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2014
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[2014] ZAFSHC 247
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Standard Bank of South Africa Limited v Lucas (3813/2011) [2014] ZAFSHC 247 (4 December 2014)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 3813/2011
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
…..............................................
Plaintiff
and
MOKOENA
NTAU LUCAS
…..............................................................................................
Defendant
CORAM
:
JAJI, AJ
HEARD
ON
: 3 JUNE 2014
DELIVERED
ON
: 4 DECEMBER 2014
[1]
This is an action where the plaintiff, Standard bank of South Africa,
a bank duly registered and incorporated in accordance
with the
provisions of the
Bank Act 94 of 1990
,
as amended, sues the defendant for an amount of R571 590.27,
being the overdrawn balance of a current account.
[2]
The defendant is a certain Ntau Lucas Mokoena, an adult businessman
of 64 Schenehage Drive, Fichardt Park, Bloemfontein.
[3]
The plaintiff alleged that the defendant’s current account
was credited twice with amounts of R690 000 and
R693 526.93
respectively. The duplicated transfer to the defendant’s
current account was reversed by plaintiff on the
2
nd
of March 2011, leaving the current account overdrawn with an
overdrawn balance of R571 590.27.
[4]
The plaintiff contended that the defendant is obliged to pay the
alleged due amount of R571 590.27 with
costs.
[5]
The defendant only admitted: the parties as appearing in the papers,
the accounts it held with plaintiff, the request for early
repayment
of his 32 day notice, bank statements attached as Annexure “B”
and “C”, that its current account
was credited twice and
that the defendant caused to be transferred to an account held with
Absa bank limited an amount of R693 526.93.
[6]
All other allegations and averments were denied and the plaintiff was
put to the proof thereof. Consequently, defendant prayed
for the
plaintiff’’s claim to be dismissed with costs.
[7]
Prior to the commencement of the proceedings, the following issues
were confirmed and agreed:-
(i)
Locus standi
,
jurisdiction, identity of defendant, balance in the current account
and the transactions. The above were not in dispute.
The
following were in dispute:-
a)
The authority to transfer the amount of
R690 000.00;
b)
The cash amount of R600 000.00 given
and handed over to Joanine Schoeman, an employee of the plaintiff.
The
plaintiff alleged that the transfer was authorised and denied that
there was ever a cash amount of R600 000.00 handed over
to its
employee.
The
defendant disputed that the transfer from the 32 day account into the
current account was done with his knowledge and permission.
PLAINTIFF’S
EVIDENCE
[8]
Plaintiff called its first witness, a certain Amanda De Villiers, a
sales consultant employed by the plaintiff. She had been
working for
the plaintiff for almost fifteen years and has been in Loch Logan
branch of the plaintiff for the last two years.
[9]
She was aware of the transactions that led to the present action. The
defendant was her customer at the Southern centre branch.
She had
referred the defendant to a certain Joanine Schoeman for business.
The interest rate and type of portfolio Ms Schoeman
was offering was
better than 32 day offered by Standard bank. Ms De Villiers referred
to page 162 of the bundle of documents, being
the e-mail dated
15/02/14 addressed to Janine Schoeman at 10h51.
[10]
She alleged that she introduced the defendant to Ms Schoeman
through the mail. She sent a mail to Joanine Schoeman
whilst the defendant was sitting in front of her. She claimed not to
have any involvement with the dealings of defendant and Joanine
Schoeman. She alleged to have received a call in the beginning of
March from Joanine advising that she was struggling to get hold
of
the defendant. The witness got hold of the defendant the same day and
told him that Joanine was looking for him and that he
should contact
her urgently.
CROSS
EXAMINATION
[11]
On page 162 of the bundle, witness stated that the hand written note
(16/026) looked like Joanine’s handwriting. She
claimed to have
tried to call Joanine but not sure of the time and date. She could
not tell whether she contacted her on the day
in question.
The
new lead,which was an email tracking the defendant
was sent to Joanine the same time the defendant was sitting
infront of Amanda De Villiers (witness). She looked into
the
defendant’s profile within the bank system to get some of the
defendant’s details. She advertised the product “MAE”
which was better compared to the 32 day notice the defendant had with
Standard bank. The MAE product started with 8% interest or
more
whilst 32 day was not more than 3%. She claimed that throughout her
experience with the defendant, he was not accessible,
sometimes
she got hold of him and sometimes not. He was glibberige.
[12]
She claimed that the defendant had Mzansi Account for his employees.
This she knew because the defendant was a Standard bank
customer.
[13]
Upon being asked about the contents of her mail sent to Joanine where
she said the “Hy ken my nog net nie”, she
stated that she
did not mean to threaten the defendant. She was asked about the
meaning of “hoop kry hom gehaak.”
She insisted that this
was not a threat to defendant.
[14]
The witness could not say whether the defendant and Joanine knew each
other before. She was not aware whether Joanine
and
defendant called each other before the time of her meeting with the
defendant. She did not think of Joanine but her interest
was on the
defendant who would make better interest rate. It was put to her that
the mail (15/02/2014) suggested that the defendant
was known to both
of them as it mentioned “Ek het met Mnr. Mokoena gepraat……”
It does not say a certain
Mr. Mokoena. She was not aware if Joanine
and defendant knew each other at the time. Witness was excused.
[15]
Plaintiff called a second witness, a certain Joanine Schoeman. She
started working for Standard bank in 1991. She resigned
in 1996 and
worked for Liberty life and was re-employed by Standard bank in
2003. She was currently a financial planner working
in Standard bank
dealing with financial planning, life cover, wills, estate planning
and investment planning.
[16]
She was aware of the dispute between plaintiff and defendant. She
claimed that she got to know the defendant after the mail
received
from Amanda De Villiers. The mail is in page 162 of the
bundle of documents. She claimed not to have known
the defendant at
the time. She wrote a hand note on the mail regarding the date
and time of the appointment with the defendant
(10H00 on 16/02).
[17]
She contacted the defendant but does not remember the exact details.
She was certain that the appointment was scheduled
for 10h00.
The defendant did not pitch for the appointment on the 16/02/11. She
re-scheduled for the 18/02/11. The defendant did
not arrive for both
re-scheduled appointments on 18/02/11 and 21/02/11 respectively.
On
28/02/11 the defendant simply pitched up without an appointment. Ms
Schoeman was busy with a client at the time,a certain Mrs
Mopadi.The
defendant allegedly demanded to see her urgently. Apparently Mrs
Mopadi understood. All this time, it is alleged that
there was never
a prior dealing with the defendant. She went through the proposal
with him, went through the liberty advice fee
mandate, upfront fee
(commission) included, working on commission (including the meeting
they had). The documents were signed on
the 28/02/11 ,had contended
that she normally pre-prepare documents for client and this
explanation was given to
clarify the different
dates on the documents.
[18]
Documents were shown to the witness and explanation was given i.e.
1
st
page of liberty life application relating to the plan sold to the
defendant. In the beneficiary nomination form, an amount of
690 000.00 was scratched and altered to read 6000.00. She
submitted that the reason for the change was that the defendant
decided to change and invested R600 000.00. The defendant
needed other funds for something else and was only willing
to invest
R600-00. The defendant signed the last page of the application on the
28/02/14. Pages 163-194 of the bundle of documents
is the copy of the
application. Witness insisted that the 28/02/11 was the first date
that she saw the defendant. She confirmed
the signatures of both
herself and the defendant on the application at various pages.
At pages 182 – 184, legal disclosure
form and details of the
adviser is signed at the bottom by both witness and defendant.
[19]
In the document where the customer acknowledges that he understands
the disclosure and appointment of broker, the customer’s
permission part was signed by the defendant on the 16/02/11 even
though Ms Schoeman claimed that it was signed on the 28/02/11.
In the
initial proposal form signatures of both defendant and the witness
apperared and were dated 15/02/11. The document formed
part
of documents that the Ms Schoeman alleged to have pre-prepared.
At page 189 dealing with financial products,
an entry was made
by Ms Schoeman and both the signatures (herself and defendant)
appeared on the form, signed at the same time
(see page 190, 191,
192, 193, 194 and 195.
The
document (page 198) dated 01/03/2011 is signed by Joanine Schoeman on
behalf of the defendant and was handed to the back
office of
the plaintiff.
