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[2016] ZAFSHC 69
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Standard Bank of South Africa Ltd v Mokoena (A59/2015) [2016] ZAFSHC 69 (12 May 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal
number: A59/2015
In the
matter between:
THE
STANDARD BANK OF SOUTH AFRICA LTD
Appellant
and
NTAU
LUCAS MOKOENA
Respondent
CORAM:
VAN ZYL, J, DAFFUE, J et REINDERS, J
HEARD
ON:
22 FEBRUARY 2016
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
12 MAY 2016
I.
INTRODUCTION
[1]
This appeal is directed against a f
inding
by a single judge of this division dismissing with costs a claim of a
banker against its customer in respect of an overdrawn
current
account.
II.
THE
PARTIES
[2]
Appellant is Standard Bank of South Africa Ltd, the unsuccessful
plaintiff in the court
a
quo.
[3]
Respondent and defendant in the court
a
quo
is Mr Ntau Lucas Mokoena.
III.
THE
PLEADINGS
[4]
Appellant claimed payment in the amount of R571 590.20 plus
interest and costs from respondent, alleging that as on 25
July 2011
respondent was indebted to appellant in the aforesaid amount in
respect of the overdrawn balance of a current account
held by
respondent with appellant’s Brandwag branch in Bloemfontein. It
should be mentioned at this stage already that respondent
did not
have overdraft facilities with appellant, but that the current
account became overdrawn as a consequence of a series of
transactions
pleaded in the particulars of claim and confirmed in
viva
voce
and
documentary evidence.
[5]
Respondent pleaded in respect of the series of transactions relied on
in the particulars of claim that his account became overdrawn
as a
result of the
“
intentional
and unauthorised transfer of funds by plaintiff’s employees
”
from
his accounts and the reversal of the transfer of R693 526.93
without his consent. It was specifically pleaded that
a
transaction concluded on 1 March 2011 at the Loch Logan branch of
plaintiff (apparently the transfer of R690 000.00 to his
current
account) was done in his absence, without his approval and to his
detriment. Respondent therefore denied that he
was obliged to
pay the amount claimed by plaintiff.
IV.
JUDGMENT
OF THE COURT
A
QUO
[6]
The court
a
quo
appreciated that it was confronted with two conflicting and mutually
destructive versions,
i.e
.
the version of appellant’s witnesses on the one hand and that
of respondent on the other.
[7] I
shall deal with the court
a
quo’s
reasons when the judgment is evaluated
infra,
but
wish to mention at this stage that the court
a
quo:
7.1
concluded
in paragraph [69] of the judgment that appellant bore the onus to
prove its case by showing that the evidence of its employees
was true
and that of the respondent false without at any stage considering the
onus of proof pertaining to allegations of payment
made by a party;
7.2.
found in paragraph [73] of the judgment that both witnesses who
testified on behalf of appellant, i.e. Mrs De Villiers
and Mrs
Schoeman
“…
tried
to cover for each other”
,
“…
there
were so many unanswered questions which were not explained”, “…
there is a litany of breaches committed
by bank employees which
ultimately compromised the bank”
and
they (Mrs De Villiers and Mrs Schoeman)
“
were
not honest witnesses and the evidence showed that;”
7.3
eventually went so far to state at the end of paragraph [73]
that Mrs Schoeman was clearly misleading the court
in that it was
apparent from her documentation, contrary to her
viva
voce
evidence, that she and respondent had a meeting prior to 16 February
2011.
V.
THE
GROUNDS OF APPEAL
[8]
The appellant’s grounds of appeal can be summarised as
follows. The court
a
quo
erred in rejecting the corroborated evidence of the appellant’s
witnesses and in finding that these witnesses were not credible
and
attempted to cover for one another. Furthermore it also erred
in accepting the uncorroborated and improbable version
of respondent,
finding by implication that he was a credible witness especially
insofar as his version implied gross negligence,
fraud and even
theft, but notwithstanding this he failed to take action in any forum
against Mrs Schoeman in particular whom he
accused of theft.
VI.
MATERIAL
UNDISPUTED FACTS
[9] In
order to fully comprehend my evaluation of the court
a
quo’s
judgment, it is apposite to set out the following factual background.
9.1
At
all relevant times during the end of 2010 and beginning of February
2011 respondent was a customer of appellant, he being a customer
for
several years. At the relevant stage he held an achiever plus
current account at appellant’s Brandwag branch in
Bloemfontein
as well as a 32 days’ notice deposit account (“the 32
days’ account”). He did not have
overdraft
facilities on his current account.
9.2
On
15 February 2011 at 10:51 Mrs Amanda De Villiers, a sales
consultant employed at the time at the Southern Centre branch
of
appellant wrote an email to Mrs Joanine Schoeman, a financial planner
at the Loch Logan branch responsible for financial planning
of
appellant’s customers and I quote :
“
Subject:
NEW LEAD REF 663993.
