SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no.: 9121/2023
In the matter between:
JAMES ROBERT TAYLOR TURNER N.O.
(in his capacity as the Executor of Estate Late C.P. Arnot) Applicant
and
THE STANDARD BANK OF SOUTH AFRICA LIMITED First r espondent
THE MASTER OF THE HIGH COURT CAPE TOWN Second respondent
JUDGMENT ELECTRONICALLY DELIVERED ON 3 APRIL 2025
MANGCU -LOCKWOOD, J
A. INTRODUCTION
[1] The applicant, as executor of the estate of the late Constance Pamela
Catherine Arnot seeks declaratory orders that : firstly, the first respondent’s
(“Standard Bank” or “the Bank” ) purported closure of the deceased’s two bank
account s and its distribution of the amounts standing to the credit of the accounts be
declared unlawful; and secondly, that the Bank be declared liable to the applicant for
the amounts which stood to the credit of the deceased at the time of her death, with
interest accrued thereafter . The applicant also seeks an order directing the Bank to
pay the amounts held in the bank accounts to him. In the alternative to all the above ,
and in any event, the applicant seeks delivery of a range of specified documents.
[2] The late Mrs Arnot ( “the deceased” ) died on 1 August 2021, and her estate
was reported to and lies in the hands of the second respondent ( “the Master” ) in
accordance with the provisions of the Administration of Estates Act, 66 of 1965 ( “the
Act”). In terms of the deceased’s last will and testament dated 16 November 2013
(“the Will”), the applicant, who was the deceased’s son in law, was nominated as
executor.
[3] At the time of her death, the deceased held two accounts with Standard Bank,
namely a current account, number 2[...], containing an amount of R38,815.76, and a
money market account, number 1[...], containing R2,152,850.48 million , with a
combined t otal credit amount of R2,191,666.24 .
[4] To begin at the end of the story, the Bank paid the monies into the account of
one Johan Botha who is not the nominated executor in terms of the Will , and who is
unknown to the applicant.
B. THE CHRONOLOGY
[5] On 21 Septe mber 2021 t he applicant’s attorneys reported the estate to the
Master, attaching the Will, together with deceased’s death certificate, the death
notice and the Acceptance of Trust as Executor, and also requested the Maste r to
issue letters of executorship to the applicant. After some delays, including complaints
by the applicant’s attorneys, the Master eventually issued letters of executorship to
the applicant a year later, on 2 September 2022.
[6] In the meantime, the Master had also issued letters of executorship in the
same estate to one Johan Botha on 17 February 2022, although the letters could not
be located on the date on which the Master delivered this news to the applicant’s
attorneys on 15 August 2022. At the time, t he applicant was still awaiting issue of his
letters of executorship, as the duly nominated executor in terms of the Will. The
Master was constrained to issue fresh letters of executorship to the applicant on 2
September 2022.
[7] According t o Standard Bank , on 11 March 2022, Botha contacted Standard
Bank ’s deceased estate department via email , stating that he was the executor of
the estate . Ms Cindy Camp, a Standard Bank Administration Officer: Deceased
Estates, requested certified copies of the death cert ificate, the deceased’s and
Botha’s identity documents, letters of executorship and proof of the estate late
account.
[8] On 14 March 2022 Botha attached some documents to an email addressed to
Ms Camp, which appeared to be l etters of executorship issued by the Master , a copy
of his identity document , and a copy of the identity document of the deceased. On 15
March 2022 the documents supplied by Botha were rejected on account of not being
certified.
[9] On 17 March 2022 Botha again submitted documents via e-mail. Again , the
documents were rejected with Ms Camp requesting clear certified documents. On 24
March 2022 Botha emailed a further set of documents , which appeared to be
certified copies of a letter of executorship, the identity document of the d eceased and
an identity document of Johan Botha. The Bank states that Botha also produced a
copy of the deceased’s will in which he is named the executor , which is attached to
the answering affidavit . The will attached by Botha represents, by means of stam ps,
that it was accepted and registered in the Master’s office on 28 September 2021 and
is ‘certified a true copy of the original document ’ by the Master’s office.
[10] On 5 April 2022, Ms Camp transferred the credit balances which stood to the
deceased’s curr ent and money market accounts to an account which was opened by
Botha on 3 March 2022 . Between 5 April 2022 and 13 April 2022, all the funds were
transferred out of the accounts linked to Johan Botha and one Katherine Smuts, and
by 13 April 2022 , reflected zero balances.
[11] The facts set out above regarding the events between March 2022 and
August 2022 appear from the answering affidavit of Standard Bank. On 18 August
2022 the applicant’s attorney contacted Standard Bank record ing her interactions
with the Master’s office , including her discovery that the letters of executorship were
dated 17 February 2022 and authorised Botha instead of the applicant.
[12] From the moment the applicant’s attorney co ntacted the Bank, she requested
information regarding who the money was paid out to , and on presentation of what
documents. Several emails ensued between various employees of Standard Bank
and the applicant’s attorney, with the different employees requesting information and
documentation related to the decease d’s estate . Eventually, on 24 August 2022 Ms
Roodman of Standard Bank notified the applicant’s attorney that she c ould not
release the requested documentation or information without an official letter from the
Master’s office because the Master’s portal was still indicating that Johan Botha was
the executor of the estate.