[20]
An amount of R690 000.00 from the 32 days notice was transferred
to cheque account. The document regarding the transfer
from 32 notice
to current account was not signed by the defendant but by Ms Schoeman
purportedly on behalf of the defendant on
the 01/03/11. In page 200
of the indexed documents, the application for transfer of money
showed defendant being debited and Liberty
life made a
beneficiary. This was a transfer from defendant’s current
account to Liberty life account at 16H39 on 01/03/11.
The signature
of the defendant does not appear in this document.
[21]
Ms Joanine Schoeman prepared a document cancelling the product
(liberty life) because it was claimed that the defendant
was not
happy with it. She claimed that defendant had phoned and advised that
his wife was not happy because of the initial fee.
The cancellation
did not proceed because defendant went to Liberty life and stopped
the cancellation.
[22]
She advised that defendant surrendered his policy and repaid an
amount of R599 051.81 which was paid to him on 14/06/14.
Ms.
Schoeman denied that the transfer of R690 000.00 was done without
defendant’s permission and insisted that she carried
defendant’s instruction. She also denied that she met the
defendant on the 28/02/11 and further denied ever been given an
amount of R600 000.00 in cash by the defendant. She claimed that
she was not allowed to carry cash, defendant would then had
to go to
a teller to deposit the money. Ms. Schoeman denied that she paid
R600 000.00 to Liberty Life because Liberty does
not even
occupy the same building with them in Loch Logan. She would not have
paid it there. She also advised that she could
not think of any
circumstances where defendant would have given money to somebody else
thinking it was her.
[23]
She summarised her evidence as per the summons. She alleged that
Amanda De Villiers gave her lead and defendant did not arrive.
She
had pre-prepared the documents, there was no policy, no cash. She saw
defendant on the 28/02/11, completed documents with him,
agreed on
R600 000.00 to be transferred from 32 day account to Liberty.
The defendant apparently gave instructions. She claimed
that on the
04/03/11 defendant phoned wanting to cancel the policy with Liberty
Life and was later advised that the defendant had
instructed
personally that the policy should not be cancelled. She has never
heard from defendant again.
CROSS-EXAMINATION
[24]
She submitted that she was representing the plaintiff when dealing
with clients. Bank practises were applicable in her dealings
with
clients. The first time that he had made contact with the
defendant over the phone to make appointment was on the 15/02/11.
She
conceded that she went in the bank system without defendant’s
permission to his profile uplifting his name, surname,
identity
document etc. In any event defendant was Standard bank’s
client and it was her job to contact him when
he did not turn up
for the appointment. She insisted that the defendant was Standard
bank’s client and denied that she wanted
him as a client.
[25]
Upon being asked about pages 196 and 197 in the bundle of documents
where defendant provided proof of address and identity
document,
she claimed not to have any idea why defendant brought such
documents. She did not know who asked him to bring those
documents
because they were in the system already. She claimed that the
document in page 163 of the bundle of documents (application)
was to
be sent to Liberty and did not have to wanted be signed. She was
asked if she was serious and whether she wanted the
court to
believe what she was saying. She insisted that the application did
not have to be signed. The defendant, however, signed
the application
on the 28/02/11 and his copy was not counter signed by Ms. Schoeman.
She could not explain the why the defendant
was asked or allowed to
sign if it was not necessary.
[26]
The allegations that the date 28/02/11 on page 168 of the bundle of
documents was changed were put to her. Only the defendant
signed this
document but on other pages (173) the date is not tampered with and
the document is counter signed by Ms Schoeman.
The document on
page 184 of the bundle of documents is signed on the 16/02/11. She
was confronted that this document created
impression that the
document was signed on the 16/02/11. She claimed that the document
was pre-prepared and that they were
generated on the 16/02/14
but signed on the 28/02/11.
[27]
She insisted that she got information from Amanda De Villiers through
their contact and this enabled her to pre-prepare
the
documents. She was asked how could she have known of the amount of
R690 000.00 that she put in page 186 (bundle of documents)
when
the mail from Amanda De Villiers in page 162 (bundle of documents)
makes mention of R700 000.00. She could not answer
when it was
put to her that she unlawfully got information from another source.
She denied that she hacked the defendant with R690 000.00
without his knowledge as per the mail (page 162) to Amanda. She
denied and submitted that as she was pre-preparing the documents,
she
was in a position get a round figure and insert it in the documents.
She was asked if it was not suppose to be a situation
where client
tells her of how much he could afford to invest rather than her
putting her round figure. She replied that
the client could change
that on date of signature where she could sign or decline.
[28]
Certain pages and dates of signature which were in dispute were put
to the witness. The following:-
a)
Page 187(bundle) was completed on the
15/02/11. The proposal letter which was a separate document was
signed on the 16/02/11.
b)
On page 186 (bundle) the document with
personal details was signed 15/02/11.
c)
Page 189 (bundle) is signed on 16/02/11 but
according to witness signed on 28/02/11 and further at the bottom of
the page (page
5 of 5) document is dated 15/02/11.
d)
Page 190 (bundle) documents were printed on
15/02/11. However, document for permission to get information from
defendant is dated
28/02/11. It was put to the witness that all other
things in this application were done without defendant knowing. She
denied the
allegation.
e)
Page 194(bundle), the date of signature as
per the document was 15/02/11 but according to the witness was signed
on 28/02/11.
f)
The documents, page 195 (bundle) prepared
and signed on the 16/02/11 but according to the witness, it was
signed on 28/02/11. It
was put to her that nowhere in the document
appears 28/02/11 but she was adamant that it was signed on the
28/02/11.
g)
On page 198 (bundle), Ms Schoeman signed on
behalf of the defendant. She was asked where in the document
does it say that
she could sign on behalf of the defendant. She could
not respond. It was put to the witness that according to the
document, clearly
under customer’s signature, it is stated that
“where a customer’s account is to be debited the
signatures must
be in accordance with specimens and or mandates held
by the bank.
[29]
On page 182 – 184 (bundle), in the “legal disclosure
form”, the space reserved for signature by defendant
was left
blank, unsigned. This is the space where one signs upon
given permission to act on behalf of defendant.
This
suggested that there was no permission given to transfer or debit.
Ms. Schoeman denied and she expected the court to
accept the document
as authorising the bank to debit. It was also put to her that the
document in page 184 (bundle) compared to
page 198 (bundle) is
supposed to be for disclosure, appointment of representative and to
obtain information not authorising transfer.
She insisted that the
bank accepted it as mandate to act.
Ms.
Schoeman, transferred the money without permission or mandate
from the defendant but she denied the accusation. It was
further put
to her that the transfer was done through the back-office and that
someone might have assisted her fully knowing well
that there was no
permission to transfer. She denied that she was assisted by anybody
else.
[30]
The document in page 198 (bundle) signed by Ms Schoeman on
behalf defendant was prepared on the 01/03/11 and she could
not
answer why the document was not prepared a day before (28/02/11)
when defendant was right in front of her. The question
was in
light of what the document required i.e. mandate, specifications
etc., she could not respond and give a clear answer. She
was
requested to precisely show in the document where defendant gave
her permission to transfer R690 000.00 from one
account to
another. The permission did not appear from any documentation before
court. She could not point in the document where
it showed
R600 000.00 is to be transferred from one account. She conceded
that the document in page 198 (bundle) required
the bank officials to
compare signatures so as to prevent unlawful transfers. She was asked
how she managed to deposit and
transfer R600 000.00 after
hours. She alleged that the instruction was given to the back-office.
She was asked which document
did she rely on because none of the
documents gave her permission to transfer the amount from the 32 day
account to any account.
She claimed to have relied on disclosure
documents but not to a specific document.
[31]
On page 200 (bundle),the document showed that monies were
transferred from the 32 day account of defendant to his Liberty
account, done at the back office after business hours (16H39). The
said document (on page 200, bundle) had provision for defendant’s
signature but his signature did not appear there. The was no
explanation from Ms Schoeman’s side. The balances
of both
current and 32 day account were shown and at the time, 0.00
balance reflected on the 32 day account. She could not
explain how
money was transferred from this account (in debit) to current
account.
