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[2019] ZAKZPHC 18
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Firstrand Bank Limited v Khopo and Another (AR497/2018) [2019] ZAKZPHC 18 (29 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Not Reportable
Case No: AR497/2018
In the matter
between:
FIRSTRAND BANK
LIMITED
Appellant
and
SICELO RICHARD
KHOPHO
1
st
Respondent
NIKITA NONKONZO
KHOPHO
2
nd
Respondent
ORDER
a)
The appeal is allowed with costs, such to be paid jointly and
severally by the respondents,
the one paying the other to be
absolved.
b)
The order of the court a quo is set aside and substituted with the
following order:
‘
Judgment
is entered for the plaintiff as follows:
1
Against the first defendant for:
(a)
Payment of the amount of R541 940.00;
(b)
Interest on that sum at the rate of 10.25% per annum from
25 January 2018 to date of payment.
2
Against the second defendant for:
(a)
Payment of the amount of R320 000.00;
(b)
Interest on that sum at the rate of 10.25% per annum from 25 January
2018 to date of payment.
3
The defendants are directed to pay the costs of suit jointly and
severally, the one
paying the other to be absolved.’
JUDGMENT
Delivered
on: 29 March 2019
Gorven
J (Seegobin and Bezuidenhout JJ concurring)
[1]
The appellant sued the respondents for the
following relief:
1
Against the first respondent for:
(a)
Payment of the amount of R541 940.00;
(b)
Interest on that sum at the rate of 10.25% per annum from date of
judgment to date
of payment.
2
Against the second respondent for:
(a)
Payment of the amount of R320 000.00;
(b)
Interest on that sum at the rate of 10.25% per annum from date of
judgment to date
of payment.
3
Against both respondents jointly and severally, the one paying the
other
to be absolved, costs of suit on an attorney and client scale.
At
the trial, Mngadi AJ absolved the respondents from the instance with
costs. He refused an application for leave to appeal but
such leave
was granted by the Supreme Court of Appeal to the full court of this
division.
[2]
Much of what gave rise to this action was common
cause. The appellant offers the service of remote banking via an
application which
can be downloaded to a mobile telephone or other
electronic device. By this means, using the Internet, a customer is
able to remotely
perform certain operations on her or his banking
account. The first respondent made use of this application and
conducted remote
banking by this means.
[3]
Between November 2011 and March 2013, the banking
application malfunctioned. When certain customers transferred monies
from their
bank accounts to other accounts by that means, those
monies were transferred both from their account and the same amount
was transferred
from an account of the appellant itself. This
resulted in those customers receiving twice the amount they had
withdrawn from their
account. The additional amount came from the
appellant’s own account and was not due to those customers.
Between 2 October 2012
and 14 March 2013, the
amounts claimed by the appellant from the respondents were
transferred from the first respondent’s
account to other
accounts of the first and second respondents. This brought about
duplicate transfers to the respondents, one being
from the
appellant’s own account. There was no legal basis for the
transfers from the appellant’s account. As a result,
the
appellant lost those funds and the respondents gained them.
[4]
The action brought by the appellant was
accordingly for the unjustified enrichment of the respondents arising
from this set of circumstances.
In the plea, the respondents denied
that there had been a duplication of the amounts transferred and that
either of them received
monies belonging to the appellant. They
further denied having any knowledge of the malfunction of the banking
application which
gave rise to such duplication. These defences were
abandoned at the trial. The respondents acknowledged that, not only
did the
duplicate transfers take place, the second one of which on
each occasion was from the appellant’s own account involving
its
own money, but that the first respondent had been aware of this.
He was the one who operated both his and the second respondent’s
accounts during this period.
[5]
The first respondent was the only witness called
by the respondents. In his evidence, he claimed to have given certain
sums of money
in cash to an employee of the appellant, one Mrs
Thomas. By the time the matter came to trial, Mrs Thomas had died.
The first respondent
was unable to say how much money had been handed
to her. He could not give dates. He testified that no receipts were
requested
or given because he trusted Mrs Thomas. None of this was
put to the witnesses of the appellant when they testified. None of
this
was pleaded.
[6]
In
Kudu Granite Operations
(Pty) Ltd v Caterna Ltd
,
[1]
the requirements for the enrichment action in that matter were said
to be:
‘(i) whether
Kudu had been enriched by its nominee's receipt of the granite;
(ii) whether
Caterna had been impoverished by procuring that Ruenya deliver the
blocks from its stock;
(iii) whether
Kudu's enrichment was at the expense of Caterna;
(iv) whether
the enrichment was unjustified.’