Hi
Joanine,
Ek het met Mnr Mokoena
gepraat oor die R700-000 + wat in sy 32 dae belegging lê. Ek
het vir hom vertel van julle MAE
produk en hy stel baie belang.
Sal jy
hom asb dringend bel. Hy is nogal ‘n glibberige ou.
Ek sukkel al maande om vir sy werkers Mzansi’s
oop te maak.
Ek het nou sy adres en ek sal hom daar vastrek!! Hy ken my nog
net nie! REF663993
Sy details is: N
Lucas Mokoena
ID
[.........]
TELL NO: [.........]
Hoop
jy kry hom gehaak!!!!
Groete
Amanda
Southern
Centre.”
9.3
A series of documents relating to the
purchase of a Liberty Life policy also referred to as a
multi
access investment plan or multi access endowment or MAE (herein later
referred to as “the Liberty Life policy”) in
the amount
of R600 000 forms part of the documentary evidence presented to
the court
a
quo
.
These documents are dated 15 February 2011, 16 February 2011 and 28
February 2011 respectively. Initially the amount
to be invested
was indicated as R690 000, but eventually a Liberty Life policy
was purchased for the amount of R600 000
only. The
commission to which Mrs Schoeman as the financial planner would be
entitled also changed from R20 700 to R20 520.
The
different dates were considered by the court
a
quo
and
my evaluation of conclusions and the evidence will follow
infra
.
9.4
On
28 February 2011 respondent visited the Loch Logan branch of
appellant unannounced and without an appointment. He signed
documents pertaining to the purchase of the Liberty Life policy at
the request of Mrs Schoeman. The details of his visit
that day
and the events leading to that visit from 15 February to 28 February
2011 are in dispute and will be dealt with in the
evaluation of the
evidence as will be the case pertaining to all other aspects in
dispute.
9.5
On
1 March 2011 and prior to two transfers on that date of R690 000
and R693 526.93 respectively, the balance on respondent’s
current account was R69 187.62. The transfers caused the
balance to increase to R1, 452 714.55.
Ex
facie
the
bank statement the R690 000 transfer is described as a
“
transfer
from 103 early repayment Loch Logan 307”
.
The transfer of R693 526,93 is described as a
“
transfer
from [.........] Preller Squa 807”
.
On the same day, that is on 1 March 2011, the amount of R600 000
was transferred from respondent’s current account
and this is
described as
“
transfer
to 103 Liberty Life, Loch Logan 317
”
.
On 2 March 2011 the entry in respect of the R693 526,93 transfer
to the current account was reversed by appellant.
9.6
It
is also apparent from the bank statement of respondent’s 32
days’ account that on 1 March 2011 the R690 000
was
transferred from that account with the description
“
transfer
to early repayment Loch Logan 306”
,
leaving a balance of just R3526.93.
9.7
It
is also common cause that on 1 March 2011 a further transfer of
R693 526,93 was effected from respondent’s 32 days’
account to his current account as indicated above, although the bank
statement of this account does not reflect the transfer.
The 32
days’ account is a savings account and it could not and should
not have been allowed to become overdrawn. As
mentioned above
and as reflected in the bank statement of the current account the
transaction pertaining to the transfer of R693 526.93
was
reversed by appellant the next day.
9.8
Mrs
Schoeman arranged the transfer of the R690 000 from respondent’s
32 days’ account to his current account without
respondent
signing the prescribed transfer form, whilst respondent requested an
early repayment of the amount of R693 526.93
from his 32 days’
account to his current account.
Ex
facie
the
transfer document the following reason was advanced by him:
“
Open
an investment with Stanlib and papers have been signed for the
payment as they offer higher %.”
It is
apparent from the document that the bank official who assisted
respondent with the transaction declared that no penalty would
be
charged for early repayment of the investment and I refer to the
following inscription:
“
Investing
with us at Stanlib.”
At
the bottom of the document the following written consent for early
repayment without penalties, apparently by a senior official,
is
found: “
Auth
since investing with us at Stanlib.”
9.9
It
is common cause that notwithstanding respondent’s explanation
why he required an early payment from his 32 days’
account,
respondent arranged for the transfer of the amount of R693 526.93
from his current account to an account held by
him with Absa Bank.
9.10
The
Liberty Life policy pertaining to the investment of R600 000
commenced on 1 March 2011.
9.11
On
4 March 2011 a letter was written and signed by Mrs Schoeman
indicating that respondent’s Liberty Life policy should be
cancelled, the funds to be paid into his current account with
appellant. She indicated that she had been instructed
accordingly
by respondent the previous day. On 7 March 2011
respondent signed a letter which reads as follows”
“
I
would appreciate it if liberty life will
cancel
my first request
for an amount of R600 000.00 to be paid to my account.
Please
continue with investment as it is on your system …”
(emphasis
added). Respondent’s
viva
voce
evidence
in this regard will be discussed
infra.