[32]
The version of the defendant was put to her and she denied that the
defendant visited the bank in November 2010. She disputed
that she
phoned and visited the defendant in 2010 November. Ms. Schoeman
further denied that she had advised the defendant that
it would be
better for him and more beneficial if he could invest more than
R500 000.00 in the product Ms Schoeman was
selling. She
rejected the defendant’s version and denied that there was an
agreement that the defendant would make a cash
payment of
R500 000.00. She denied the following:
a)
That she phoned defendant before the period
of February 2011 and made appointment and met subsequently on
15/02/11;
b)
That the defendant brought cash
raised during the festive period;
c)
That the defendant handed her cash in
the amount of R600 000.00 with intention that the policy be paid
from it;
d)
That on two or more occasions i.e. 16/02/11
and 28/02/11, defendant visited the bank to see the her;
e)
That the defendant did not attend the bank
on 01/03/11 and made request for R690 000.00 to be transferred
to the 32 day notice-account.
She denied that the transfer was made
at defendant’s absence and without defendant’s
permission. She vehemenlty denied
that on the 15/02/11 she received
cash of R600 000.00 from the defendant and paid it to
Liberty life directly in the
plaintiff’s branch.
[33]
She claimed in cross-examination that when documents are
pre-prepared, the dates on it might not be correct i.e. date is
pre-populated
and set-up on work in the system. If for instance
document say the date (14/02/11) it would imply that it was not
concerning a
date for defendant. It was possible that the same date
was applicable to another client because it was pre-populated.
Plaintiff
closed its case.
DEFENDANT’S
EVIDENCE
[34]
The defendant is a businessman and a farmer and had approximately 15
(fifteen years of farming). He has been plaintiff’s
client
since 1993. His current account with the plaintiff was presently
dormant and overdrawn from March 2011 and had not used
it since then.
He stated that he knew Mrs. Schoeman as he had done business
with her. He claimed to have been phoned in November
2010 by a
certain Amanda De Villiers, a close acquaintance of his who told him
that she knew someone with better investments. A
lady by the name of
Joanine Schoeman called on his cell phone towards November and agreed
with him on a date and time for the appointment.
She told him
that in her investment it would be better if he accrued an amount of
R500 000.00 because then he would not be
charged anything but if
he deposited small amounts, it would not be with it.
[35]
In January 2011, Ms. Schoeman phoned and asked defendant jokingly
when he would be depositing further money because she had
realised
that he had just deposited in his call account an amount of
R300 000.00. They spoke of an amount of R700 000.00
to be deposited. He alleged that on the 15/02/11 he had R600 000.00
in cash with him and Schoeman showed him different portfolios.
He
handed the money to Ms. Schoeman who went out to the back office to
deposit it. The defendant claimed that he asked for proof when
he was told the documents handed over to him were proof enough to
confirm thr purchase of the policy On the 28/02/11 he arranged
and went to see Ms Schoeman.
[36]
The defendant alleged that on the 01/03/11 he went to Preller Square,
branch of the plaintiff when he realised that an amount
of
R693 000.00 was deposited in his current account. Late on the
same day the amount in his account was 1.4 million instead
of
R500 000.00. He notified the bank manager of the said
deposit. The bank manager apparently said he would follow
up. The
following week he went on to see the manager to ask him what was
happening because the money that was deposited was now
transferred
from his account and his account was now in overdraft. The plaintiff
only responded in May 2011 when defendant was
advised that
he was in overdraft. He claimed that he has never asked and never
obtained overdraft from the plaintiff.The plaintiff
sued him
initially and wanted to attach but that judgment
was rescinded. The defendant’s attorney
wrote to the bank
on 04/03/11 and the bank only responded on 10 May 2011, almost two
months later. The other case by the bank was
rescinded and the
present one, the defendant is defending .
[37]
The defendant claimed to have generated R600 000.00 in December
2010. He alleged that he raised this amount from his transport
business, minibuses, bakkies, speculating, buying and selling of
sheep. He stated that during December, people send their children
to
circumcision. They need transport and sheep to perform certain
cultural rituals and this had an effect of boosting his
earnings. He claimed that even before christmas, judging from the
deposit he normally made, the plaintiff knew that he could generate
such large amounts of cash. The defendant denied that he authorised
payment as alleged by Ms. Schoeman. He alleged that there was
no need
for authorisation because cash payment was already given to Ms.
Schoeman on the 15/02/11. The deposit in page 199 (bundle)
of
R600 000.00 was unfamiliar to him. He did not have knowledge of
the transaction from his current account to Liberty life
as depicted
in page 200 (bundle). He insisted that he made cash payment and never
authorised the other payment.
[38]
He received a phone call from Liberty life claiming that the
defendant wanted to cancel the policy. The defendant denied and
he
visited Liberty life and was shown a letter from Ms. Schoeman
advising that the defendant had given instruction to cancel the
policy. The defendant denied and told Liberty life that the statement
was not true and wrote to them for purposes cancelling
the
so called instruction to cancel by Ms Schoeman. The defendant had a
problem with the contents of the letter cancelling the
instruction to
cancel especially telling Liberty that he was cancelling his first
request. The defendant insisted that there was
no first request. He
never requested cancellation at all. The defendant claimed that he
never spoke to Ms. Schoeman after 28/02/11.
He surrendered his
policies with valued of R599 017.98. He claimed that the reason
for surrendering his policies was that
he wanted to pay a deposit for
the farm that he was purchasing with value of 3.4 million.
CROSS
EXAMINATION
[39]
He stated that his business involved a number of businesses,
transport, farming, livestock and speculating. He advised that
it was
not quite successful business. On the 15/02/11, he had an amount of
R600 000.00 cash with him. He did not get a receipt
from Ms.
Schoeman instead was advised that the documents he got from her were
proof that money was paid and policy activated. He
claimed that Ms.
Schoeman advised that the money must be paid in cash as this would
save the defendant on service fee. The defendant
never received
policy documents instead he was told he would get statements.
[40]
The defendant further said that he has never dealt with Ms. Schoeman
before but Ms. Amanda De Villiers. He saw Ms Schoeman
in November
2010 when she explained and presented different portfolios. He
rejected the assertion by Ms. Schoeman that she was
off sick from
October 2010 as a result of operation and came back in January. He
insisted that he saw her at the bank November
2010 and 15/02/2011.
The defendant further denied submissions by Amanda De Villiers
and averred that he was sitting with
her when she sent the mail to
Ms. Schoeman as per page 162 (bundle).
[41]
The defendant advised that he took up the issue of the transfer with
a certain Willem and subsequently took the matter
up with his
attorney. He explained that he gave permission to Ms. Schoeman in
November 2011 to view his Liberty life profile there
and then at her
office. This permission was not for future transactions. He disputed
that in November Ms. Schoeman was sick. She
actually offered him an
interesting policy but suggested an investment of R500 000.00.
He claimed that he spoke telephonically
with Ms. Schoeman and the
documents signed 28/02/11 were the same documents given to him on
15/02/11 by Ms. Schoeman. The documents
are marked Annexure “C”
and are only signed by the defendant. They are the same documents as
those on pages 147, 148,
149, 150, 151, 152 and 153 of the bundle. He
claimed the document in page 144 (bundle) dealing with beneficiary
details for procedure
was not handed to him.
[42]
The document on page 98 (bundle) tittled [Vroeё terugbetaling
van beleggings] was done at the defendant’s instruction
at the
advice of a lady at the bank, apparently in order to save penalties.
The defendant claimed that the reasons given for early
re-payment and
the claim that he was opening an investment with them was false. The
early repayment was done for the building nothing
else.The defendant
was advised by bank officials in order to beat the system. He claimed
that on account of the advice he intentionally
made a statement that
created an impression that he needed an investment when in essence it
was a lie. He did not show any documentation
but just to say he
needed money for building. He was shown the way to go by
the bank official.
[43]
It was put to the defendant that his version was unlikely and
improbable because at the time he alleged to have made appointment
with Ms. Schoeman, she was in hospital. The defendant replied that
there was no proof of that submission before court. He went
to the
manager and complained when he detected the anomaly in the transfers
upon being asked the reason for not summonsing Liberty,
he claimed to
have approached people who knew what to do. He went to see the
attorneys and he could not object if they wrote letters
to the bank.
The defendant claimed that he was asked to sign the document at page
187 (bundle) product replacement questionnaire
because Ms. Schoeman
asked him to sign. He was brought a package as it was standard
practise in a bank to be asked to sign the
documents. You just sign
because you normally trust the bank.
[44]
He gave evidence that he never spoke to Ms. Schoeman about the 32 day
notice account. He claimed to have trusted her and that’s
the
reason he did not ask for receipt. He claimed that Ms. Schoeman stole
the money i.e. R600 000.00. He alleged that the
money was
clearly not deposited and hence he went to the attorneys to lodge a
fraud complaint. He said his concern at the time
was the R693 000.00.
