’s job card.
36.
The only issue in dispute is whether the
defendant received R1 500.00 cash from Ms Mayedwa in contravention of
the PPPs, and whether
he gave her the handset at the canteen.
37.
The defendant denied receiving R1 500.00
cash from Ms Mayedwa. He denied that he met Ms Mayedwa at the
Canteen. He did not give
an explanation as to why he did a write-off
for Ms Mayedwa’s job card if Ms Mayedwa accepted the quotation
of R2 516.26 for
the repair of her phone. He informed Mr Steyn that
he did write-offs for difficult customers. The evidence before me
shows that
Ms Mayedwa was not a difficult customer, she was willing
to pay cash for the repairs and she paid.
38.
I find that Ms Mayedwa’s evidence is
more probable and is true. The defendant testified that Ms Mayedwa is
a person of integrity.
He corroborated Ms Mayedwa’s evidence
from her first call about a request for quotation until when the
defendant called her
advising her that the handset was ready for
collection. Her evidence, on how she paid for the repair of her
handset was corroborated
by Mr Steyn.
39.
The defendant and his witness Ms Dlamini
testified that Ms Mayedwa was trying to implicate the defendant in
this matter because
she was close to his wife, and at that time his
wife was bitter because he was cheating with a colleague. The
bitterness these
witnesses were testifying about was based on
rumours. I rejected that evidence during the trial as hearsay
evidence. I find the
defendant and Ms Dlamini’s testimonies in
trying to discredit Ms Mayedwa as a witness, as fabrication. I accept
the evidence
of Ms Mayedwa that she gave the defendant R1 500.00 cash
for payment for the handset repair at the Canteen.
40.
The defendant knew about the PPPs on the
payment for handset repair. Before joining Walk-in Centre Department,
he worked as an administrative
officer in Channel Support Department
where he was performing financial transactions on RMS payment system.
He had knowledge of
the ABSA banking details that were being provided
to the customers to pay for handset repairs. Ms Mayedwa requested the
plaintiff’s
banking details for payment for the repair of her
handset. The defendant failed to provide Ms Mayedwa with ABSA banking
details.
He also did not advise her to pay at any MTN branded store.
He received R1 500.00 cash from Ms Mayedwa for the repair of her
handset
and he did not deposit it into the plaintiff’s ABSA
bank account. He received the R1 500.00 cash for his own benefit. He
contravened the PPPs.
41.
Mr Steyn testified that he was notified by
Mr Govender regarding two incidents of suspected fraudulent
activities relating to job
card number 3500798 and a job card number
3500708.
42.
In relation to job card number 3500798, Ms
Sithenjiwe Dlomo on 14 May 2013 booked-in her iPhone 5 serial number
[....] for the repair.
The handset was physically damaged and it was
out of warranty. The handset was exchanged same day. The defendant
processed a write-off
on RMS for this job card. The customer and the
defendant signed a collection advice same day. The defendant wrote
his standard
Bank account details on the collection advice.
43.
Ms Dlomo did not make payment into
his bank account and she reported this incident at the plaintiff’s
Head Office and that
triggered the internal investigation into this
matter. The defendant admitted to Mr Steyn and in Court that those
were his banking
details.
44.
The defendant was well aware of the
plaintiff’s PPPs on payment for repairs by customers. He knew
that according to the PPPs,
the customer would be advised to pay at
any MTN Branded store or into ABSA bank account. He failed to advise
the customer accordingly.
He contravened the PPPs on payment for
repairs by giving the customer his banking details and by dispatching
the handset without
proof of payment.
45.
In relation to job card 3500708, the HTC
ONE X S720E with IME number 353426056082662 was booked-in for repair
on 28 March 2013.
The quotation was sent to HVRC and accepted by the
defendant on 3 April 2013. The exchange of the handset was approved
and replaced
with the one with IME number 354461057848687. On 9 April
2013 a payment was recorded on Challenger and the handset was
dispatched
same day. The HVRC management queried the payment
transaction on 20 May 2013 and requested a proof of payment from the
defendant.
