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[2013] ZAGPPHC 4
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Standard Bank of South Africa Ltd v Morris Mokase t/a Mokase Attorneys and Associates (41816/2011) [2013] ZAGPPHC 4 (11 January 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA NORTH GAUTENG : PRETORIA
Case
Number: 41816/2011
DATE:11/01/2013
In
the matter between:
STANDARD
BANK OF SOUTH AFRICA LIMITED
….............................
PLAINTIFF
and
MORRIS
MOKASE t/a
MOKASE
ATTORNEYS AND
ASSOCIATES
..............................................
DEFENDANT
JUDGMENT
A
A LOUW J
[1]
The plaintiff is Standard Bank of South
African Ltd, a registered commercial bank.
[2]
The first defendant is Morris Mokase an
attorney. He trades as M Mokase attorneys and associates in Pretorius
Street, Pretoria.
[3]
The plaintiff pleads that during March 2004 it entered into an
agreement with the defendant relating to a business current account.
A copy of the written part of the agreement is attached as annexure
“B” to the particulars of claim. The reference
to a
business account is clearly wrong as the whole case relates to money
received by the respondent in his trust banking account
and how he
dealt with that money. Although the defendant admits par 5 of the
particulars of claim in which the allegation regarding
the opening of
the business current account was made, the whole case was conducted
on the basis of what happened in his trust banking
account and I
believe that there will be no prejudice to deal with the case in that
way. The allegation in the particulars of claim
seems to be a simple
mistake. From the first page of annexure “B” it is
evident that the account number is 011549882,
which is the account
number of the defendant’s trust account, as appeared from
evidence.
[4]
The following are common cause facts:
A
cheque in the amount of R1 115 478, 26 was paid into the defendant’s
trust account on 16 September 2010.
2.
The cheque was drawn by City of Tshwane
Metropolitan Municipality in favour of SSS Cornerstone Building and
Construction CC (hereinafter
“the CC”). The cheque was
clearly marked not transferable.
3.
The cheque was fraudulently obtained by
someone and deposited in the aforesaid trust account.
4.
Subsequent to the deposit on 16
September 2010 the defendant dealt with the money as per exhibit
“A26”. This exhibit
also contains instances of reversal
of payments made to certain third parties as well as amounts
recovered from the defendant himself
by reversing bank entries.
5.
The plaintiff reimbursed City of Tshwane
in the full amount of the stolen cheque.
6.
It is
common cause on the pleadings that the plaintiff recovered an amount
of R199 678 from the defendant and certain third parties.
[5]
The plaintiff’s whole cause of
action appears from par 12 of the particulars of claim which reads as
follows:
"72.
Plaintiff has suffered damage in the amount of R949 390.20 (NINE
HUNDRED AND FORTY NINE THOUSAND THREE HUNDRED AND NINETY
RAND AND
TWENTY CENTS) as a direct result of the First Defendant’s
conduct, having been the withdrawal of monies which was
not due to
the First Defendant and which First Defendant
was not
entitled to, to which the First Defendant has become unduly enriched
in the aforementioned amount. ”
The
references to first defendant are wrong. There is only one defendant.
[6]
This paragraph is denied in the plea. It
is striking from paragraph 12 that the essential elements of
enrichment have not been alleged.
Furthermore an action based on
enrichment has nothing to do with “damage".
[7]
Even if I treat this as an enrichment
action, key elements of the condictio indebiti have not been alleged
or proved, such as:
1.
The transfer or payment must have been
made in the bona fide and reasonable but mistaken belief that it was
owing
1
.
2.
The error must have been reasonable
2
.
[8]
The cheque made out to the CC is to be
found at exhibit “B19” and, as already mentioned is
clearly made out to the CC
and marked “Not Transferable”.
In the light of this evidence as well as the evidence of ms Pretorius
and Mr Goliath,
employees of the bank in the fraud division, I cannot
find that the payment of the amount of this cheque into the trust
account,
i.e. that this cheque was met and credited to the
defendant’s trust account, was made in the bona fide and
reasonable belief
that it was owing to the defendant. Neither can I
find that the error was reasonable.
[9]
The cheque was stolen and fraudulently
paid into the Trust Account of the defendant. The plaintiff decided
to reimburse Tshwane
Metro, which it did.
[10]
The defendant counterclaims for the
amount of R199 678, being the amount recovered. His defence appears
from paragraph 3 of his
counterclaim:
“
3.
That on or about the 10
th
,
13
th
,
14
th
and the 18
th
of September 2010. I consulted with my clients Mr. Ngcobo and his
business partner Simon Marithi and took instructions from them.