He insisted that his version was honest and that he had trusted Ms
Schoeman. According to him when Ms.
Schoeman sent a letter to cancel
his Liberty life Policy without his instruction, that was done to
stop and reverse the process
because she knew she stole the
money. He insisted that he gave instructions to the attorney to
attend to the issue. He claimed
that his version is not fabrication
because there’s no document before court to infer that he stole
money or was fraudulent.
He alleged that Amanda De Villiers and Ms.
Schoeman conspired to steal.
[45]
The defendant mentioned that there two summonses issued by the
plaintiff against him. The first are under case number 3936/11
was
rescinded and summons withdrawn. He was defending and still
busy with the present case. He had deposed to an affidavit
opposing the summary judgment already on 19
th
January 2012. In paragraph 15, of the affidavit he mentioned
that on the 15/02/11, he went to Standard bank to meet with
Joanine
Schoeman to invest R600 000.00 in one of the portfolios. In
paragraph 16 and 17 of the affidavit, he confirmed the
meeting with
Ms. Schoeman. In paragraph 12, Ms Schoeman advised the defendant
that he would be charged a lot in deposit fees
if he deposited the
money using his personal account. She would rather handle the deposit
herself where she would open a Liberty
Life investment account on
defendant’s behalf and there would be no deposit fees at all.
In paragraph 18, defendant alleged
that Ms. Schoeman printed a number
of documents for signature as acceptance of new policy. He signed the
documents which were handed
to court as Annexure “C,”
where all the pages were signed by defendant with the exception of
the last page. The defendant
showed that the document, Annexure “C”,
given to him was similar to pages 174 – 180 of the bundle. The
only difference
is that the bundle pages had dates and signature of
Ms. Schoeman. Page 8, of Annexure “C” is similar to
page
190 of the bundle. The difference is that in the bundle at page
190, a signature is added of both defendant and Ms Schoeman. The
documents received from Ms Schoeman similar to Annexure “C”
especially in comparison to page 191 of the bundle,
is the same
document and the same date appears (15/02/11) but the signature of Ms
Schoeman also appears in page 191 of the
bundle. The defendant
claimed that when he got the documents, Annexure “C”, it
was at the time when he met with Ms
Schoeman on 15/02/11 at
approximately 15H15 when she printed the documents in his presence.
[46]
Plaintiff’s witness, Ms Schoeman denied that she met with the
defendant on the 15/02/11 at 15H15. The defendant closed
its case.
CLOSING
ARGUMENTS
[47]
Plaintiff claimed that the case was not necessary on legal point but
on dispute of facts. He asked the court to give judgment
in favour of
the plaintiff as per the particulars of claim for an amount of
R571 590.27 plus interest at 15.5% from the date
of summons,
26/02/11 as well as costs of suit. Plaintiff claimed that
locus
standi
, identity of parties,
jurisdiction and the amount involved were not in dispute. The
overdrawn balance of the defendant’s
current account was
apparent in the statement.
[38] The plaintiff
argued that the items which were in dispute was:
1.
Whether Joanine Schoeman was advised to
transfer the amount from 32 day notice account to current account;
2.
Did the defendant hand to Joanine Schoeman
R600 000.00.?
Plaintiff
alleged that the enquiry is not the same. It claimed that the liberty
life policy was issued, an attempt to cancel, defendant
wanted to
proceed after two months surrendered the policy and the defendant got
the benefit. The amount paid for policy came from
defendant’s
account. It alleged that the R693 000.00 balance in the 32
day call account was an authorised transaction.
The reversal was
justified and the transfer was made. Both updates and duplication is
discovered resulting in the reversal. It
argued that the defendant
knew that his liberty account was paid from his current account not
from cash. It claimed that it was
extremely unlikely for the
defendant to leave the bank without receipt, without policy and proof
of deposit, leaving only with
documents that do not relate to the
R600 000.00. Plaintiff claimed that a reasonable person would
never have left the bank
without proof. It claimed that the defendant
was educated and there was no argument that he did not understand. He
had other policies
with the bank. It argued that the only reasonable
conclusion was that the defendant did not have R600 000.00 with
him at the
time. It claimed that there was no theft reported to the
police or referral to ombudsman etc. The letter from the attorneys
did
not even mention theft at all. Plaintiff argued that no person
with an acumen of the defendant would hand over R600 000.00
without receipt. It claimed that no reasonable person would believe
as the defendant did that the documents it was given at the
meeting
with Joanine Schoeman especially when the defendant had policies was
proof of payment.
[39]
Plaintiff claimed that the version of the defendant was unlikely
compared to the plaintiff’s witnesses. It submitted
that
Joanine Schoeman was an honest witness. She did not waive, did not
shake and had reasonable explanation. She alleged to have
seen
Mokoena on the 28/02/11. She pre-prepared documents as is normal
procedure. It was signed on behalf of plaintiff and that
it was
highly unlikely that she would jeopardise her job. She did not accept
cash and the defendant got benefit of the transfer.
It was further
argued that Ms. Amanda De Villiers as a witness was not shaken as
well. She argued that Ms. J. Schoeman did not
speak to Mokoena before
the 15/02/11. Plaintiff submitted that Ms. J. Schoeman had an
operation in 2010 November / December. She
was off for eight weeks,
2010 (December) to early January 2011. Plaintiff alleged that it is
in fact required to show that the
defendant is in overdraft. On the
defences raised, it submitted that the onus was on the defendant to
establish its defence on
balance of probabilities. It claimed that
the plaintiff’s version was plausible accurate. It claimed Ms.
De Villiers was
not shaken in cross-examination and gave reasonable
answers to all questions. Plaintiff claimed that defendant’s
version
was highly implausible and cannot sustain a defence. It
prayed for judgment in its favour as per the summons and particulars
of
claim.
DEFENDANT’S
CLOSING ARGUMENT
[40] It raised three
issues which were in dispute i.e.
a)
Transfer of the amount of R600 000.00
on from 32 account to current account,
b)
Transfer of R600 000.00 from current
account to liberty account.
c)
Payment of R600 000.00 to Schoeman on
the 15/02/11.
Defendant
submitted that Ms. Schoeman was an official of the bank and as such
employed by the bank and subject to its rules. In
paragraph 6 of its
particulars of claim, the plaintiff alleged that on the 01/03/11, and
at the plaintiff’s Loch Logan Branch,
an amount of R690 000.00
was transferred from the defendant’s 32 day Notice account into
the defendants current account
at the defendants request.”
This appears on page 202 of the bundle of documents clearly after
close of business.
Ms Schoeman admitted that she completed
documents that made this transaction possible. The transfer
made earlier that day
of 01/03/2011) of 693 526 96 as per
paragraph (8) of particulars of claim was not a duplication.
The transfer at page
201 of the bundle at 11H43 on the 01/03/2011 and
available balance was 69.131.13. The transfer was correctly
made because
there were funds available according to annexure “C”
of the Particulars of claim, there was a balance of R1 207 463
86, on the account on 11/02/2011. The email from Ms De Villiers
at page 162 of the bundle confirms that there was money on
the 32 day
call account so the transfer to current account was lawful since
there was a balance.
[41]
The defendant raised the question and asked how was it possible that
Ms Schoeman was successful to transfer later that day
an amount of
R600 000.00 on the 01/03/2011 from the 32 account to current
account when there was only R 69.131.13 balance
available. The
documents at page 198 of the bundle purportedly signed on behalf of
the defendant by Ms Schoeman at the “back
office” would
never have been honoured because of the lawful transaction earlier
that day. Ms Schoeman must have had
some form of assistance
from another employee of Standard bank which happened after hours as
the transaction showed. The
transaction was unlawful as the
document at page 198 of the bundle was supposed to have been signed
by the owner to prevent fraud
or any unlawful activity. The
document is clearly stated under customers signature that “where
a customer’s account
is to debited, the signatures must be in
accordance with specimens and/or mandates held by bank.
How
did Ms Schoeman successfully manage to transfer R 600 000.00 to
the current account? The 32 notice account clearly
from page
201 of the bundle had no overdraft. She transferred money
totally against the rules of the bank. She
must have had some
form of assistance
ex facie
the
documents.
[42]
The plaintiff’s case as per paragraph 6 of the Particulars of
claim, is pleaded but there was no evidence before court
that the
defendant requested the transfer. The document in page 195
purporting to be the authorisation signed on behalf of
the defendant
by Ms Schoeman on the 28/02/11, a day preceding the 01/03/2011.