The defendant respondent by saying that he was busy and
would check. The defendant made payment in the form of cash on 24 May
2013.
The defendant did not dispute Mr Steyn’s testimony in
relation to job card 3500708. The defendant contravened the PPPs by
dispatching the handset before the payment was made to the plaintiff.
46.
According to Ms Ramlakan, the defendant
participated in the drafting of the PPPs, and therefore he had
knowledge of them. In terms
of the PPPs, as a supervisor he was
responsible for compliance and implementation thereof.
47.
I find that the defendant contravened
the PPPs, more specifically Sub-rule 3.2 of the Policy, by
dispatching the handsets in job
cards 3500798, 3500708, and 3324202
without first validating payment. He failed to carry out his duties
as a supervisor in Walk-in
Centre department during the period
January 2012 to May 2013. As a result of his failure to carry out his
duties, the plaintiff
suffered damages.
ABUSE
OF POSITION OF TRUST
48.
The plaintiff avers that during the period
January 2012 to May 2013, the defendant abused his position of trust,
in that he continued
to transact on plaintiff’s RMS after
having been appointed into another department which did not have the
authority to use
RMS.
49.
It is common cause between the
parties that the defendant did 287 write-offs on the RMS during the
period January 2012 to May 2013.
It is also common cause that no
actual money was received by the plaintiff for the 287 job cards. It
is also common cause that
the handsets in all the 287 job cards were
dispatched to the customers.
50.
The issue in dispute is whether the
defendant had authority to do write-offs on the RMS when employed as
a Supervisor at After-sales
Walk-in Centre and whether he complied
with the Policy and Procedure applicable to write-offs when doing the
write-offs in issue.
51.
Mr Govender testified that he was a line
manager of the defendant when he was still employed in Channel
Support and Compliance department.
At all material times, the Channel
Support department was responsible for performing financial
transactions on RMS, including write-offs.
The defendant was given
authority and access code to process payment and other financial
transactions on RMS in Channel Support
department because that was
his primary function. It is common cause that the access code Mr
Govender was referring to was RMS
user code:95-17.
52.
The defendant left Channel Support
department when he was appointed a Supervisor in After-sales Walk-in
Centre department. The defendant’s
line manager at Walk-in
Centre was Ms Ramlakan. Walk-in Centre was responsible for servicing
customers, face to face, to do handset
repairs. It was not the
functionality of the Walk-in Centre to process payment and perform
other financial transactions on RMS.
All the employees of
Walk-in-Centre including Ms Ramlakan did not have the authority or
access codes to perform financial transactions,
including write-offs,
on RMS.
53.
Mr Govender stated that the defendant had a
duty to disclose his access code to RMS to Ms Ramlakan when he joined
Walk-in Centre
to ensure that his access code was removed from RMS.
Failure by the defendant to do so amounted to conflict of interest,
because
the plaintiff, from the governance perspective, wanted to
ensure that there was a segregation of duties between the Channel
Support
and Walk-in Centre departments and minimum risk.
54.
Ms Ramlakan testified that the defendant as
a Supervisor in Walk-in Centre did not have the authority neither the
delegation to
utilise RMS. It was not within his scope of
responsibility to perform financial transactions on RMS. She stated
that she also did
not have authority to utilise RMS, neither did she
have access to RMS, neither did she have authority to grant access to
RMS. This
system was utilised by a team of Mr Govender which was a
completely different department. Authorisation for RMS would be given
by the senior management team and it was not in her delegation to
authorise or approve access to any individual. The segregation
of
duties dictated that only the Channel Support department was
responsible to perform write-off or accept payment on RMS.
55.
Ms Ramlakan stated that when the defendant
joined her department she did not know that he had an access code to
transact on RMS,
as a result she did not ask for his access code to
be removed. She became aware that he had access code to RMS when the
defendant
in 2012 failed to validate payment on Challenger before
releasing a handset to the customer. He had actioned the payment on
RMS
where it was not within his scope of responsibility.
