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[2013] ZAGPPHC 314
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Tilly and Another v Nedbank Group Ltd (20975/2012) [2013] ZAGPPHC 314 (30 October 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 20975/2012
DATE:30/10/2013
In
the matter between:
MOHAMMED
ISMAIL
TILLY.
.......................................................
First
Plaintiff
MOHAMED
AMIN
TILLY
.........................................................
Second
Plaintiff
and
NEDBANK
GROUP
LIMITED
........................................................
Defendant
JUDGMENT
Tuchten
J:
1.The
plaintiffs live in Ermelo. So did their late brother Mohamed Essop
Tilly, who died on 5 May 2009. To distinguish between the
three
brothers Tilley, I shall refer to them, as was done during the trial,
without any disrespect intended, as Essop, Boetie (the
first
plaintiff) and Amin (the second plaintiff) respectively. Boetie was
born in 1937 and is thus 76. Amin was born in 1933 and
is thus 80.
2.
The three brothers Tilley each had a business in Ermelo. They
prospered. They made enough money to invest in property, which
on the
evidence before me, they held in common. The brothers Tilly are
senior members of an extensive family with its own traditions
and
customs, which are informed by their Islamic faith.
3.
But they lived in a community which was by and large not steeped in
the same traditions and did not adhere to the Islamic faith.
So in
their commercial dealings with third parties outside the family, they
operated through institutions known to the common law
of the land.
Thus, despite the fact that their property holdings were as between
the brothers Tilly held in common, specific properties
were held by
trusts,
1
companies and such like. Mr Boetie Tilly made mention in evidence of
the Mohammed Ismail Trust, the Tilly Trust, the Zakpark Trust
and E
Paynter Investments. The property was both commercial and residential
and was operated as a letting enterprise, with some
160 tenants.
South
African common law trusts, not Islamic trusts such as the wakif.
4.
The late Mr Essop Tilley died, leaving a son, Rashid,
2
and a daughter. According to Mr Boetie Tiliy, after the death of his
father Essop, Rashid worked for his uncles but I suspect that
to be
an oversimplification. Be that as it may, the plaintiffs and Rashid
agreed that Rashid would receive the money from the letting
enterprise that formerly went to the late Essop and that Rashid would
take care of his sister out of his share of this money.
5.
During or about September 2009, Boetie, Amin and Rashid Tilly decided
to open a new bank account to be used for the upkeep of
the
properties within the leasing enterprise. Rashid and the current
manager of the defendant’s Ermelo branch had known each
other
for many years. It was decided between the three that the new account
would therefore be opened at Nedbank in Ermelo.
6.
For this purpose, Boetie, Amin and Rashid Tilley went to Nedbank
Ermelo on 9 September 2009. There they met Ms Theresa Roux,
who was
then manager: small businesses. Boetie Tilly said in evidence that it
was explained to Ms Roux why the account was to be
opened and that
the account was to be in the joint names of the three Messrs Tilly.
His
given name according to his identity document was Rased
7.
But Nedbank has separate sets of forms for opening accounts for
single individuals and for several individuals jointly. (I shall
call
the latter partnership accounts although of course such accounts are
not necessarily partnership accounts in the strict legal
sense). Ms
Roux says that although Boetie and Amin Tilly were present at the
meeting on 9 September 2009, she talked only to Rashid,
who told her
that he wanted to open an account in his name, called Rashid Tilly,
trading as A.R.M. upon which Rashid and each of
the plaintiffs was to
operate as a signatory and that signatures of any two of the three
Tillys would be required for any transaction.
8.
Ms Roux explained that procedure at Nedbank required, before a
partnership account be opened, that the bank be provided with
a
partnership agreement or at least a minute reflecting the wish of the
several individual prospective account holders to open
a partnership
account. She was adamant that she was not asked to open a partnership
account and it is common cause that no such
partnership agreement or
minute signed by the individual prospective account holders was given
to the bank.
9.