9.12
On
11 March 2011 respondent caused a letter to be written by his
attorneys, Messrs Steyn Meyer, to the manager of appellant’s
Brandwag branch. I quote from the second paragraph of this
letter:
“
Our
instructions are that client discovered an overdraft/reversal of an
amount of R693 526.93 (six hundred and ninety three
thousand
five hundred and twenty six rand and ninety three cents) made on 2
March 2011 in his above-mentioned
account a fact which surprised
him.”
In the
heading of the letter reference is made to the client’s cheque
account number 240303857 which clearly is his current
account.
There is no reference in this letter to the transfer of R600 000
to Liberty Life or more importantly, the fact
that R600 000 was
given in cash to an employee in the middle of February 2011 which
cash deposit did not reflect in the client’s
current account.
There is also no reference to the transfer of R600 000 from the
current account to Liberty Life which
would have been directly
contrary to respondent’s instructions, bearing in mind his
viva
voce
evidence.
9.13
On
10 May 2011 appellant’s Mr James, a fraud analyst, responded to
Steyn Meyer’s letter after having investigated the
matter.
It was
inter
alia
pointed out to the respondent that
“
he
had full knowledge that he had only sufficient funds to either
conclude the transfer to Liberty for R600 000 or the transfer
to
Absa for R693 526,93”.
9.14
No
criminal charges were ever laid by respondent against Mrs Schoeman or
any other employee of appellant.
VII.
CERTAIN
LEGAL PRINCIPLES
CREDIBILITY
FINDINGS OF THE COURT
A
QUO
[10] A
court of appeal assumes as a starting point that the trial court’s
findings of fact were correct and these findings
are normally
accepted, unless there is some indication that a mistake has been
made. See: Schmidt and Rademeyer,
Law
of Evidence
loose leaf edition at 3-40, relying
inter
alia
on
R
v Dhlumayo
1948 (2) 677 (A) 696 at 705 and
Munster
Estates (Pty) Ltd v Killarney Hills (Pty) Ltd
1979 (1) SA 621
(A) at 623 – 624. It is also confirmed
that a trial court enjoys a particular advantage when the demeanour
of witnesses
is of importance. The trial court was, unlike the
court of appeal, absorbed in the atmosphere of the trial from start
to
finish.
[11]
Notwithstanding the above comments it cannot be ignored that a court
of appeal may often be in a better position to draw inferences,
particularly in regard to secondary facts, bearing in mind the
benefit of an overall conspectus of the full record. See:
Louwrens
v Oldwage
2006 (2) SA 161
(SCA) para 14 and
Union
Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd and Another
2002 (4) SA 408
SCA at para 24. If it emerges from the reasons
of the trial court that it erred in respect of its findings on the
facts,
the court of appeal is free to reject the findings in total or
in part, including those findings based on credibility and to reach
its own conclusions. See:
Santam
Beperk v Biddulph
2004 (5) SA 586
SCA where Zulman JA stated the following in para 5:
“
Whilst
a Court of appeal is generally reluctant to disturb findings which
depend on credibility it is trite that it will do so where
such
findings are plainly wrong (
R
v Dhlumayo and Another
1948 (2) SA 677
(A) at 706). This is especially so where the reasons
given for the finding are seriously flawed. Overemphasis of the
advantages
which a trial Court enjoys is to be avoided, lest an
appellant's right of appeal 'becomes illusory' (
Protea
Assurance Co Ltd v Casey
1970 (2) SA 643
(A) at 648D - E and
Munster
Estates (Pty) Ltd v Killarney Hills (Pty) Ltd
1979 (1) SA 621
(A) at 623H - 624A). It is equally true that findings
of credibility cannot be judged in isolation, but require to be
considered
in the light of proven facts and the probabilities of the
matter under consideration.”
I
shall in my evaluation of the court
a
quo’s
judgment
deal with the reasons advanced by it in order to come to a conclusion
as to whether its credibility findings could be supported.
ONUS
OF PROOF
[12]
The court
a
quo
referred
to
Mabena
and Another v Minister of Law and Order
1988 (2) SA at 654 for the conclusion that in the event of two
conflicting versions, the onus is on the plaintiff to prove on a
preponderance of probabilities that his version is the truth, i.e.
“
the
onus is discharged if the plaintiff can show by credible evidence
that his version is more probable and acceptable”
.
The court
a
quo
also referred to
SFW
Group Ltd and Another v Martell et Cie and Others
2003 (1) SA 11
SCA and quoted the first part of the conclusion
arrived at by Nienaber JA as to how two irreconcilable versions
should be adjudicated.