56.
Ms Ramlakan issued a written warning to the
defendant in November 2012. This written warning was very clear that
he should not utilise
RMS because he had no authority and that it was
not within his scope of responsibility. She also requested Compliance
department
to remove his access code. She became aware that the
access code was not removed after Mr Steyn’s internal
investigation
was completed. The final written warning did not deter
the defendant as he continued transacting on RMS until the internal
investigation
was conducted in May 2013.
57.
The defendant testified that when he joined
Walk-in Centre, in terms of the PPPs he was required to disclose to
his line manager
all the systems he had access to in order that they
should be removed. This evidence corroborated Mr Govender’s
evidence
that the defendant had a duty to disclose his RMS access to
Ms Ramlakan.
58.
He testified that he declared in
writing to Ms Ramlakan that he had RMS access code to perform
financial transactions. However,
he failed to produce proof of his
written declaration. Ms Ramlakan disputed this allegation when it was
put to her by defendant’s
counsel.
59.
The defendant when asked in his
examination-in-chief if he had authority to transact on RMS as a
Walk-in Centre Supervisor, he gave
three different answers. They
were:
‘
Question:
…were you authorised to work on RMS when you were at Walk-in
Centre?
Answer: M’Lady
I
was authorized
…
Question: Who
authorised you to work on RMS?
Answer: … RMS
was authorised when I first joined the channel support. Then I moved
to the Walk-in Centre as a Supervisor…
when I move to Walk-in
Centre, when I move to another department, all the systems that you
do not need they get taken away. That
process is managed by a team.
So the issue of whether I had authority or not, I thought I had
authority. If I did not have authority that system would have been
taken away
.
…
..
Question: Were you
expressly given authority, as a Supervisor at Walk-in Centre to have
access to RMS?
Answer:….. So
it would have been done expressly
.
Question:…..
was it stated in your job description that as a Walk-in Centre
Supervisor you had a responsibility to use RMS
and to perform
write-offs on the RMS?
Answer: ……then
when you talk about a job description they are not going to be
talking about you have this system or
you have that system. They are
going to be talking about rights, or invoicing, or you know the
action that you have been taken.
So
automatically if you
have authority to write-off that means you have authority to have
RMS. So I will not say someone said you can
use RMS but if you are
authorised to write-off then that means the system that write-off you
able to use it
.
……
..
Question: Were you
given the authority at that stage?
Answer: I was given
M’Lady yes.
Question: who gave you
the authority?
Answer:
It would have
been given by my line manager.
Question:……was
it verbally or in writing?
Answer:
It was given
to me in writing M’Lady
.’
60.
Ms Ramlakan disputed the defendant’s
version that she gave him authority in writing to transact on RMS.
She also stated that
she did not verbally authorise the defendant to
transact on RMS. The defendant failed to produce the said written
authority.
61.
The job description of the defendant did
not entail a responsibility to perform financial transaction,
including write-off, on RMS.
Therefore, the “
automatic
authority
”
the defendant relied on had no basis.
62.
The defendant testified that he thought he
had authority to transact on RMS while employed in Walk-in Centre,
because the access
to RMS that was given to him while employed in
Channel Support department, was not removed when he joined the
Walk-in Centre. Ms
Ramlakan disputed this implied authority, and
testified that his access to RMS was not removed when he joined
Walk-in Centre because
he failed to disclose it to her. She further
testified that when she became aware that he had access to RMS she
took an action
against him and warned him to stop using RMS. He
ignored the written warning and continued to use RMS.
63.
On 4 February 2013 Ms Ramlakan sent an
email to the defendant requesting him to complete the attached sheet
on the analysis of each
user’s current system access plus
functionality on the systems, including RMS. On 13 February 2013 the
defendant sent an
email attaching the completed sheet. On that sheet
the defendant marked his access as ‘Read’ only access.