Ms Roux proceeded to implement the request as she understood it and
generated a set of forms through her computer. The Nedbank
officer
has no discretion in relation to these forms. The set of forms
generated by the computer is determined by the computer
command to
open a specific kind of account: eg individual or partnership. The
set of forms generated by Ms Roux was for an individual
account.
10.
I shall describe these forms and the way they were completed in the
order in which they appear in the bundle of documents discovered
by
the defendant, exhibit B before me. The first is headed “Business
account - signature card”. In the space provided
for the name
of the account, Ms Roux filled in the name of Rashid: “RA
Tilly”. In the spaces for the names and capacities
of the
signatories, she filled in the names of Amin, Rashid and Boetie
Tilly, Each of them signed against his name. No mention
was made on
this page of the capacities of the several signatories.
11.
The next page, after reference to the branch, contained the
following:
Ons
sertifiseer dat, ingevolge ‘n besluit wat geneem is op ‘n
behoorlik aangestelde vergadering van die
trustees/direkteure/vennote/lede/eksekuteurs/komitee
van
Ons,
die ondergetekendes, hiermee bevestig dat die
volgende
tekemagtigings ten opsigte.....................................
(Meld
lopende, spaar, deposito ens)
Rekening
nommer ............. vanaf ................ van krag sal wees.
…
............................................................................
(Meld
naam van trust/maatskappy/beslote
korporasie/vennootskap/boedel/organisasie)
12.
The section at the foot of this form designed for completion by the
customer then makes provision for signatures and capacities.
In that
section, Ms Roux filled in two instances of the capacity of
“Gevolmagtigde” against which she sought the signatures
of Amin and Boetie Tilly respectively. She created a field reflecting
the capacity of “Eienaar” against which she sought
the
signature of Rashid Tilly. Each of them signed where designated.
Boetie Tilly testified that the designations correctly reflected
the
position they sought to achieve.
13.
The next form is headed “Aims and needs analysis for client in
respect of long term deposits (individuals)”. This
form is
designed to meet the requirements of the legislation dealing with the
duties of financial services providers. In the section
named “Summary
of advice”, Ms Roux wrote, inter alia:
Klient
het bestaande rekening en open net ‘n addisionele rekening vir
homself, vir eiendomshuur wat inbetaal word.
14.
There follows a two page form headed “Application for a
transactional current account”. This form was completed
by Ms
Roux and reflects the prospective account holder as “Rased
Tilly”, the name appearing on Rashid’s identity
document.
Her evidence was that Rashid signed this form in her presence. Boetie
Tilly disputed in evidence that the signature on
this form was that
of Rashid. I shall deal with this dispute later.
15.
The form “Application for a transactional current account”
was accompanied by a nine page set of “Terms and
conditions of
transactional current account" which, Ms Roux said, was
initialled on each page by Rashid and signed by him
at the end.
16.
All the bank documents were, according to Ms Roux, completed in the
normal course on a single occasion on 9 September 2009.
She took
copies of the photograph page from the identity book of each of the
signatories, had them certified as true copies and
passed the whole
set of documents along for further processing to a different section
within the Ermelo branch of the bank. The
account was in due course
opened under no. 151 613 1460 and operated as contemplated.
17.
In 2011, tragedy struck the Tilley family. Rashid contracted an
infection. His teg had to be amputated. In September 2011 he
was
admitted to the intensive care unit at Benoni Hospital. Three months
or so later he was transferred to the ICU at Waterfall
Park Hospital
in Midrand. Rashid died there on 5 March 2012.
18.
On 1 February 2012, the balance in the account stood at R1 112
513,70. On Monday 6 February 2012, there was a transfer of R20
000
out of the account into the personal account of a Mrs Govender, an
official at the Ermelo branch of Nedbank. Mrs Govender is
the sister
of the Rashid’s widow, Sumaiya Tilly. The evidence before me is
that Nedbank later established that this transfer
had been effected
fraudulently by Mrs Govender. Nedbank then reversed the entry and
credited the account with the R20 000 withdrawn
by Mrs Govender. I
suspect that there is more to this transaction than has been
disclosed in the evidence before me.
19.