Upon being asked for an explanation, Ms Schoeman
said it was not
necessary because she had authority to sign on behalf of the
defendant. She did not tell the defendants that
she would sign
(pp) on his behalf. It was evidently clear that she neither had
mandate nor permission to do so and it was
clearly an unlawful
transaction. Money was transferred without the 32 notice given.
No evidence of 32 notice was given to
transfer from 32 account to
current account. Ms Schoeman was successful with the
transaction without notice or reason for
not giving notice.
There is no reason at page 198 (bundle) why she could not do the
transaction because it had been done
before with another. The
R600 000.00 on current account to liberty account must also have
been done without authorisation
or with a slip similar to the one at
page 198 of the bundle containing details of account holder.
Everything in page 198
(bundle) that appear on the document was done
by Ms Schoeman.The defendant argued and submitted that there
should have been
a similar transfer document from current account to
liberty account. It was not before court and was not even
discovered.
Defendant submitted that in page 200 of the bundle,
the document is supposed to be proof of payment according to Ms
Schoeman but
there is no signature by the defendant. Clearly
the proof of payment was not authorised as well hence the portion or
gap
for the signature by defendant is left blank. The
transaction was done after hours (16H39) leaving the current account
overdrawn. The unauthorised transfer after hours had the effect
of leaving account overdrawn. At the time there was
no
overdraft facilities in the account. So the transfer of
R600 000.00 from current account to liberty life was unlawful.
There was no authority, no attempt from Mr Schoeman claiming she was
authorised and there was no attempt from her to show that
there were
documents authorising withdrawal. There is the document before
court to say it was done as per a certain document.
The
transfer, clearly was done orally. Ms Schoeman conveyed to a
colleague at the back office. This withdrawal left
the current
account with a minus balance.
[43]
The defendant version was that he handed to Ms J Schoeman an amount
of R600 000.00 cash on the 15/02/2011. The defendant
submitted that there were two versions in this case. The
defendant said that he is a man of means and could pay R600 000.00
in cash. Amounts are clearly seen being paid cash in his
account an amount of R45 000.00 is paid cash on 08/02/2011
as
per Annexure “B” of the Particulars of Claim. This
evidence was never disputed that he could afford large
sums of
money. Both De Villiers and Schoeman were so interested with
his money that they wanted to do business with him.
When the
defendant came without an appointment, it was not a problem. Ms
Schoeman denies receiving the cash and consulting
on the 15/02/2011.
The document at least must show that there was a consultation on the
15/02/2011. There are too much
document carrying the date
15/02/2011. Pages 185,186,187,188 and 189 in the bundle signed
by both parties have a date of
15/02/2011. Page 187 also signed
by both parties had also a date of 16/02/11 affixed. In
page 188, both parties
signed next to the date 15/02/2011 and above
it. Page 190 signed by both parties at 15:15 on the
15/02/2011. Annexure
“C” is dated 15/02/2011
at page 8 and 9 signed only by the defendant.
[44]
The documents discovered by the plaintiff had two signatures.
All documents handed over to defendant as annexure “C”
carry no date except page 8 and 9 with only defendant’s
signature. The equivalent is that the same document by
plaintiff
are signed and dated. The document, “C,”
must have been handed by Ms Schoeman on the 15/02/2011 as per the
opposing
papers in the summary judgment application. Ms
Schoeman does not want to admit that on the 15/02/2011, she made
contact with
the defendant. The court will accept as per the
defendant that the amount might have been handed to her. She
was not
strong witness and did not take the court into her
confidence. The two transfers i.e. R693 000.00 transferred
without
authorisation and an amount of R600 000.00 transferred
without any documentation but Ms Schoeman succeeds with those
transfers. Defendant submitted that plaintiff carried an onus
in this matter. The version placed before court by defendant
is
sufficiently probable. The plaintiff still carried the onus on
the facts, judgment cannot be granted in any amount, plaintiff’s
claim should be dismissed with costs.
[45]
In reply, the plaintiff submitted that the defendant took benefit of
the transfer knowing that there was no deposit in his
account.
He could have raised alarm. The plaintiff asked why no
complaint of payment of R600 000.00 to liberty
account from his
current account. It claimed that the withdrawal from 32 notice
account could be done without incurring penalties.
Plaintiff
alleged that defendant was a party to a dishonest transaction.
It conceded that there were two versions but Ms
Schoeman was
supported by Ms De Villiers. It submitted that defendant‘s
version be treated with caution. It conceded
that defendant was
a man of means. Plaintiff claimed to have discharged the onus
because it proved that the defendant was
in overdraft. It
claimed that there was no proof of R600 000.00 cash from
defendant. Plaintiff asked for judgment
and submitted that it
discharged the onus.
Analysis of
Evidence
[46]
In the opposing papers opposing summary judgment application filed on
the 19/01/2012, the respondent (defendant) alleged that
he received a
call from a lady from Standard bank on or about November 2010.
This lady, clearly from the papers was Ms Joanne
Schoeman. He alleged
to have met her again on the 15/02/2011 after receipt of a call from
Ms Schoeman to come and invest and also
questioned him whether he had
managed to raise the money. The respondent (defendant)
submitted in the application for summary
judgment that parties would
have to avail themselves on trial to answer the mystery of
transactions that took place on respondent’s
(defendant)
account. The respondent (defendant) in the application for
summary judgment raised the question as to the fact
that the two
transactions were conducted in the 32 day account on the same day and
neither of the two employees from both banks
could see that the
respondent’s account had no funds. Yet, the transaction
is done and authorised. He further
alleged that he was
surprised by the fact that the claim is on his main account (current
account) rather than the 32 day notice
account which was the cause of
action.
[47]
The email by Ms De Villiers to Ms Schoeman was sent at the same time
whilst the defendant was sitting with Ms De Villiers.
The
concerns raised in the mail were misleading in the sense that the
message was that the defendant was hard to find when in essence
he
was sitting with Ms De Villiers. She looked at the profile of
the defendant in the system. When asked on what
capacity
was she doing that because she was not authorised to do that,
she merely alleged that on her capacity as sales consultant.
The question that faced her was whether she was authorised to do that
as per bank practice. When asked about the meaning of the
mail sent
to Ms Schoeman i.e. “now he will find who I am”.
Ms De Villiers denied that she was threatening
the defendant.
It was further put to her that the mail suggested that both Ms De
Villiers and Ms Schoeman knew the defendant.
It (mail) read “I
spoke to Mr Mokoena. It does not say she spoke to a certain gentleman
who is a businessman. Clearly
it suggested that they knew each
other. It is also not clear what was the interest of Ms De Villiers
in defendant purchasing the
product because Ms Schoeman was the one
selling the product. Her answer to the effect that she thought
only of the client
making better interest does not make sense.
Why would she look at the defendant’s profile as sales
consultant and sends
threatening mail if she had no interest in the
matter. She stated that she did not know whether the defendant and Ms
Schoeman know
each other before. The mail suggests otherwise.
[48]
Ms De Villiers claimed that she does not have input in terms of which
products Ms Schoeman sells. If this is correct,
why would Ms De
Villiers write a mail (page 162) of the bundle stating “Ek sal
hom vastrek!!!,Hy ken my nog net nie.”?
[49]
Ms Schoeman involvement with Liberty life was that she resigned in
1996. She worked for Standard bank in 1991.
She resigned
in 1996 and was re-employed by Standard bank in 2003. She was
currently a financial planner. The link
between Liberty life
and Standard bank was very important if she had resigned in 1996 at
Liberty life. She claimed to have
never knew Mr Mokoena before
the mail sent to her by Ms De Villiers. The mail suggested that
both knew Mr Mokoena (“I
spoke to Mr Mokoena about his R700 000
that is in his 32 day notice account.”
Ms
Schoeman alleged that Mr Mokoena finally arrived without an
appointment on the 28/02/11. She was busy with client at the
time, a certain Ms Mompadi. This Ms Mompadi was never called to
collaborate this version. Ms Schoeman ought to have
known or at
least the plaintiff ought to have been aware from previous
application (summary judgment) that the defendant had contended
that
he met Ms Schoeman on the 15/02/2011. The date 28/02/2011 was
in dispute from the beginning because the defendant
insisted it
was the 15/02/2011. In light of the dispute, it was prudent to
call Ms Mampadi. Ms Schoeman does not explain
why she attended
to the defendant without an appointment to the extent that she
excused a potential client if she never knew who
Mr Mokoena was and
had never dealt with him before. Why would Ms Schoeman request
permission from the so called Ms Mompati
to see a stranger without an
appointment.?