That declaration
was not true and it was misleading because the
defendant continued to do write-offs on RMS until May 2013.
64.
I accept the evidence of Mr Govender and Ms
Ramlakan that at all material times, the employees, including Ms
Ramlakan and the defendant,
of the Walk-in Centre department did not
have authority to perform financial transactions on RMS. That the
defendant, when he joined
Walk-in Centre, had a duty to disclose his
access to RMS so that it could be removed, as it was not within his
scope of responsibility
to utilise RMS. That when he joined
Walk-in-Centre, he failed to disclose his access to RMS. That when he
was warned to stop transacting
on RMS, he ignored the written warning
and continued to transact on RMS without authority.
65.
I reject the version of the defendant that
he had authority in various forms to transact on RMS while employed
in Walk-in Centre.
I find his version to be false. The defendant was
not a good witness. He was evasive and he contradicted himself in
material respects.
His evidence in-chief around the issue of
authority was so bad that his counsel stated that he was confused by
the testimony of
the defendant.
66.
Mr Govender and Ms Ramlakan gave their
evidence in a clear and satisfactory manner. There were no
contradictions in their evidence
on the issue in dispute. Some
material aspects of their evidence were corroborated and not disputed
by the defendant. Part of their
evidence was also corroborated by
documentary evidence submitted by the plaintiff. I find them to be
credible witnesses.
67.
I find that the defendant misused his
access to RMS that was given to him when he was employed at Channel
Support department, and
that he had no authority to access RMS and
action payments when he worked as a supervisor at Walk-in Centre. I
also find that he
was a dishonest employee and that he misled Ms
Ramlakan when he declared that his access to RMS was ‘
Read
’
only access. I find that defendant abused his position of trust when
he was employed as a supervisor in Walk-in Centre department.
As a
results thereof, the plaintiff suffered damages.
FRAUD
AND/OR ATTEMPTED FRAUD
68.
The plaintiff avers that during the period
January 2012 to May 2013 the defendant performed fraudulent payment
transactions on RMS
and he misrepresented himself by giving a false
presentation of facts to mislead the plaintiff, he drew undue
advantage and benefit
which he was not entitled to, in that he
received, by means of fraud, cash payments from the plaintiff’s
customers in circumstances
in which such payments were not paid over
to the plaintiff.
69.
The plaintiff further avers that during the
period January 2012 to May 2013, the defendant fraudulently performed
287 unauthorised
write-offs on RMS, in that he received, by means of
fraud, cash payments from the plaintiff’s customers, and such
payments
were not paid to the plaintiff. As a result of the said
fraudulent and unauthorised write-offs the plaintiff lost an amount
of
R480 873.27.
70.
The plaintiff in its claim is relying on a
fraudulent misrepresentation and the onus of proof rests with it. The
plaintiff is required
to prove the following:
(a)
A representation of a false fact;
(b)
Knowledge by the representor that the
representation is false;
(c)
The representor must have intended that the
representee should act upon the representation;
(d)
The representation induced the representee
to act upon it;
(e)
And the representee suffered loss as the
result of the representation.
71.
The wrong of fraudulent misrepresentation
or deceit consists in the act of making a wilfully false
representation to another with
intent that he shall act in reliance
on it, and with the result that he does so act and suffers harm in
consequence. The misrepresentation
is made to the plaintiff or an
authorised representative (see
McKerron
The law of Delict (7 ed) 210).
In the
case of a company the misrepresentation is made to a representative
or its board of directors
(S v Heller
1971 2 SA 29
(A) 37.)
72.
At the commencement of the proceedings
counsel for the defendant informed me that the defendant admits that
he performed the write-offs
in issue but denies that he was
unauthorised and that they were fraudulent. The amount is disputed on
the basis that it is exaggerated.
73.
I have already made a finding that the
defendant had no authority to perform write-offs on RMS. What needs
to be determined at this
stage is whether the 287 write-offs
performed by the defendant were fraudulent or not.