[7]
The plea goes to the first of these. It denies
that any payments had been made by the appellant. In other words, all
money transferred
into the accounts of the respondents emanated from
their own accounts and was their own money. It was not pleaded that
any of it
had been repaid. This would have gone to the second issue.
Once the original defence was withdrawn, and in any event on the
uncontested
evidence of the appellant, it is clear that the two
respondents were enriched by the receipt of the monies from the
appellant’s
account. At the time of each transfer, the
respondents were so enriched and the appellant impoverished to the
extent of the additional
duplicate payment. It was also conceded by
the respondents, and proved by the appellants, that the enrichment
was unjustified,
in other words had no legal basis. Put simply, this
means that the appellant’s case was made out unless the
respondents could
prove that they had reimbursed the appellant.
[8]
Having abandoned their pleaded defences, the
respondents had no pleaded basis on which to resist the appellant’s
claim. As
I have indicated, the plea did not raise as a defence that
the monies, or any of them, had been repaid. In a trial, the
pleadings
define the issues between the parties. They make clear what
each side has to prove or defend. When once it was admitted that
monies
of the appellant had been received by the respondents without
a legal basis, the
onus
shifted to the respondents to prove non-enrichment.
[2]
The reason for this is clear. The four elements mentioned above had
been proved in respect of each duplicate payment. This entitled
the
appellant to judgment. To resist judgment, the
onus
then shifted to the respondents to show that the situation had been
rectified. This is a matter peculiarly within the knowledge
of the
respondents. Such a defence, involving both the facts and the legal
conclusion, must be pleaded. This was not done. If it
is not pleaded,
the other party cannot prepare to meet it and can be taken by
surprise at the trial. That should have been the
end of the matter.
The appellant should have been granted judgment as prayed.
[9]
In case I am wrong, I will evaluate the evidence
led in support of this version by the first respondent. I shall do so
assuming
for the purpose of the exercise that the evidence of the
first respondent on this issue should have been allowed, even though
I
have found to the contrary. In those circumstances, can it be said
that the respondents discharged the onus on them?
[10]
It was not disputed that Mrs Thomas was deceased
by the time summons was served. She was the manager of the Kokstad
branch of the
appellant during the period in question. The first
respondent said he had withdrawn some of the duplicate payments from
the account
into which it was transferred and taken it in cash to
her. Because she could not trace the payments as having come from the
appellant,
she suggested that she keep it in the safe of the bank in
case a claim was made. She then entered the amounts given to her by
the
first respondent into a diary and put the money into a safe.
Because the first respondent did not regard it as his money, he did
not ask for a receipt. Some of the duplicate payments could not be
withdrawn at the ATM machine so not all of the amounts were
given to
Mrs Thomas.
[11]
When he was asked whether, after the action was
instituted, he had attempted to obtain the diary, he said that it was
two years
after the event. In other words, he made no such attempt.
On being pressed, he said that he had gone to the bank and spoken to
a ‘guy who was there at the office, but there was nothing
there’. The ‘guy’ in question was not identified.
When asked why this version had not been raised in the plea, he said
that his legal advisers told him he could tell his story at
court. He
then claimed to have raised this version in response to the
appellant’s request for further particulars. This document
remains shrouded in mystery. It never formed part of the pleadings
and the first respondent was unable to say what was raised.
It
appears that a document was shown to the learned trial judge but it
was not introduced as a pleading or an exhibit so presumably
did not
bear out this version. In any event, the plea was still not amended.
[12]
When asked why this version had not been put to
the appellant’s witnesses, as he had been warned to do by the
learned trial
judge, the first respondent initially claimed to have
done so by asking them whether they had contact with their managers.
When
it was pointed out that this did not convey anything of the
sort, he conceded the point. He then said that, contrary to the clear
explanation of the trial judge that his version should be put to the
appellant’s witnesses, he thought he could simply tell
his
version to court. This explanation can safely be rejected as false
and this should have been done by the learned trial judge.
[13]
The learned trial judge instead held that the
evidence given by the first respondent was credible and not countered
by the appellant.
He did not deal with the question of the
onus
having shifted to the respondents or their failure to plead this
defence. Still less did he recognise that the appellant had not
in
any way been placed in a position where it could counter the new
version. He held that the appellant had not been impoverished
by the
transfers from its account or the respondents enriched because the
respondents had repaid the amounts in question. In my
respectful
view, in this the learned judge erred. The appellant did fail to
counter this version. It could hardly do so when it
had not been
alerted to the version in the pleadings or even when its witnesses
were testifying.