On
the 16
th
of September Mr Ngcobo deposited a cheque in the amount of R1 115
478, 26 (One Million and one Hundred and fifteen Thousand Four
Hundred and seventy Eight Rand and Twenty six cents). I
n/as
instructed by my clients to dispense with the monies by paying
various companies and people and debited my fees. ”
For
the purposes of this judgment I need not deal with the evidence of
the said bank officials who performed certain investigations
and got
some explanation in respect of all the transactions which appear from
exhibit “A26”.
[11]
The third witness of the plaintiff was
Mr Simon Mavavasa Marothi. He is 57 years of age and came across as a
dignified building
contractor and businessman. I accept his evidence
unreservedly, especially as the defendant, who represented himself,
did not cross-examine
Marothi at all.
[12]
The essence of Marothi’s evidence
was that he was contracted to Tshwane Metro to build a clinic in
Mamelodi. The payment for
his last invoice was due during September
2010. His previous invoices were promptly paid by Tshwane Metro but
for this payment
he waited 7 months. His invoice was dated 6 August
2010. He testified that he struggled until 11 March 2011 to obtain
payment.
That is only after he had obtained the services of an
attorney to further his claim against Tshwane Metro. His first letter
of
demand, on behalf of the CC of which he is the only member, is
exhibit “B20” and is dated 20 October 2010. He also had
conversations with Mr Nico Mans at Tshwane Metro who was also helping
him to obtain the cheque. Mans then found out and said to
him that
the amount was paid into a trust account of an attorney. That was the
first time he heard about it. He further testified
that a CK1 form
(“A43”) in respect of SSS Cornerstones fe and S with
registration number 2008/138601/203 is a fraudulent
document. First
of all it is not his CC registration number. The correct number
appears from his letter referred to above. Secondly
it is striking
that the name on this falsified CK1 is not the same as the name of
the CC i.e. the payee of the cheque. Furthermore
he testified that
the person mentioned as the only member on the CK1 is not him i.e.
the name, although resembling his, is not
his and the identity number
is wrong. On exhibit “A44” there is a falsified copy of
an identity document. The identity
number at the top is his but the
photograph is not of him.
[13]
His further evidence was that a,
so-called contract to be found on exhibit “B55-57” has
nothing to do with him. The
defendant’s case is that that is a
contract he drafted on behalf of his clients. On the last page of
this document the signature
purporting to be on behalf of SSS
Cornerstone i.e. MS Makhiti is not the same person as he. He
concluded his evidence in chief
that on the date of the hearing it
was the first time that he ever saw the defendant, i.e. in court.
[14]
Mokase's evidence was according to the
paragraph of his counterclaim which I have quoted above. He however
did not call any of the
number of witnesses who could have supported
his version i.e. the people who were involved in the original
negotiations and his
clients who instructed him to make the payments.
[15]
According to an affidavit he made in
regard to answering a request for further documents to be discovered
3
he acted on the instructions of Mr Marithi and Ngcobo who were
engaged in a R5 000 000 contract with Metsing Industrial Services
CC
for the transportation route of chrome. This affidavit is remarkable
for it vagueness. He did not call Mr Abram
Metsing,
although he was available. There were a number of meetings, he says,
with Marithi and Ngcobo on behalf of SSS Cornerstones.
At some of
these meetings Mr Metsing was also available.
[16]
His alleged clients seem to be more
imagined than real.
[17]
After the first day of the hearing I
requested him to bring all his client files relating to this matter
as well as all relevant
bookkeeping documents. He failed to do so and
had a lame excuse of his motor vehicle having been clamped by Tshwane
Metro and towed
away. One would have expected him to have worked
throughout the night to get these documents, if necessary, due to its
importance.
His evidence was in fact that he had two files relating
to this matter.
[18]
On the probabilities the defendant was
involved in a fraudulent scheme. Somebody from Standard Bank must
also have been involved
in crediting the defendant’s account
with this cheque which was obviously not made out to him. Furthermore
I find it strange
that three cheques during October 2010 in the
amounts of R50 0000, R50 000 and R170 000 were made out to a certain
J M Mangena
or bearer.
4
It is common cause that these cheques were cashed.
[19]
In my view the plaintiff did not prove
its case. If the plaintiff wanted to claim on the basis of fraud or
theft, it had to take
cession of the claim from Tshwane Metro.
[20]
As regards the counterclaim of R199 678
the defendant did not prove that he is entitled to the money - see
par 18 above. Furthermore
some of the recoveries were not from his
trust account but from third parties.
[21]
This judgment will be referred to the
Law Society of the Northern Provinces for their urgent attention.
[22]
I therefore made the following orders:
1.
The plaintiffs claim is dismissed with
costs.
2.
The counterclaim is dismissed with
costs.
A
A LOUW
JUDGE
OF THE HIGH COURT
1
See
ABSA Bank Ltd v Leech
2001 (4) SA 132
(SCA)
2
Rahim
v Minister of Justice
1964 (4)
SA 630
(A) at 634
3
see ' B34'37"
4
Exhibit
:'B83.84 and 85”