74.
Mr Hassam, the plaintiff’s Aftersales
billing supervisor, testified that he is responsible for
administration of the Challenger
system. He also has the knowledge of
Repair Management System. He has been working for the plaintiff for
20 years. During the period
between January 2012 and May 2013 he was
a technical support supervisor. He was responsible for administration
of Challenger and
maintenance of the users nationally.
75.
His testimony was in relation to the
reports extracted from RMS and Challenger systems. The reports were
for the period between
January 2012 and May 2013. He explained that
RMS is a payment system and Challenger is a system where a job card
is created and
the status of the job card is updated. Challenger and
RMS are two stand-alone systems and they are running through an
integration
module. The Challenger was integrated into RMS for
transacting and payment purposes. What happens is that when you
transact on
RMS and enter a Challenger job card number, RMS pulls the
last available status from Challenger telling you what the status of
the job was at the time when the transaction was processed. If the
status is ‘Awaiting collect, notify’, the Challenger
will
display an amount outstanding on the job card. Before the job card
can be closed, the outstanding balance needs to paid or
zeroed off.
76.
When you action payment on RMS in relation
to a job card, the information is written back into Challenger saying
the job has been
completed. There is a slight time difference from
the time a transaction is performed on RMS till it reflects on
Challenger. Once
the outstanding balance has been paid or zeroed off,
the customer is notified to come and collect a handset.
77.
The report extracted from RMS shows that
all the transactions on that spreadsheet were done by an employee
with a code number 95-17.
It is common cause that the code belongs to
the defendant and he admitted that he performed all these
transactions.
78.
On the RMS spreadsheet there is a column
containing the number [....]. This number is an Epics account number.
Epics is a billing
system that the plaintiff uses. This account
number is specifically allocated to technical division for repair
services, meaning
any payment into this account number is journal to
the technical services account. It allows the plaintiff to identify
revenue
that is coming into the business from technical services
division. The amount that reflects on Challenger system as
outstanding
would have to be paid into this Epic account.
79.
There is also a column called ‘OMS
payment receipt number’. It is a point of sale system that is
being used at MTN branded
stores. For repairs done, a customer has
two options for payment. The first option is to pay into ABSA bank
account which is assigned
to technical division The second option a
customer makes payment on the OMS point of sale system at any MTN
branded store and will
receive the proof of payment. The user of the
RMS captures the payment transaction or receipt number on the OMS
payment receipt
column.
80.
If paid into ABSA bank account a customer
shall bring the proof of payment to Walk-in Centre and the
transaction will be processed.
The proof of payment will be captured
on the ‘ABSA Deposit’ column.
81.
The RMS report submitted in Court showed
that in all the 287 transactions done on RMS by the employee code
number 95-17, the ABSA
Deposit column and OMS Payment Receipt columns
were left blank. The last column ‘Comment’ on the
spreadsheet says ‘No
payment’. Mr Hassam explained that
‘No Payment’ in ‘Comment’ column meant that
the payment was merely
processed in RMS to zero off the Challenger
job (meaning a write-off was done).
82.
There was no physical or actual payment
made at MTN branded store or into the plaintiff’s ABSA bank
account for all these
job cards. The handsets on all these write-offs
were out of warranty therefore the customers would have been billed
for the repairs.
The defendant captured the job cards as “paid”
in column ‘[....]’ without the actual payment been made
into ABSA bank or MTN branded store. The total amount captured on RMS
by the defendant between January 2012 and May 2013 was R480873.27.
83.
Mr Hassam stated that Walk-in Centre
employees were not authorised to have access to RMS. They were not
allowed to take payments
directly from customers. They were not
authorised to perform write-offs. All write-offs had to be authorised
by the Channel Support
manager, Mr Govender. And only after approval
that a Channel Support administrator would perform the write-off.
84.