[50]
If Ms Schoeman saw the defendant for the first time on the
28/02/2011, how would she have discussed as per the summary of
transaction proposal in page 195 (bundle) on 16/02/2011 referring to
the discussion that had already taken place? In this
mail she
stated that she explained various options. The defendant said
after long presentation on the 15/02/2011, he finally
agreed to
purchase the policy. The summary on the 16/05/2012 seems to
suggest the discussion with the defendant on the 15/02/2011.
It
could not have been the other date. The defendant disputed that
he gave permission for Ms Schoeman to sign on his behalf
as per page
198 (bundle) debiting the 32 day notice and crediting achiever
account. The contention by Ms Schoeman that she
had permission
could not be sustained. This happened a day after the defendant
saw her on the 28/02/2011. Why could
it not have been done on
the 28/02/2011, is not explained. The transfer on the 01/03/11
was procesed after hours when
the bank was closed at 16H39 and
there is no signature by defendant. The defendant disputed that
he arranged with Liberty
life to cancel the policy. He went to
re-instate the policy upon being told of the alleged instruction to
cancel.
[51]
When the plea of the defendant was placed before Ms Schoeman, she
vehemently denied that she met the defendant on the 15/02/2011.
If she is indeed correct, how does she explain the summary on page
195 of the bundle. This bundle and its contents has not
been
put in dispute. It has been accepted by both parties. Ms
Schoeman makes no mention of the meeting of the 15/02/2011.
She
alleged that the defendant did not arrive for the appointment on
16/02/2011, 18/02/2011 and 21/02/2011. This is now her
evidence
in chief. The summary (summarising the previous discussions
regarding different portfolios) at page 195 (bundle)
say something
else.
[52]
In cross examination, only then Ms Schoeman alleged that on
15/02/2011, he made contact with defendant in mid-morning to make
appointment. She claimed that she got the details of the
defendant on the system without defendant’s permission.
She claimed the defendant was Standard bank’s client assumedly
no permission was needed. Strangely without permission,
gets
details and particulars of Standard bank client so that she could
sell the policy of Liberty life which according to her evidence
was
not been based at the same building as Standard bank as Loch Logan.
Is this acceptable bank practices? In any event
this version at
cross examination still does not explain the summary at page 195
(bundle). The contact on the 15/02/2011
according to her was to
arrange appointment for the 16/02/2011. He did not pitch on the
16/02/2011,18/02/11 and 21/02/11
as per her evidence. Why would
there be a summary on the 16/02/2011 if there was no meeting and
presentation on the 15/02/2011
or any other day before the 15/02/11?
[53]
It is clear that the defendant, a Standard bank client was pursued by
a Standard bank employee for her Liberty client.
Ms Schoeman
responded that the application for Liberty policy did not have to be
signed upon being asked why it was never signed
on page 165 and 166
of the bundle. When she was asked why in the application dated
28/02/2011, was signed, she could not
give a clear response.
Upon being asked of the amount to be invested (R690 000.00) when
Ms De Villiers advised her of
R700 000.00. How did she
know the amount to be invested was R690 000.00 if he was not
told by defendant on the
15/02/2011. The document is dated
15/02/2011. Clearly that information she did not get from Ms De
Villiers. It
was put to her that she got the information from
another source. She disagreed and claimed that it was
pre-preparation where
she got a round figure to be inserted. It
was put to her that the client is supposed to tell her how much he
can afford not
her inserting a round figure. She argued that on
the date of signature, client could always change the amount.
This
was now a contradiction from her previous evidence that the
application does not have to be signed. Why would client change
the amount inserted on signature if the application was not supposed
to be signed. The dates appearing on the documents should
be
the dates of actual signature for formality purposes. This
enables the bank to verify and follow a trail of documents
whenever
there was a dispute relating to any transaction. Proper dates
would make it easy to trace the root of any challenge
especially
regarding certainity about the dates the transaction took place.
The date of 28/02/2011 which Ms Schoeman is alleging
to be the date
of signature and meeting with the defendant does not appear on the
documents. The 15/02/2011 is the
date that appears in
most documents. The document in page 194, the date of signature
as per the document is 15/02/2011 but
according to Ms Schoeman it was
signed on the 28/02/2011. The document in page 195 (bundle)
clearly a summary of discussions
that took place before the
16/02/2011, signed on 16/02/2011, Ms Schoeman insists it was signed
on the 28/02/2011. Clearly,this
submission cannot be correct.
[54]
Nowhere in the document at page 198 (bundle) does it appear that Ms
Schoeman was authorised to sign on behalf of the defendant.
To
the contrary, there is a safety measure in place where the bank
clearly stated on the document that a “signature must
be in
accordance with specimen of mandate held by bank where client’s
account has to debited.” This measure is
clearly written
underneath the place where the signature of client had to be
affixed. This is a safety measure by the bank
to prevent
fraud. The defendant submitted that there was no authority
given to Ms Schoeman to debit defendant’s account.
Nowhere in the document is the authority shown or signed. She
did not deny that there was no permission to transfer the amount
of
R690 000.00 which is altered and replaced with the amount
of R600 000.00. Even though Ms Schoeman disagreed,
the
defendant version corroborates the contents of page 194. Ms
Schoeman disputed the evidence by the defendant that on two
or more
occasion, he visited the bank to see her especially on 16/02/2011 and
again 28/02/2011. Strangely on her evidence
the defendant saw
her on the 28/02/2011. Why would she now dispute the date
28/02/2011.
[55]
Ms Schoeman denied the allegation put to her in respect of the plea
in page 43 of the index to pleadings. She denied
that the
transfer at page 198 (bundle) was made without the defendants
presence and knowledge. It is confusing and difficult
to
understand why Ms Schoeman signed on behalf of the defendant for
the transfer if it denies the allegation that the transfer
was made
without the defendant’s presence and knowledge. Ms Schoeman
denied the contents of paragraph 8.3 of the plea at
page 44 where it
was alleged that she took the R600 000.00 and paid it to Liberty
account within the plaintiff’s branch.
She even alleged
in her evidence in chief that Liberty life does not even occupy the
same building in Loch Logan so she could not
have paid it there.
In light of this denial, Ms Schoeman would have to explain the
deposit slip at page 199 of the bundle,
a deposit slip of
R600 000.00directly to Liberty life. This deposit slip is
undated, without a teller’s signature
and date stamp.
There is no explanation forthcoming regarding this anomaly. Is
this standard practice that deposit
slip are not stamped, no date
stamp, no signature etc.?
[56]
She argued that the bank used a system where it pre-populates dates,
meaning that a date in the document would not necessary
mean that it
was applicable to that particular transaction. It would imply
that it was not concerning a date for Mokoena
(defendant) but it was
possible that the same date was applicable to another client.
Clearly, this strange system did
not create certainty.
It therefore meant the bank could not keep proper records if a date
of transaction in another client’s
application in the system
might actually not refer to that client but to another. Ms
Schoeman had previously advised
in her evidence that the
application did not have to be signed. Now the court is told
that certain information regarding
dates in the system might actually
refer to another client. The defendant alleged that on the
15/02/2011, Ms Schoeman showed
him different portfolios, this is
corroborated by her summary at page 195 (bundle). Defendant
alleged that Ms Schoeman took
the money and went to deposit at the
back office. Page 199 (bundle) there is a deposit slip of
R600 000.00 without date
stamp, teller’s stamp and
signature.