In order to give justice to the
dictum
of Nienaber JA I quote the relevant passage in full:
“
[5]
On the central issue, as to what the parties actually
decided, there are two irreconcilable versions. So, too,
on a number
of peripheral areas of dispute which may have a bearing on the
probabilities. The technique generally employed
by courts in
resolving factual disputes of this nature may conveniently be
summarised as follows. To come to a conclusion on the
disputed issues
a court must make findings on
(a)
the credibility of the various factual witnesses;
(b)
their reliability; and
(c)
the probabilities. As to
(a)
,
the court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That in
turn will depend on a variety of
subsidiary
factors, not necessarily in order of importance, such as (i) the
witness' candour and demeanour in the witness-box, (ii)
his bias,
latent and blatant, (iii) internal contradictions in his evidence,
(iv) external contradictions with what was pleaded
or put on his
behalf, or with established fact or with his own extracurial
statements or actions, (v) the probability or improbability
of
particular aspects of his version, (vi) the calibre and cogency of
his performance compared to that of other witnesses testifying
about
the same incident or events. As to
(b)
,
a witness' reliability will depend, apart from the factors mentioned
under
(a)
(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to
(c)
,
this necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the disputed
issues.
In the light of its assessment of
(a)
,
(b)
and
(c)
the court will then, as a final step, determine whether the party
burdened with the
onus
of proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court's credibility
findings
compel it in one direction and its evaluation of the general
probabilities in another. The more convincing the former,
the less
convincing will be the latter. But when all factors are equipoised
probabilities prevail.”
PROOF
OF PAYMENT OF R600 000
[13]
The court
a
quo
never
indicated that respondent attracted the onus to prove that he had
paid over an amount of R600 000 in cash to Mrs Schoeman.
It is accepted that a plaintiff or applicant has to prove all the
requirements for his or her remedy and only in exceptional
circumstances
is a burden
placed
on a defendant or respondent to prove an issue. Respondent has
put in issue the cash payment of R600 000 to Mrs
Schoeman; an
issue that does not form part of the requirements to be proved by
appellant for its remedy. Respondent asserted
that he had
effected payment of R600 000 and based on the oft-quoted
judgment,
Pillay
v Krishna
1946 (AD) 946 at 951 he should have convinced the court on a balance
of probabilities that payment had in fact been made by him
to Mrs
Schoeman. Refer also to the general discussion by Schmidt and
Rademeyer,
loc
cit
,
at 2-10. I take into consideration that respondent did not file
a counterclaim, alleging that appellant was vicariously
liable to him
for the delict committed by its employee, Mrs Schoeman.
BANKER/CUSTOMER
RELATIONSHIP
[14]
It is trite that the relationship between a banker and customer is
regarded as a contractual one. The basic although
not sole
relationship between a banker and customer in respect of a current
account is one of debtor and creditor. If the
current account
of the customer reflects a credit balance he/she is the creditor and
the bank the debtor. The customer is
the debtor and the bank
the creditor if the current account is overdrawn. The roles of
the bank and the customer are then
reversed insofar as the bank
becomes the creditor and the customer the debtor. In either of
these two situations the bank
still acts as agent when carrying out
the instructions of its customers to make payment against their
accounts. See:
Standard
Bank of SA Ltd v Oneanate Investments (Pty) Ltd
1995 (4) SA 510C
at 530G – 532C and
Absa
Bank Bpk v Janse van Rensburg
2002 (3) SA 701
SCA at para 16.
[15]
In deciding whether the bank could reverse an erroneous entry the
court shall examine all relevant facts. See
Oneanate
Investments
loc
cit
at
530B.
[16]
Regarding unauthorised signatures it is accepted that a bank would be
acting in breach of the terms of its mandate if it would
honour a
cheque that does not bear an authorised signature and consequently
debit the customer’s account with the amount
of the cheque.
However such action by the bank does not necessarily mean that
payment of the cheque is invalidated.
In
Di
Giulio v First National Bank of South Africa Ltd
2002 (6) SA 281
(C) Van Zyl, J with reference to South African and
English authorities dealt with the issue and concluded as follows at
para [25]:
“
In
any event the bank may, at its own risk, honour ostensibly
unauthorised cheques in the expectation that their payment will be
approved or rectified. This may, in essence, constitute a
breach of the mandate, but it will not
per
se
invalidate the payment of the cheques.”
In
submission the same approach should be followed in respect of a
transfer of money by the bank from a customer’s account.
VIII.
EVALUATION
OF THE COURT
A
QUO
JUDGMENT IN LIGHT OF THE AUTHORITIES AND SUBMISSIONS BY COUNSEL
[17]
The court
a
quo
referred to the
SFW
judgment
loc
cit
and
concluded as follows:
“
In
the case at hand, clearly the probabilities of the evidence of
plaintiffs witnesses was non-existent. Ms Schoeman makes
a
summary of what transpired in her meeting with the defendant on the
16/02/11 but alleges that she only saw the defendant on the
28/02/11. Clearly, she was misleading the court. On her
own summary on the 16/02/11, it was clear that there was a
meeting
before the 16/02/11.”