Mr Govender explained that one of the daily
responsibilities Channel Support staff had was to receive the bank
statement, confirm
all the repair payments received the day before,
process and invoice the transactions on RMS. When the invoicing was
completed,
the outstanding amount on Challenger would then be
automatically zeroed off. Thereafter, the Walk-in centre employee
would release
the handset to the customer.
85.
When the payment was made at MTN branded
store, the customer would be required to bring a physical proof of
payment, in the form
of a receipt for collection of the handset. The
Walk-in Centre employee would be required to validate the proof of
payment by doing
physical check and login a USD call to Channel
Support team attaching the proof of payment and confirming that
he/she validated
it. On that call he/she would ask Channel Support
team to invoice and release the job on RMS so that the handset could
be handed
over to the customer. The Channel Support team would
validate payment, invoice it and release the job.
86.
Mr Govender stated that there was no other
option for payment, however in exceptional circumstances and only on
authorization from
the Channel Support manager, the Channel Support
team was allowed to effect a discount on the system whether it was
ten percent
or twenty percent, or would waive (write-off) a repair
charge where there was a system error, or the technician had selected
a
wrong part, or a warranty was not properly assessed at the very
onset, or the customer produced proof of purchase post repair.
87.
There was a specific procedure that needed
to be complied with before waiving a payment. The request for a
waiver of payment had
to be in writing. It would be sent by the
supervisor of the department to the line manager. The line manager
would be the first
to check and validate the reason for the request
to see if it was an exceptional circumstance. If satisfied, the line
would forward
the request to the Channel Support manager, Mr
Govender. As the compliance manager, Mr Govender if satisfied, would
approve the
payment waiver request and instruct his Channel Support
team to proceed with the waiver transaction.
88.
Mr Govender stated that the defendant had
no authority to process waiver / write-off transactions on RMS. It
was not within his
scope of work, neither his function required him
to perform such transactions. He had no reasons whatsoever to process
such transactions.
Moreover, he did not comply with the
aforementioned procedure and manual controls for a payment waiver.
89.
It was put to Mr Govender that the
defendant would testify that whatever transaction he processed was
authorised by Ms Ramlakan,
and that these write-offs to go on for two
years without being noticed showed that there was something wrong at
MTN. The first
transaction could have been picked up within a week.
90.
Mr Govender disputed that they were
authorised, he stated that just by mere number of transactions over
that period would have been
questionable, and him as a final
signatory on such authorisations he would not have signed off on
them.
91.
Furthermore, it was put to Mr Govender that
the aforementioned payment waiver procedure didn’t apply to the
defendant. He
was on another platform as a supervisor. Matters had to
be escalated to him, and as part of his job he had to make quick
decisions,
and those quick decisions were the write-offs. It was
confirmed on behalf of the defendant that all those write-offs were
recorded
on RMS payment system.
92.
Mr Govender disputed that the
aforementioned payment waiver procedure was not applicable to the
defendant. He stated that the plaintiff’s
PPPs, including the
aforementioned payment waiver procedure applied to everyone in the
relevant departments of MTN. The defendant
as the supervisor of the
department was directly responsible for ensuring that all the
employees, including himself were fully
compliant with the company
policies, processes and procedures. Nobody was above the PPPs.
93.
It was further put to the witness, that the
defendant did write-offs in the interest of the plaintiff and that
was not a secret.
The write-offs were recorded on the system for
everyone to pick them up. Mr Govender disputed that the write-offs
were done in
the interest of the plaintiff. He said that it was never
the defendant’s responsibility to do write-offs and he was not
authorised.
94.
Ms Ramlakan also explained the
payment waiver procedure in the Walk-in Centre department. That her
team member would prepare a written
request, including the motivation
for a write-off and submit it to her. She would acknowledge a request
and submit it to Compliance
department team, where the Compliance
manager, Mr Govender or a senior manager would sign off on the
write-off document. Thereafter,
a USD call would be logged, where
documents would be uploaded and the Compliance team would process the
write-off. Her signature
on the write-off document would not be an
authority to proceed with the write-off, it would indicate her
approval as a requestor
but the authority lies with the Compliance
senior management team, Mr Govender and Mr Lesley.