On the following day, Tuesday 7 February 2012, the sum of R350 000
was withdrawn from the account and placed to the credit of
Rashid’s
Tilly’s private credit card account. The same sum was then
immediately withdrawn, R150 000 being transferred
out of Rashid
Tilly’s credit card account and deposited into the account of
Rashid Tilly’s son-in-law (the husband
of Rashid Tilly’s
daughter) and the rest, R200 000, being withdrawn in cash.
20.
The instruction to the defendant to effect the transfer out of the
account was effected by a Nedbank form titled “Request
for
electronic transfer”. It purported to be signed by Rashid and
Boetie Tilly, thereby apparently meeting the requirement
that two of
the three authorised signatories authorise the transaction. But the
evidence shows that neither signature was effected
by the person
concerned. In this regard I have the comprehensive evidence of a well
qualified expert in questioned documents, Mr
Greenfield, and Boetie
Tilly himself. Their evidence in this regard was not contradicted.
21.
The signature of Mr Boetie Tilly was an outright forgery in the sense
that it was signed on the request for electronic transfer
form by
someone other than and without the permission or knowledge of Mr
Boetie Tilly. But the position in regard to the purported
signature
of Mr Rashid Tilly is less clear cut.
22.
The evidence of Ms Anel van Rensburg, currently the manager of the
bank’s Ermelo branch, is that a week or two before
7 February
2012, Rashid Tilly telephoned Ms van Rensburg from the hospital. He
told Ms van Rensburg that he was sending his daughter,
Sharmina, to
her and that Ms van Rensburg must help Sharmina. On Saturday 4
February 2012, Sharmina came to the Ermelo branch of
Nedbank with the
chequebook for the account. Sharmina herself signed and presented a
cheque but the bank could not negotiate it
because it had not been
signed as per the mandate to the bank, ie by two of the three
authorised signatories.
23.
Ms van Rensburg supplied Sharmina with certain bank forms, including
a blank request for electronic transfer form. On Tuesday
7 February
2012, Sharmina returned to the bank with the signed form. Ms van
Rensburg phoned the cellphone number given to her as
that of the son
of Rashid Tilly. Ms van Rensburg inferred that the cellphone must
have been handed to Rashid in the ICU because
she spoke to Rashid
himself. Ms van Rensburg had known Rashid Tilly since she was a child
and recognised his voice, which she described
in evidence as weak but
intelligible. Ms van Rensburg was satisfied that Rashid had
authorised the transaction. The transfer was
effected.
24.
Mr Boetie Tilly said in evidence that he learnt of the R20 000
transfer by text message on 5 or 6 February 2012.
3
He went to the bank to investigate. He could not get clarity on how
the transaction had occurred and returned to the bank the following
day. He then learnt of the withdrawal of an additional R350 000 from
the account.
25.
Mr Boetie Tilly then made strenuous efforts to get the two
transactions reversed. As I have said, the R20 000 transaction was
indeed reversed but the bank declined to reverse the R350 000
transaction. The bank officials told Mr Boetie Tilly that as he was
not the account holder, the bank would not entertain his request and
said he should stop talking to bank officials about the matter.
Finally Messrs Amin and Boetie Tilly consulted their attorney.
26.
The plaintiffs sued the bank in contract with an alternative cause of
action in delict. I need not analyse the pleadings because
counsel
for the plaintiffs made his case on the proposition that he had
established, on a balance of probabilities and against
the
defendant’s denial, that the plaintiffs were joint account
holders with Rashid Tilly.
If
that were not established, counsel accepted, the plaintiffs could not
succeed.
27.
The basis for the claim was that the transfer of R350 000 had been
unauthorised in the sense that the signatures of two of the
three
authorised signatories did not appear on the request for electronic
transfer form. In my view, whatever the position was
between Rashid
Tilly and the person who signed Rashid Tilly’s signature on the
form, the plaintiffs have proved that the
transaction was
unauthorised. This is because the signature on the form purporting to
be that of Mr Boetie Tilly was in fact not
his signature and was
signed on the form without Mr Boetie Tilly’s authority. So the
form was not signed by two authorised
signatories.