It
is not certain what was meant by the
dictum
that
the probabilities were “non-existent.” The court
a
quo
came
to a wrong conclusion as will be shown in more detail
infra
.
Nienaber JA concluded as follows in para [34] of
SFW
loc
cit
:
“
In
assessing the probabilities, phase by phase as events unfolded, as
well as comprehensively and in retrospect, the conclusion
seems to me
to be inescapable that of the two versions before court as to what
the parties agreed to, SFW’s is the more probable.”
[18]
In my view the court
a
quo
erred in not considering the probabilities phase by phase as events
unfolded, or at all. If it did that, it would have found
that
Mrs De Villiers, a sales consultant at the Southern Centre branch of
appellant in Bloemfontein had a business relationship
with respondent
and bearing in mind the huge amounts available in respondent’s
bank accounts from time to time, she regarded
it in his interest to
arrange with Mrs Schoeman, a financial planner at appellant’s
Loch Logan branch, to consult with respondent
in order to possibly
persuade him to make use of a much better investment opportunity than
the 32 days’ account provided
by appellant. The
court
a
quo
should have found that respondent was not known to Mrs Schoeman
during 2010 as he testified. She obtained her lead pertaining
to the new business opportunity on 15 February 2011 and Mrs De
Villiers’ email quoted in full
supra
is
cogent corroboration for the version of both these two ladies.
It is apparent that respondent was a difficult customer
to get hold
of, probably because of his several business undertakings and the
contents of the email must be seen in that light.
If Mrs
Schoeman had contact with respondent in respect of investment
opportunities as long ago as November 2010 as he alleged,
she would
have had all his details and it would be totally unnecessary for Mrs
De Villiers to write the email of 15 February 2011.
[19]
Mrs Schoeman testified that she was on sick leave at the time that
respondent suggested that he had contact with her pertaining
to
possible future investments. This aspect together with the
email referred to and the convincing evidence of both witnesses
testifying on behalf of appellant are far more probable than
respondent’s version pertaining to the events leading up to
15
February 2011. This can be regarded as the first phase of the
material events between the parties.
[20]
The second phase of events is the period covered by the evidence
pertaining to the drafting of the documentation in order to
purchase
a Liberty Life policy, the contact between respondent and Mrs
Schoeman and the alleged handing over of cash in the amount
of
R600 000 on 15 January 2011 until the meeting of 28 February
2011 when respondent arrived unannounced at the Loch Logan
branch of
appellant.
[21]
If respondent handed R600 000 cash to Mrs Schoeman on 15
February 2011 as alleged, it is highly improbable that she would
fill
out the amount of R690 000 as the investment amount on the
documents and also calculate her commission on this amount
instead of
R600 000. The explanation of Mrs Schoeman is not
improbable and in my view quite logical. Respondent
did not
honour the first appointment made for him, but he clearly showed an
interest to purchase a Liberty Life Policy with the
excess funds in
his 32 days’ account. This caused Mrs De Villiers to
provide a lead to Mrs Schoeman as mentioned and
Mrs Schoeman to
establish precisely what was available for investment by accessing
respondent’s 32 days’ account with
the information
provided to her. She prepared draft documents based on an
investment of a rounded figure of R690 000
(there was an amount
just in excess of R693 000 available on the particular
account).
[22]
The court
a
quo
should
have found that the documents pertaining to the purchase of the
Liberty Life policy were computer-generated and pre-prepared
with the
information that Mrs Schoeman had, bearing in mind the lead from Mrs
De Villiers and the information that could be obtained
from the
appellant’s systems. It therefore makes sense that some
of the computer-generated documents were dated 15
February 2011, the
day Mrs Schoeman received the lead per email. Her summary of
the events is dated 16 February 2011.
When this was prepared
the commission was calculated on the amount of R690 000 to be
invested and this was later changed in
handwriting to the lower
figure. Unlike some other documents bearing the date changes
the date was not changed. The
same summary is reproduced on
another document, the product replacement questionnaire and it is
evident that this document forms
part of a document referred to as
the Customer Record of Advice. All five pages of the document
bear the date 15 February
2011 at the bottom of each page. It
is apparent from the other documentation that some of the dates have
been changed to
28 February 2011 and in several instances the date 28
February 2011 was hand written with pen, this being the date on which
respondent
actually signed the documents according to Mrs Schoeman
once he had decided to purchase a Liberty Life policy in the amount
of
R600 000 only and not R690 000 as originally anticipated
by Mrs Schoeman when she pre-prepared the computer-generated
documentation.