95.
She stated that all the write-offs in
question were never requested in writing or verbally by the
defendant. He did not comply with
the aforementioned write-off
procedure. The defendant was not authorised to process those
write-offs on RMS.
96.
The defendant in his defence, led the
evidence of Ms Nomvuso Dlamini, an ex-MTN employee who was a
Challenger Support administrator.
Her responsibility was to extract
challenger reports. She had no access to RMS because she was an
employee of After-sales Walk-in
Centre department. She had access to
Challenger system. She was reporting to the defendant. This witness
was not of any assistance
to the defendant’s case because she
testified about what was recorded on Challenger system. The main
issue in dispute in
this matter is the authority to access RMS and to
perform write-offs on RMS in contravention of the PPPs. It is common
cause that
the defendant performed write-offs on RMS that reflected
on Challenger. It is also common cause that the Walk-in Centre
employees
on reliance on what was recorded on Challenger, released
handsets to the customers.
97.
The defendant has not disputed that there
were no written requests made by him for these write-offs. He
testified that sometimes
he made quick decisions to waive a payment
and other times he got verbal authorisation from management. The
plaintiff denied that
he got verbal authorisation from the management
and led evidence to that effect. Ms Ramlakan said that a verbal
request for a write-off
was not allowed.
98.
Mr Govender stated that a write-off or
payment waiver was only authorised under exceptional circumstances.
The defendant failed
to present evidence showing that there were
exceptional circumstances justifying the waiver of payment in all the
287 write-offs.
His version was that he performed these write-offs in
the interest of the plaintiff, to keep the customers happy. However,
this
reason doesn’t fall amongst the exceptional circumstances
mentioned by Mr Govender. Ms Ramlakan said that it was not necessary
to perform these write offs. The evidence led by the plaintiff that
it suffered loss as a result of the defendant’s conduct,
rebutted the defendant’s version that these write-offs were
done in the interest of the plaintiff.
99.
Furthermore, the write-offs done by the
defendant in relation to Ms Dlomo’s job card 3500708 where he
solicited funds for
his own benefit, and Ms Mayedwa’s job card
3324202 where he received cash R1 500.00 for himself, rebutted his
version that
he performed these write-offs in the interest of the
plaintiff and to keep the customers happy.
100.
The defendant made false representations on
the RMS that the payments in relation to all these job cards were
waived by management,
whereas he knew that the write-offs were not
authorised, and that also he was not authorised to access RMS and
waive payments.
101.
He had intention that his
misrepresentations should reflect on Challenger and that the
plaintiff’s representatives should
act upon his
misrepresentations and release handsets to the customers. The
plaintiff’s Walk-in Centre representatives acted
upon the
defendant’s misrepresentation, made on RMS and reflected on
Challenger, and released the handsets to the customers
in all these
job cards.
102.
He also drew undue advantage and benefit
which he was not entitled to, in that he received cash payments from
the plaintiff’s
customers and such cash payments were not paid
over to the plaintiff.
103.
The defendant’s conduct discussed
above has caused the plaintiff to suffer the loss.
104.
For the reasons mentioned above, I find
that all the plaintiff’s witnesses were credible witnesses, and
that the defendant
and his witness were not credible witnesses. I
reject the defence of the plaintiff in relation to Claim A of the
particulars of
claim as not being reasonably possibly true.
105.
I am satisfied that the plaintiff has
discharged the onus on a balance of probabilities that the defendant
committed 287 counts
of fraud in the form of fraudulent
misrepresentations by performing write-offs without complying with
the PPPs and procedure on
payment waiver, and without the necessary
authority to access RMS.
DAMAGES
106.
The plaintiff has claimed damages in
the amount of R480 873.27 for the loss suffered as a result of the
defendant’s failure
to carry out duties, abuse of position of
trust, and fraud and/attempted fraud.
107.