[57]
The defendant claimed that Mrs De Villiers was a liar. In
her mail to Ms Schoeman she created an impression that
it was
difficult to get hold of the defendant. The mail did not say
that the defendant (Mokoena) was sitting with Amanda
and as such Ms
Schoeman could arrange appointment there and then. There is no
explanation from Ms Schoeman regarding annexure
“C”
handed to court. The documents were handed to the defendant on
the 18/02/2011 and were only signed by the
defendant and were
undated. However, the same documents in the bundle (pages)
147,148,149,150,151,152 and 153) are signed
by both parties and are
dated 28/02/2011. In the document at page 98 (bundle) (vroeër
terug betaling van beleggings)
the defendant is advised by a bank
employee/ official how to save penalties. He wanted the money
for building but was advised
to mislead and claim that he needed the
money for investment with Stanlib. It was accordingly written
on the document (investing
with us at Stanlib). At the bottom
it was written (referred authorised since investing with us at
Stanlib). Clearly,
the bank employee was misrepresenting the
facts when making these entries. This official told the
defendant that
was the way to go to get the money.The defendant
argued that there was no proof that Ms Schoeman was in hospital and
was on leave
from December 2010 to late January 2011. Ms Schoeman
should have brought proof of hospitalisation or sick leave notes
submitted
to the plaintiff to corroborate her version. The
defendant had raised this issue of dates when he met with Ms Schoeman
(November
2010 and February 2011) in the affidavit in January 2012
already. The plaintiff ought to have brought forward evidence
to challenge this assertion as alluded above. Evidence before
court showed to the meeting of the 15/02/2011. The defendant
went to the manager and complained of the transaction which was not
authorised amounting to R690 000.00. The defendant
claimed that he never applied for an overdraft. He signed all
the documents that Ms Schoeman asked him to sign because he
had trust
in the bank. When one looks at page 195 (bundle), the summary of what
transpired before the 16/02/11, it make sense to
say there was a
meeting on the 15/02/2011. The defendant took reasonable steps
and went to see the manager of the bank.
He said he trusted the
bank but conceded that he knew the office of the manager and his face
but not his name. He could not be
accused of taking very little
steps. He was assisted to draw the money by bank official.
The entry in the document
for the early withdrawal was clearly
incorrect. The defendant neither invested with Stanlib nor was
there evidence showing
that he invested with Stanlib. Why would
Ms Schoeman advise Liberty life that the defendant wanted to cancel
the policy when
he clearly did not give such instruction to cancel.
He went and cancelled that instruction personally at Liberty life.
The
defendant contended Ms Schoeman wanted to stop the process
because he knew that she stole the money. The defendant
consulted
his attorneys when he established the unauthorised
transactions. He did not read the complaints procedure
resolution.
He had already complained with the bank manager.
He left everything for his attorneys to sort.
[58]
There is no explanation form the witness (Ms Schoeman) regarding the
difference in signature and documents in the
bundle,
similar in nature and form with those she handed over to the
defendant marked Annexure “C”. These were
handed to
defendant and were only signed by him and were undated. The
documents in possession of court in the bundle are
signed by both
parties. Ms Schoeman had inserted the date of the 28/02/2011 in
these documents. In her evidence in
cross-examination, she had
argued that the documents or the application did not have to be
signed. If these documents were
pre-prepared as Ms Schoeman
would like the court to believe, why then the difference? The
documents which were handed to
defendant as annexure “C”
are not dated but are supposed to have been pre-prepared before his
appointment. However
the same documents in the bundle handed as
part of the application are dated and signed by both parties on the
28/02/2011.
The defendant alleged that the reason he was asked
to hand over the R600 000.00 to Ms Schoeman was to avoid high
fees.
He contended that if Ms Schoeman deposited the money
herself there would be no such fees. The plaintiff did not
dispute the
existence of this type of reprieve of payment of fees
from its side. It only disputed that the amount of R600 000 was
handed
over to Ms Schoeman.
[59]
There is no explanation from the plaintiff given the electronic
nature of transfers in bank business. How is it possible
that
there was a transfer of large amounts of money from an account which
had a debit balance to another account? Why the
plaintiff did
not discover immediately the alleged duplicate of transfers that led
to the reversal. There is no onus to be
discharged by the
defendant. The plaintiff had to discharge the onus and prove
that the defendant was liable for the monies
claimed. Plaintiff
cannot rely on what was supposed to have been by the defendant or
actions not take by defendant.
The defendant has submitted that
in the bank one is normally given lot of documents to sign.
He signed without asking
questions because he trust the bank.
The plaintiff had argued that Ms Schoeman had seen the defendant for
the first time
on 28/02/11 and had pre-prepared the documents as is
normal practice. The question is why the documents corroborate
the defendant’s
version? Why is there so much the date of
the 15/02/11 in the documents compared to the 28/02/2011? The
summary made
by Ms Schoeman on the 16/02/2011 belied her version that
there was no meeting on the 15/02/2011. Clearly there was a
meeting before the 16/02/2011 as the summary of Ms Schoeman at page
195 of the bundle narrated by plaintiff as summary of transaction
of
proposal from Joanne Schoeman to the defendant. This is very
important and crucial but the plaintiff chose not to explain.
[60]
The plaintiff argued that Ms Schoeman was unlikely to have done
something that could jeopardise her job i.e. she was not allowed
to
take cash etc. Clearly from the evidence she acted against bank
practices. Why did she sign on behalf of the defendant
when
clearly she had no authority to do so? The plaintiff clearly
put in its documents that only the client should sign and
the
specimen and mandates should correspond with the one’s held by
the bank. These were safety measures designed to
avoid unlawful
transactions. Mr Schoeman conceded this point but went on to
sign on behalf of the defendant. She argued
that she was
authorised but does not poduce proof of this alleged authority. She
referred the court to disclosure forms as proof.
These clearly
ex facie
were
not poof of authority.
How
is it possible for Ms Schoeman to have successfully transferred large
amounts of money form a debit account of Liberty life
to current
account. If Ms Schoeman was unlikely to jeopardise her job, how
did she manage to transfer from a 32 notice account
without giving
the required 32 day notice? Is it allowed or permitted as per
bank practice that a deposit slip of such a
large amount of money
(R600 000.00) as per page 199 of the bundle is issued without
date stamp, signature and itself undated?
[61]
The plaintiff submitted that the defendant made benefit of the
transfer. The defendant went to attorneys in March 2011
already. The attorneys’ letter is dated 11/03/2011.
Why would he report this to his attorney if he had benefits
from the
transfer? He had asked the plaintiff to correct the error in
March 2011 already. Why would he ask for the correction
if the
transfer was benefitting him? The version by Amanda De Villiers
that she did not know if Ms Schoeman spoke to the
defendant before
the 15/02/2011 cannot be true. The content of her mail to Ms
Schoeman clearly showed that both knew who
they were talking about.
In her mail, she referred to an amount of R700 000.00 lying in
the account but in the application
Ms Schoeman put the amount of
R690 000.00 that the defendant was to invest claiming that it
was a round figure. What
a coincidence, clearly this
information she got from the defendant on or before the 15/02/2011.
Strangely, Ms De Villiers
whilst sitting with the defendant, on her
own evidence and admission, that the defendant was sitting in front
of her when she sent
the mail to Ms Schoeman on the 15/02/2011.
Why did she say she was having difficulty to get hold of Ms Mokoena
when he was
sitting with him in front of the computer? The
defendant has consistently maintained in his papers from the
opposition of
summary judgment to this present action that he had
made contact with Ms Joanine Schoeman in November/December 2010.
This
averment is known by the plaintiff or plaintiff ought to have
been aware of it. The question is why is there no evidence from
the plaintiff to corroborate Ms Schoeman version that at the time she
had an operation and was off sick. She could in the
circumstances not have had an appointment with the defendant.
Where is the evidence besides this bold statement. It
was easy
to get a hospital file, sick note or sick leave documents from the
plaintiff’s human resource department to corroborate
Ms
Schoeman version but to no avail.
[62]
The plaintiff claimed that it had an onus to show that the
defendant was in overdraft. If further claimed that it
had
shown that the defendant is indeed in overdraft. It seems to
escape the plaintiff that the defendant had no overdraft
facility
with it. It had not applied for one and did not have credit
facility. The plaintiff in its particular of claim
especially
at paragraph 15 “ ……… the defendant’s
current account was reversed on the 2
nd
of March 2011, leaving the current overdrawn.” The
question is whether the defendant can be held to be responsible
for the negligent conduct of the plaintiff? Clearly from the
evidence, it is not only negligence but fraudulent misrepresentation
of facts by plaintiff’s employees that lead to the overdrawn
account. There is no onus resting on the defendant showing
on
the balance of probabilities that his version is possible correct.
The onus lies with the plaintiff who had a duty to
discharge and
prove its case by showing that its evidence is true and the other is
false (see Mbilini vs Minister 1988(3)SA 705(A),See
also the case of
National Employers Mutual & General Association v Kenny 1931 at
pg 187-189.The court held that where there
are two stories mutually
destructive before the onus is discharged, the court must be
satisfied that the story of the litigant
upon whom the onus rests is
true and the other is false.