[23]
Mrs Schoeman’s version as to the events on 28 February 2011 is
also crystal clear. She was busy with a client when
respondent
arrived without an appointment. By then he had failed to honour
at least two previous appointments. She
regarded him as an
important client and one she had difficulty to get into contact with,
bearing in mind the previous appointments
not honoured by him and
also Mrs De Villiers’ complaint. The customer that she
was dealing with at the time was prepared
to wait a while for her to
finish her business with respondent. Mrs Schoeman’s
version as to the events and the consequent
transfers of money the
next day is clear, concise and logical, and although part of the next
phase to be discussed, corroborates
her version fully. On the
other hand, respondent’s version that he brought cash to Mrs
Schoeman on 15 February 2011
in the amount of R600 000 is highly
improbable. It is highly improbable that Mrs Schoeman would not
have insisted that
the money be deposited with one of the cashiers
for an official receipt to be issued. It is unbelievable that
the cash would
be handed over to her without it being counted first
and without her giving him any proof of the payment. No
reliance could
be placed on any of the Liberty Life policy documents
at that stage as these documents would have indicated an investment
amount
of R690 000 and not R600 000. It is
unacceptable that respondent and Mrs Schoeman would have agreed that
she would
be the one to take the cash to Liberty Life’s
offices, where ever that might have been at the time, and to make a
deposit
on behalf of respondent and in doing so, avoid paying a fee
on the cash deposit which would have been the case if the cash was
deposited into respondent’s account with appellant bank.
Surely if Mrs Schoeman was really entrusted with such a huge
amount of cash, one would have expected respondent to insist on proof
of payment and some assurance that the amount would eventually
arrive
safely at Liberty Life’s offices. Although part of a
later phase in the events, it is important to note that
the letter of
respondent’s attorneys, Steyn Meyer, did not refer at all to
the missing cash payment. In fact it would
have been clear to
respondent that an amount of R600 000 was transferred from his
current account to Liberty Life on 1 March
2011, but he did not query
this transfer at all. It should have been clear to him at that
stage, based on his version, that
two payments of R600 000 each
had been made to Liberty Life whilst he only applied for one policy
of R600 000.
The failure to query this serves as
corroboration of Mrs Schoeman’s version. The
probabilities are overwhelmingly in
favour of appellant in respect of
this phase of the events.
[24]
I regard the events of 1 and 2 March 2011 as the third phase of the
events. On 1 March three crucial transfers took place.
R690 000
was transferred from the 32 days’ account to respondent’s
current account which provided sufficient funds
for a transfer to be
made of R600 000 from the current account to Liberty Life which
transfer was then effected. Respondent
did not sign any
transfer documents to authorise appellant bank to effect the
transfers, but Mrs Schoeman testified that the signed
documents in
terms whereof respondent applied for the policy entitled her to
arrange these two transfers. In any event respondent
obtained
the benefit of these two transactions in that the Liberty Life policy
applied for was issued to him. On the same
day another transfer
was made from respondent’s 32 days’ account in the amount
of R693 526,93. This amount
was in actual fact the balance
on that account prior to the transfer of the R690 000.
Obviously, that account not being
a current account with overdraft
facilities, two such transfers could not have been authorised and/or
effected. Appellant’s
systems failed in this regard.
The two transfers were made at different branches and although it is
not clear what the time
lapse between the two transfers was, it
appears quite extraordinary that, bearing in mind the electronic era
in which we live,
this could have happened. No evidence was
tendered to explain this, but this does not take the matter any
further.
As mentioned Mrs Schoeman arranged the transfer of
R690 000 and respondent the transfer of R693 526.93.
[25]
Contrary to his express undertaking in the transfer form signed by
him, respondent did not utilise these funds to invest with
Stanlib.
His version in this regard is false and his evidence that an
employee of appellant bank advised him to advance such
a false
version is far-fetched and improbable to the extreme. The
logical conclusion for relying on this false version is
not difficult
to fathom. If someone at the bank would be making enquiries,
he/she would probably be able to ascertain that
respondent did in
fact apply for a Liberty Life policy. Instead of using the
funds to invest with Stanlib, respondent caused
an amount of
R693 526,93 to be transferred to Absa bank where he also held an
account.
Ex
facie
the
record this transfer was ostensibly done for “building
purpose”. This happened on 2 March 2011 and that same
day
appellant established the irregularities and caused a reversal of the
transfer of R693 526,93 from the 32 days’
account to the
respondent’s current account.
[26]
The transfer of funds in the amount of R690 000 from
respondent’s 32 days’ account to the current account
was
not specifically authorised in writing by respondent insofar as the
standard transfer form used by the bank does not contain
respondent’s
signature. Mrs Schoeman explained this in her evidence and
indicated that she believed that she was entitled
to arrange for such
transfer bearing in mind respondent’s instructions to purchase
the Liberty Life policy and his signature
on all relevant documents
to make the investment. Fact of the matter is that the transfer
was effected and R600 000
of the amount transferred was used to
purchase the Liberty Life policy whilst the remainder of the funds
remained in respondent’s
current account. He therefore
did not suffer any prejudice as a result of these transactions.
It is common cause that
the policy was issued to respondent and that
he received the benefit of the R600 000 investment. The
mere fact that
he later – in May 2011 -called up the policy
does not take the matter any further.