[14]
There are several inherent improbabilities in the
version of the first respondent which were not taken into account by
the learned
trial judge. If, in fact, Mrs Thomas had taken cash from
the first respondent, no prudent bank manager would have done so
without
issuing a receipt. If she had not done so and had kept a list
of the amounts in a diary, it would have been an official diary and
have been kept in a safe place and not destroyed. If the unnamed bank
official had been approached by the first respondent after
action was
instituted, he would have investigated the safe and all documents
which might bear on the matter. Any cash kept by a
bank against a
claim being made would have to be accounted for. A bank manager
confronted with the situation described by the first
respondent would
have taken copies of the bank statements (of other banks) into which
the transfers were made and have investigated.
All of the duplicates
had identical legends in the Capitec account. One payment was
described as ‘Electronic Deposit in’
and the other as
‘RTC – ONLINE CREDIT’ and all were duplicated
within a day of each other.
[15]
In addition, a perusal of the cash withdrawals
from the account into which the monies were transferred showed that
few, if any,
withdrawals were made in the amounts of the duplicate
transfers. The withdrawals from the accounts were of lesser amounts.
The
first respondent’s version of the same amounts being
withdrawn is not borne out by the bank statements. It is further
inconceivable
that, on receipt of the summons, the respondents would
not have immediately raised this defence had the version testified to
taken
place.
[16]
Apart from these inherent improbabilities, the
fact that this version was never raised until the first respondent
stepped into the
witness box, allied to the bank employee Mrs Thomas
being deceased, raises more than a question mark as to the veracity
of the
account. It gives rise to the inference that it was a recent
fabrication. The strategy of raising it only at that stage meant that
the appellant was not given any opportunity to investigate it, search
for documents or cash in the safe or counter the version.
As I have
mentioned, his version as to why it was not pleaded or put to the
appellant’s witnesses was inherently improbable
and should also
have been rejected.
[17]
All in all, the learned trial judge erred in
accepting this version even if it was appropriate to allow it into
evidence. As such,
it should have been held that the respondents did
not discharge the
onus
on them of proving non-enrichment by way of having paid back the
money received by them without cause. On both bases, therefore,
the
defence of the respondents should have failed.
[18]
The learned trial judge ought accordingly to have
entered judgment as prayed in favour of the appellant. His judgment
was handed
down on 25 January 2018 so interest must be made
to run from that date. As to the question of costs, no case was made
out for a punitive costs order. The appellant initially alleged fraud
on the part of the respondents. No such case was made out.
The order
of the Supreme Court of Appeal granting leave to appeal made the
costs of the dismissal of the application for leave
to appeal in the
court
a quo
and the
costs of the application for leave to appeal in the Supreme Court of
Appeal costs in the appeal. As such, no separate costs
order is
necessary in respect of those costs.
[19]
In the result:
a)
The appeal is allowed with costs, such to be paid jointly and
severally by the respondents,
the one paying the other to be
absolved.
b)
The order of the court a quo is set aside and substituted with the
following order:
‘
Judgment
is entered for the plaintiff as follows:
1
Against the first respondent for:
(a)
Payment of the amount of R541 940.00;
(b)
Interest on that sum at the rate of 10.25% per annum from
25 January 2018 to date of payment.
2
Against the second respondent for:
(a)
Payment of the amount of R320 000.00;
(b)
Interest on that sum at the rate of 10.25% per annum from
25 January 2018 to date of payment.
3
The defendants are directed to pay the costs of suit jointly and
severally, the one
paying the other to be absolved.’
___
Gorven J
Seegobin J
Bezuidenhout J
Dates of Hearing:
27 March 2019
Date
of Judgment:
29 March 2019
Appearances
For
the Appellant:
P
Bramdhew
Instructed by Glover Incorporated.
Locally represented by Tatham Wilkes Inc.
For the Respondents:
In person
[1]
Kudu Granite Operations (Pty) Ltd v Caterna Ltd
2003 (5) SA
193
(SCA) at para 17.
[2]
African Diamond Exporters (Pty) Ltd v Barclays Bank International
Ltd
1978 (3) SA 699
(A) at 713H;
ABSA Bank Ltd v Standard
Bank of SA Ltd
[1997] ZASCA 71
;
1998 (1) SA 242
(SCA) at 252F-G.