28.
I accordingly turn to the crucial dispute in the case: whether or not
the account was opened by the plaintiffs together with
Mr Rashid
Tilly. I have before me two irreconcilable versions. The plaintiffs
say there was an oral agreement to open a partnership
account. The
defendant says that Rashid Tilly applied in writing to open an
individual account and that the defendant accepted
Rashid Tilly’s
written application.
29.
Where, as here, there are irreconcilable versions, I must apply the
law as laid down in Stellenbosch Farmers' Winery Group Ltd
and
Another v Martell Et Cie and Others
2003 1 SA 11
SCA para 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.
30.
I bear in mind that the plaintiffs and Rashid Tilly intended the
creation on 9 September 2009 of two distinct, albeit related,
legal
relationships: firstly, the contract between themselves under which
they would be jointly entitled to operate the account
and enjoy the
benefits of the money deposited into it from time to time, which I
shall call the family agreement; secondly the
contract with their
banker, which I shall call the banking agreement. I have referred to
the nuances and complexities within the
plaintiffs’ family
arrangements in relation to commercial matters. I think the
probabilities are affected by the clear purpose
of the plaintiffs and
Rashid Tilly: to avoid, in their dealings with their banker, those
very nuances and complexities. That is
why, as I see it, they
proposed or acquiesced in the arrangements requested by Rashid Tilly
that he, Rashid, be treated by the
defendant as the account holder.
31.
I think it probable that at the meeting with Ms Roux on 9 September
2009, there was reference to the family agreement. That
was why, in
my view, the name of the account on the bank statements was RA Tilly,
trading as A.R.M. In normal South African commercial
custom, when an
individual indicates that he trades under a trading name, his purpose
is to tell the world that the business operated
under that trading
name belongs to him alone. In this case, I think, the trading name
A.R.M. was intended to operate as a signal
to the parties to the
family contract that although the account was ostensibly held by
Rashid Tilly alone, in fact, as between
themselves it was a joint
account. But the trading name, I emphasise, was a signal to the
parties to the family contract, not to
the bank.
32.
And I think that the reason for the inability of Ms Roux to recall
that there had been any discussion of the family agreement
was that
she, correctly, regarded it as none of the bank’s business.
Equally, it was generally none of the bank’s business
who the
owner of the account chose to designate as signatories and what the
arrangements were between such signatories except only
in so far as
such arrangements identified the circumstances in which the bank
would pay money out of the account.
33.
It is true, as counsel for the plaintiffs submitted, that some of the
printed wording on the form from which I quoted in paragraph
11 above
supports the plaintiffs’ version. But on the same form, Rashid
is identified in handwriting as the owner of the
account and Boetie
and Amin as persons who, while not being the owner of the account,
were authorised to operate it.
34.
I had the benefit of observing Mr Boetie Tilly in the witness box.
This soft spoken gentleman is possessed of substantial commercial
acumen. Although he is the younger of the two, Amin defers to his
commercial judgments.
4
My impression is that Mr Boetie Tilly has confidence in his own
commercial judgment. When he found out that, as he saw it, Nedbank
had treated him and his brother wrongly, he doggedly attended at the
bank time after time to try to persuade the bank officials
of the
justice of his case and to get them to reverse the entry for R350
000.
35.
If the intention of the three Messrs Tilly had been to open a
partnership account, when Mr Boetie Tilly saw, as he said in evidence
he did, that Rashid had been described on the form I discuss in
paragraph 33 as the “eienaar” of the account and Boetie
and Amin as mere “gevolmagtigdes”, this astute, strong
willed man would not have left it at that. He would have raised
a
polite objection and ensured that what on his version was a mistake
was immediately corrected. That he did not raise any objection
is to
my mind a strong pointer in favour of the defendant’s case.
36.