Where the employee has committed a
misconduct or fraud, the employer is entitled to claim damages
suffered as a result of the employee’s
misconduct.
108.
I have made the findings above, that the
defendant failed to carry out his duties, he abused his position of
trust, and he committed
287 counts of fraud.
109.
In regard to the element of causation, I
have made a finding above, that the plaintiff suffered loss as a
result of the defendant’s
misconduct and fraud.
110.
What has to be determined at this stage is
whether the defendant had intention to cause harm to the plaintiff.
The intention to
cause harm in this case could be inferred from the
proven facts that the defendant received undue advantage and benefit
which he
was not entitled to, by receiving cash payments from the
plaintiff’s customers.
111.
Furthermore, the defendant was issued with
a written warning in November 2012 and warned that he should stop
using RMS to process
unauthorised write-offs. He ignored the written
warning and continued to commit misconduct and fraud until May 2013.
He was not
deterred by the written warning. He abused his position of
trust, as a result the plaintiff suffered damages.
112.
The defendant had a legal duty, as the
employee of the plaintiff, to act positively and comply with the PPPs
and payment waiver
procedure to prevent harm to the plaintiff. His
version that he believed that as a supervisor, the PPPs and payment
waiver procedure
were not applicable to him, created unfavourable
impression about him to the Court. The PPPs expressly provided that
the supervisor
was responsible for ensuring compliance and
implementation thereof. His Job Profile expressly provided that a
resolution of customer’s
query or problem must be within the
parameters set by Company policy. He deliberately contravened the
PPPs and payment waiver procedure
in order to draw undue advantage
and benefit which he was not entitled to. As a result of that
contravention, the plaintiff suffered
loss.
113.
On the reasons stated above, I find that he
had a direct intention to cause harm to the plaintiff.
114.
The plaintiff is entitled by means of
compensation to be placed in the same position as he or she would
have been if the defendant
has not committed the misconduct and
fraud. At common law the amount of the plaintiff’s damages is
therefore the difference
between its present position and the
position in which it would have been had the defendant not committed
the misconduct and fraud
(see
Victoria Falls & TvL Power Co Ltd v
Consolidated Langlaagte Mines Ltd
1915 AD 452).
115.
The plaintiff led oral and documentary
evidence to prove the value of loss. According to the reports
extracted from RMS and Challenger
systems, and the forensic
investigation report of Mr Steyn, the value of loss suffered by the
plaintiff is R480 873.27. I am satisfied
that the plaintiff led
credible evidence to prove the value of loss.
116.
The defendant disputed the amount of
damages on the basis that it was exaggerated. However, he failed to
lead evidence substantiating
his allegation of exaggeration. I
therefore, reject his defence of exaggeration.
117.
In the premises, I find that the plaintiff
suffered damages as a result of the defendant’s misconduct and
fraud discussed
above.
118.
As to costs, I find no reason why costs
should not follow the result.
119.
Accordingly, I make the following order:
119.1
The defendant, upon his termination of
employment on 15 July 2013, is liable to the plaintiff:
(i)
In the amount of R480 873.27;
(ii)
Interest on the aforementioned amount at
the applicable rate of interest from 15 July 2013 to date of final
payment;
(iii)
Costs for recovery of the aforementioned
amount and such costs to include legal costs (inclusive of Counsel’s
costs).
MMP
Mdalana-Mayisela
Judge
of the High Court
Gauteng
Division
(
Digitally
submitted by uploading on Caselines and emailing to the parties. The
delivery of this judgment was delayed because the
Court and the
parties requested a transcribed record of the proceedings immediately
after finalization of the trial. The first
part of the transcribed
record was received in April 2021 and the second part was received in
May 2021)
Date
of delivery: 30 July 2021
Appearances:
On
behalf of the Plaintiff: Adv AM Mthembu
Instructed
by: Mashiane Moodley & Monama Inc.
On
behalf of the Defendant: Mr N Mkhize
Instructed
by: Mkhize Attorneys