[27]
The fourth phase of events is the period after 2 March 2011.
Mrs Schoeman testified that respondent contacted her a few
days after
the investment had been made with instructions to call up the policy
and that she then sent a letter in that regard
to Liberty Life.
I referred to the letter of 4 March 2011
supra.
In
that letter, Mrs Schoeman, the signatory, confirmed that she had
received verbal instructions from respondent the previous day
in that
regard. Respondent denied this version and testified that he in
fact requested Liberty Life not to call up the policy
at that stage.
I also dealt with the letter of 7 March 2011. In his testimony
respondent was cross-examined on the
contents of this letter and in
particular the allegation that he wanted to cancel his first request
for payment of the amount of
R600 000. He blamed the
employee of Liberty Life for the “incorrect” wording and
insisted that he had never
given the first instruction to cancel the
policy. As was the case with the appellant bank employee who on
his version came
across a reason why he should not pay a penalty for
early repayment, it was just too easy for respondent to unfairly
blame an unidentified
employee. This issue forms part of the final
phase of the events to be adjudicated and must be read with the
letter of Steyn Meyer.
The court
a
quo
should have found that respondent actually instructed Mrs Schoeman to
try and cancel the Liberty Life policy in the hope that the
R600 000
could be paid back to him in order to prevent his account from being
overdrawn. It is difficult to understand
respondent’s
thought processes at the time, but it is probable that he decided
afterwards not to call up the policy and that
he would rather face
any action to be instituted by appellant based on the overdrawn
current account. We also know that about
three months later
respondent did in fact call up the investment with Liberty Life.
[28]
To sum up, I have shown with reference to the documentary and
viva
voce
evidence
in the four phases or time frames that the court
a
quo
did
not have any reason to make negative findings against appellant.
In fact, it erred in making credibility findings against
appellant’s
witnesses and Mrs Schoeman in particular. If the evidence in
its totality is considered the appellant has
made out a proper case;
not only do the probabilities favour appellant, but respondent’s
version is untenable, far-fetched
and clearly false. This court
did not observe the various witnesses in the witness box, but it is
apparent from the documentation
and the totality of the evidence that
the court
a
quo
was unnecessary critical of appellant’s witnesses. They
gave a probable version and corroborated each other.
Mrs
Schoeman explained satisfactorily how it came about that the
documents and her summary in particular bore different dates.
It is evident that the respondent was a difficult customer to get
hold of and this can be said without any negative connotation
as many
businessmen often find it difficult to deal with their personal
matters due to time constraints and tight schedules and
routines.
The email of 15 February 2011 is damning for respondent’s
version that he and Mrs Schoeman knew each other
from the previous
year and had already discussed investments at that time. The
email is clearly nothing else but a lead given
by Mrs De Villiers to
Mrs Schoeman and it would be totally unnecessary if Mrs Schoeman had
all contact details and information
of respondent at that stage.
If respondent had R600 000 in cash readily available for
investment that day, it would
be unnecessary to refer Mrs Schoeman to
respondent’s 32 days’ account, unless respondent was
prepared to invest much
more than R600 000 which was not the
case.
[29]
It is correct that Mrs Schoeman was severely cross-examined and that
she found it tough to explain the different dates on the
documents
prepared by her in order to purchase the Liberty Life policy as well
as the two so-called unauthorised transfers arranged
by her. In
my view the cross-examination did nothing to blemish her
credibility. Her explanations are probable and
logical.
If an armchair approach is followed she might be criticised for not
obtaining written authorisation from respondent
on the bank’s
standard transfer forms. She did not actually effect the
transfers and whoever did that was prepared
to accept that there was
actual authority based on the signed application for the Liberty Life
policy.
[30]
Respondent’s credibility was not considered at all by the court
a
quo
.
His version is contradicted by objective evidence such as the email
of 15 February 2011 and the fact that the commencement
date of the
Liberty Life policy was only 1 March 2011 and thus after signature of
the documents on 28 February 2011 and the transfer
of R600 000
to Liberty Life on 1 March 2011. His allegation that R600 000
in cash was handed to Mrs Schoeman on
15 February 2011 is not
consistent with the filling out of the initial investment amount of
R690 000. There is no reason
why Mrs Schoeman would have
prepared documents based on an investment of R690 000 if she
only received R600 000 cash
from respondent. There is no
evidence that the cash was ever counted by Mrs Schoeman on receipt
thereof. Taking custody of
such an amount without counting,
especially by an experienced bank employee, is preposterous. The
co-incidence of respondent approaching
Mrs Schoeman with R600 000
cash on the same day when the email with the lead was sent to her,
especially bearing in mind the
difficulty the two ladies had to get
hold of respondent, is further confirmation of the improbable and
false version that respondent
put forward. Respondent’s
credibility is furthermore blemished regarding his lack of action if
his accusations pertaining
to the theft of R600 000 are
considered. In any event his attorney’s letter is
objective proof that he did not
have any objection at the time to the
transfer of R600 000 to Liberty Life. The lack of
accusations of theft and/or
fraud pertaining to the alleged handling
of the R600 000 cash by Mrs Schoeman at the time is further
confirmation that respondent
made up a false version by the time that
action was instituted.