And then, too, an experienced bank official in the person of Ms Roux
was performing a routine function, one which was well
within her area
of competence. She was hardly likely to use the wrong forms. The form
headed application to open a transactional
current account was one of
the suite of forms generated by her command to the computer to
generate the forms for an individual
account. As between the bank and
himself, Rashid Tilly needed the new account for his own business, as
recorded by Ms Roux on one
of the forms as having been told to her by
Rashid.
5
37.
I proceed to evaluate the dispute raised by Mr Boetie Tilly’s
evidence that the signature on this form is not that of
Rashid Tilly
and that no such form was completed on the day in question, or at
least in his presence.
38.
Firstly, on this issue, Boetie Tilly’s evidence that the
signature was not that of Rashid is not corroborated by Mr
Greenfield.
Secondly, a form like this one had to be completed:
otherwise the officials down the line from Ms Roux would not have
processed
the paperwork further and the account would not have been
opened. But we know that the account was opened so such a form must
have
been completed.
39.
If Boetie Tilly’s evidence had been correct, then there would
have had to be a form similar to the form before the court
signed by
all three Tillys. But there was no suggestion that such a form had
been so completed and signed. And the proposition
that there had been
an equivalent form which would have advanced the plaintiffs’
case which was removed from the bank’s
records and substituted
by the form in fact before the court has merely to be advanced to be
rejected.
40.
I therefore find, on a strong preponderance of probability, that the
account was indeed opened by Rashid Tilly alone and was
not opened by
the plaintiffs and Rashid Tilly jointly. I hold that the parties to
the banking agreement were Rashid Tilly and the
defendant. The
plaintiffs’ claims must therefore fail. Costs were not
addressed in argument. This is, as between the plaintiffs
and the
defendant, a commercial case where costs generally follow the result.
There is no reason in this case, to my mind, to depart
from that
principle.
41.
As there is a family dimension to this case, I propose to give my
provisional views on the underlying probabilities in that
regard. I
say provisional because I have not heard the evidence of the
immediate family of Rashid Tilly or the ICU nursing staff
who
attended to him during January and February 2012.
42.
It seems to me likely that as Rashid neared the end of his life, he
became concerned that his immediate family might be left
without a
cash fund with which to meet necessary expenses; and that he feared
that his uncles might in this regard not be as generous
as he,
Rashid, thought appropriate. He knew roughly how much there was in
the account and decided, without consulting his uncles,
to take what
he regarded as his one third out of the account while he still had
the power to do so. R350 000 is roughly one third
of the amount
standing to the credit of the account on 6 February 2012.
43.
I think, subject to what I have said in paragraph 40, that Rashid
gave his immediate family certain instructions but that he,
Rashid,
lacked the physical strength to sign the request for electronic
transfer form. So, on this analysis, it was signed for
him by one of
the members of his immediate family. And then, to complete the
transaction, the signature of Boetie Tilly was forged
on the form.
44.
If I am correct in this analysis, the immediate family of Rashid
Tilly owe Mr Boetie and, for that matter also Mr Amin Tilly,
an
apology. It was wrong to forge their Uncle Boetie’s signature
no matter how pressing their needs and how much they wanted
to fulfil
the wish of their dying husband and father.
45.
It may therefore be (I put it no higher) that the correct course for
the plaintiffs to follow would be to approach the executor
of the
estate of the late Rashid Tilly on the basis that the deceased has
taken his third of the money in the account and most
of the balance
belongs to them.
46.
I make the following order:
The
plaintiffs’ claims are dismissed with costs.
NB
Tuchten
Judge
of the High Court 28 October 2013
TillyNedbank20975
12
1
South African common law trusts, not Islamic trusts such as the
wakif.
2
His given name according to his identity document was Rased
3
A dispute developed late in the trial in relation to this text
message. The suggestion was that Boetie Tilly's cellphone number
was
not registered with the bank for the notification of transactions on
the account. None of this was put to Boetie Tilly and
it was not
disputed that Boetie Tilly reacted, when he learnt of the
transaction, in the manner which I shall proceed to relate
so little
turns on this.
4
It is significant in this context that Amin did not say a word at
the meeting of 9 September 2009.
5
See paragraph 13 above.