[63]
It is not allowed to transfer from the 32 day notice without notice
being given. The plaintiff’s witness (Ms Schoeman
did not
give or show evidence that the required notice was given. There
is no reason given for not giving the notice Ms Schoeman
inspite of
that is successful in doing the transfer. Clearly this must be
against established bank practices.
Proof of payment of
policy is not even signed by the defendant and should have been
.signed Clearly, the payment
without signature was
not authorised. It shows again that the bank procedures were
seriously compromised putting the plaintiff
at serious risks of
loss. Strangely, these transactions are done “after hours
at the back office”. During
these times “after
hour’s transactions”, there was no overdraft facility in
the account of the defendant.
The transfer of R600 000.00 was
done orally. There are no documents signed by the defendant
authorising withdrawal.
This was not legal bank practice and
there is only one inescapable conclusion to make in the circumstances
that Ms Schoeman was
assisted by a colleague at the “back
office, after hours”. At page 201 (bundle) electronic
interbank payment,
at the bottom of the page written by somebody that
“16:31 Loch logan (overide). One would have thought that
these kind
of transactions to override needed the attention of
someone in higher authority, especially in light of the amounts
involved.
Again plaintiff’s established procedures were
not adhered to. The crux of the matter is that a minus balance
was as
a result of these unlawful transactions.
At
page 188 of the bundle, the document is signed by both Ms Schoeman
and defendant twice. It is signed above the date 15/02/2011
and
next to it. This showed that parties were clearly aware of the
date on which they signed the document. It can be
the only
reason they signed twice and again next to date. There is no
proof for the allegation by the plaintiff that defendant
was party to
a dishonest transaction. He was advised by bank employees
against established practices of the bank for instance,
what
information to put so as to avoid incurring penalties upon
withdrawing from the 32 day notice early (vroeë terugbetaling
van beleggings) at page 98 of the bundle. The evidence shows
that the bank employees acted against their fiduciary
duty to
the bank and clearly against the interest of the bank. Bank
practices were seriously violated which ultimately led
to the loss to
the bank. A conflict of interest between bank employees and
Liberty was clearly visible. It is not clear
whether Mr
Schoeman was working or moonlighting for Liberty or was employed by
Standard bnk. The evidence show that she had
influence in both
the plaintiff and Liberty.
[64]
The parties especially the plaintiff was supposed to avail themselves
on trial to explain the mystery of transactions that
took place on
the defendant’s account. The plaintiff had the onus in
this respect. The evidence pointed to one
direction alone.
There is an important aspect which was pointed out by the court
during the hearing of the application for
summary judgment. The
plaintiff did not deal with it to its detriment if I may say.
The learned Judge stated the following
in her judgment:
“
Me
Groenewald conceded that the plaintiff’s operating system are
electronic and that in the ordinary course of business, the
systems
would not allow the withdrawal or transfer of funds that are not
physically available in an account
.
However, no explanation was forthcoming
as to how the plaintiff’s Preller Square branch authorised the
transfer of such large
amount of money when funds were clearly not
available in the 32 day account by the time the defendant requested
payment as he did.
No documentation or other evidence has been placed
before this court to indicate who applied for and authorised the
transfer of
R690 000.00, from the defendant’s 32 day account
into his current account, or who authorised the payment of R600
000.00 to
Liberty Life on 01/03/2011. In view of the defendant
denial that he authorised these transactions, it may well be
established
that he did not indeed authorise these transactions and
consequently that he does not owe the plaintiff the amount that it
claims”.
[65]
In the present case, clearly as conceded by both parties, there was a
dispute of facts. In the case of
Mabena
& Another v Minister of Law & Order
1988 (2) SA at 654, it was held that when the court is faced with two
conflicting versions, only one of which can be correct, then
the onus
is on the plaintiff to prove on preponderance of probabilities, that
his version is the truth. The onus is discharged
if the
plaintiff can show by credible evidence that his version is the more
probable and acceptable version.
The
bank’s duty to prevent loss of funds by adequately monitoring
and managing accounts was clearly stipulated in the case
of
Paterson
& Another NNO v Absa Bank Ltd
2011 (5) SA 484
(GNP).
It was
stated that the respondent (bank) had a statutory duty under
Financial Intelligence Centre Act 38 of 2001 (Fica) to
report a
suspicion. “when C opened banking accounts and transferred
large sums of money from one account to another, the
transfers
necessitated reporting in terms of FICA and inquiry to the account
holders. In the event that the bank had complied
with its
obligations in respect of the proper management and monitoring of the
accounts concerned, it would have established that
the activity
thereof had flagged internal risk procedures in respect of the high
value and volume of transactions and should accordingly
have been
treated as high risk” In the case at hand and applying
the sentiments echoed in the Paterson case, large
sums of money (R690
000.00, R600 000.00) were juggled from one account to another and
ultimately withdrawn in large sum.
A bank had to be vigilant
where the transaction was out of the ordinary.
[66]
The article titled “Compliance in bank matters” (De rebus
June 2012, page 38, by Felix Majoni.
“
The
banking industry is a regulated industry mainly because of the
important functions banks fulfil. Further, it is trite
that
banks should be solid and regulated in such a manner as to prevent
systematic risk through prudential regulation .......”
The
Mutual Banks Act of 124 of 1993 allowed banks to fulfil the role of
building societies.
“
Consumer
protection issues became paramount and as a result, corporate
government rules, disclosures transparency and accountability
became
the key concepts of regulation”.
“
Internet
controls, such as compliance, risk management plans should be
implemented so as to monitor compliance with regulatory provisions
and to achieve the objectives of the legislations and regulatory
requirements by creating an effective compliance regime.”
Very
importantly and applying to the present case, the following is true
of the plaintiff
“
avoiding reputation
– damaging incidents can deliver financial rewards, including
higher margins, as well as lower perceived
risk and can attract
capital. A bank without compliance problems also attracts
customers because like shareholders customers
prefer a trustworthy
brand”.
[67]
The conduct of the bank employees in the case at hand clearly
compromised the bank. Established practices and compliance
issues were not followed. The plaintiff did not heed the
warning given by the Judge in the application for summary judgment.
Clearly it has not been shown that the defendant authorised the
alleged transactions and consequently as initially highlighted
by the
judge does not owe the plaintiff the amounts claimed. Both witnesses
of the plaintiff tried to cover for each other. There
were so many
unanswered questions which were not explained. The incorrect
dates changed in the documents, failure to explain
transfers
successfully made in an account on debit, after hours transfers,
unsigned and undated deposit slips without bank stamp,
signing of
important documents and transfer of large sums of money without
authority from defendant, failure to show authority
to do what the
plaintiffs witnesses did in this matter. There is a litany of
breaches committed by bank employees which ultimately
compromised the
bank. The defendant had no duty to assist the plaintiff to
prove its case. The plaintiff failed to
discharge the onus and
as such the defendant does not owe plaintiff anything. The
plaintiff should seriously look at
the conduct of its employees
ranging from touting plaintiff’s existing clients to Liberty
whilst employed by plaintiff.
These employees owed plaintiff
duty of care but conducted themselves in a manner that had a
potential to compromise plaintiffs
reputation. They were not
honest witnesses and the evidence showed that. Ms Schoeman
changed her evidence as she went
along. Their evidence could
not be relied upon. In the famous
Stellenbosch
Farmers Winery Group Ltd & Another v Martell Et CIE & Others
2003(1)SA11 SCA, on determination of irreconcilable versions, it was
stated “that the technique generally employed by the
courts in
resolving factual disputes of this nature maybe conveniently
summarised as follows” to come to a conclusion
on disputed
issues a court must make a finding on (a)the credibility of various
factual witnesses(b) their reliability, and (c)the
probabilities.
In the case at hand, clearly the probabilities of the evidence of
plaintiff’s 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.
[68]
The resultant effect is that the plaintiff’s claim is dismissed
with costs. The following order is made:
1)
The Plaintiff’s claim against the
defendant is dismissed;
2)
Plaintiff is ordered to pay costs on a
normal party and party scale.
_____________
N.
P. JAJI, AJ
On
behalf of the Plaintiff: Adv. Sandler
Instructed
by:
Liezel
David Attorneys
c/o
Goodrick &Franklin Inc
BLOEMFONTEIN
On
behalf of the defendants:Adv. Burger SC
Instructed
by:
T.
Hadebe Attorneys
BLOEMFONTEIN