[31]
The evidence of appellant’s witnesses is reliable if the
totality of the evidence is considered. Respondent did
have
extra funds available in his 32 days’ account for investment in
another financial instrument which could provide him
with a better
return. Mrs De Villiers gave the lead to Mrs Schoeman on 15 February
2011 where after a process was embarked upon
to eventually purchase
the Liberty Life policy as testified by Mrs Schoeman.
[32]
Finally and insofar as the probabilities or improbabilities of each
party’s version on each of the disputed issues are
to be
considered, there is in my mind no doubt that the court
a
quo
incorrectly considered unnecessary aspects such as the alleged
breaches by bank employees of bank policy and the allegation that
established bank practices where not followed. It also
mistakenly referred to a conflict of interest between bank employees
and Liberty Life which was allegedly clearly visible. There was
no such conflict. The court
a
quo
mentioned that it was not clear whether Mrs Schoeman was working or
moonlighting for Liberty Life or employed by appellant.
According to him she had influence in both appellant and Liberty
Life. This was clearly a wrong assumption to be made.
It
is evident from the uncontested evidence that Mrs Schoeman was a
financial planner at appellant bank and that the particular
Liberty
Life policy was one of the products which was offered to the
appellant bank customers in order to obtain better returns
on their
investments. It is also clear from the evidence, and the
documentary evidence in particular, that appellant bank
employees
such as Mrs Schoeman marketed various products from several service
providers such as
inter
alia
the Liberty group, inclusive of Stanlib. I am referring in this
regard to the particular disclosure form in terms of the
Financial
Advisory and Intermediary Services Act (FAIS) which forms part of the
documentation completed and signed.
[33]
The court
a
quo
should have found that there was an onus on respondent to prove that
he made the cash payment of R600 000 and that he miserably
failed to do so. The product replacement questionnaire which
also forms part of the application for the policy indicates
clearly
that the name of the existing product is the 32 days call account at
the bank and that the replacement product will be
the multi access
endowment, also referred to as the Liberty Life policy. This
questionnaire which bears respondent’s
signature is in direct
conflict with his version of a cash payment and cogently corroborates
Mrs Schoeman’s version.
[34]
The evidence is clear; appellant was entitled to reverse the transfer
in the amount of R693 526.93 made by
respondent under false
pretences and when insufficient funds were available. Whoever
reversed this transfer was apparently
satisfied with the veracity of
the transfer of R690 000 to respondent’s current account
contrary to the court
a
quo’s
criticism in this regard. Even if it could have been found that
respondent did not authorise the two transfers of R690 000
(to
his current account) and R600 000 (from his current account to
Liberty Life) respectively, respondent received the benefits
thereof
in that a policy to the value of R600 000 was issued, whilst the
remainder of the money remained in his account.
[35]
A legal issue to be addressed in the final instance is the
respondent’s claim that R600 000 was allegedly
stolen.
Even if it could be found that the money was indeed handed over to
Mrs Schoeman and that she stole it, respondent
would have to aver and
prove that appellant was vicariously liable to him. It is not
necessary to consider this issue any
further as no counterclaim based
on delict was instituted. Ultimately we are concerned with a
banker/customer relationship.
I dealt with the applicable
principles and authorities
supra
and have no doubt that the
court
a quo
erred in asking incorrect questions of fact and
the law. Appellant could not be non-suited, even in the event
of a finding
that bank procedures were not followed strictly.
The reversal of the transfer of R693 526.93 cannot be faulted
and that
being the case, respondent’s current account became
overdrawn which entitled appellant to institute action to claim the
debit
amount plus interest and costs.
[36]
The court
a
quo
should have found that appellant has made out a proper case for the
relief claimed in the particulars of claim and should have
granted
judgment in favour of appellant.
IX.
ORDERS
[37]
The following orders are made:
1.
Appellant’s
appeal is upheld with costs.
2.
The
order of the court
a
quo
is set aside and replaced with the following: “
Judgment
is granted against defendant for
1)
Payment
of the amount of R571 590.27;
2)
Interest
on the amount of R571 590.27 at the rate of 15,5% per annum from
26 July 2011 to date of final payment;
3)
Costs
of suit.”
____________
JP
DAFFUE, J
I
concur
___________
C
VAN ZYL, J
I
concur
_____________
C
REINDERS, J
On behalf of
appellant: Adv. AE Bham SC
Instructed
by:
Liezel
David, c/o Honey Attorneys
Bloemfontein
On behalf of respondent:
Adv. AH Burger SC
Instructed
by:
Mr
T Hadebe, c/o Rampai Attorneys
Bloemfontein
/PC