[13] More communication ensued between the applicant’s atto rneys and various
staff members of Standard Bank, with the former requesting access to documents
justify ing the distribution of the money to Johan Botha, and the latter effectively
declining to disclose such documents, on the basis that it was third party information.
[14] It was on 7 September 2022 that the Bank informed the applicant’s attorneys
that the two bank accounts had been closed on 5 April 2022 , and the funds
transferred to Johan Botha. Despite repeated requests, little further information was
forthcoming from Standard Bank. Pointedly, no documents were provided to the
applicant which were provided to the Bank by Both a for closure of the accounts and
transfer of the funds to him , and that remains the position to date .
[15] On 13 October 2022 the applicant demanded payment into the estate account
of the funds which had stood to the credit of the deceased ’s accounts . Standard
Bank refu sed on the basis that it had already made payment into the account of
Johan Botha , and informed the applicant to liaise with Botha for the funds .
C. THE FURTHER AFFIDAVIT
[16] A week before the hearing of the matter which was set down on 3 February
2025, the Bank applied for admission of a further affidavit, and alternatively , the
striking out of those paragraphs of the replying affidavit which allege negligence on
its part , name ly paragraphs 8.2.1 - 8.2.5, 15, 16 and 32 . Both applications are
opposed by the applicant.
[17] The further affidavit explains that it was on 13 January 2025 that Standard
Bank’s counsel requested a consultation with her clients for purposes of drafting the
heads of argument. At that consultation, which was held on 21 January 2025,
questions arose emanat ing from the applicant’s heads of argument which had been
delivered by then . Eventually, and it is not clear when exactly, a consultation was
held with the bus iness banker who also deals with estate late accounts, Mr
Simphiwo Mbande.
[18] It is then stated that the purpose of the further affidavit is to explain how the
estate late account was opened by Johan Botha, an issue which was not properly
addressed in the an swering affidavit because , according to the deponent , the
founding affidavit centered on Johan Botha’s lack of authority to act as executor, the
closing of the deceased account and the transfer of the funds from the deceased
account to the estate late acco unt. By contrast, it is said the applicant relies on an
entirely new case in reply , claiming that Standard Bank was negligent in failing to
follow proper procedure and was complicit in, not only closing the accounts of the
deceased but also in opening the estate late account. The Bank also states that the
late delivery of th e further affidavit is not mala fide or wilful or prejudicial to the
applicant and is aimed at ensuring the proper ventilation of the dispute between the
parties.
[19] The new information supplied in the further affidavit is that Johan Botha
attended at the Bank’s Brackenfell branch to open an estate late account on 18
February 2022, where he presented “the ori ginal letters of executorship and the
death certificate, a copy of the deceased's identity document and his identity
document, and original proof of residence in the form of a lease agreement” .
According to the deponent, copies of these documents were mad e and verified in
terms of “ Standard Bank’s processes at the time as well as the prevailing legislation,
including FICA” . On 1 March 2022 Johan Botha again attended at the Brackenfell
branch to complete the requisite forms for opening the estate late accou nt, which
was so opened on 3 March 2022. The remainder of the further affidavit relies on
what is stated in the answering affidavit concerning the events that took place from
11 March 2022 , and upon the documents annexed to the answering affidavit .
[20] On the basis of the averments made in the further affidavit , the Bank submits
that in opening the estate late account and transferring the funds from the
deceased’s accounts into the estate la te account, proper procedures and
verifications were followed, and the Bank acted with due diligence and was in no way
negligent.
[21] In order to understand the basis for the applicant’s opposi tion to the further
affidavit, it is necessary to have regard to the history of the pleadings . At paragraph 3
of the notice of motion , the applicant seeks an order directing the Bank to furnish a
full and detailed account, duly supported by vouchers, documents, instructions,
mandates, account opening forms and other documents. The basis for this relief is
set out in the founding affidav it by way of the chronology of events, which is not
disputed, in which the applicant sought, and continues to seek, documents justifying
the Bank’s closure of the two bank accounts and its transfer of the funds to John
Botha. The Bank consistently deflecte d those requests, and even in the answering
affidavit relies on the contents of the Protection of Private Information Act (POPI
Act), stating that the information sought pertains to a third party.
[22] In the answering affidavit the Bank, set out the chronology which was brought
to light by its internal investigations, and attaches documents that were furnished to it
by Johan Botha in its interactions with him between 11 March 2022 and 24 March
2022 . It was confirmed during the proceedings by counsel that this was the first time
these documents were made available to the applicant. On the basis of these
documents , the Bank argued that it was entitled to close the accounts and transfer
the funds to Johan Botha because he provided the requisite documents requested of
him.
[23] It was as a result of the disclosure of the attached documents to the
answering affidavit that the applicant conducted an analysis in its replying affidavit , to
demonstrate what it allege d was a failure by the Bank to notice inconsistencies,
deficiencies and abnormalities in the emails and documents emanating from Johan
Botha . The applicant states that the documents indicated a raised risk of fraud, as
well as Standard Bank’s failure to fo llow necessary verification procedures as well as
its own publicly -stated requirements and security processes. Further, that the Bank
was extraordinar ily negligen t, and its employees so grossly negligent as to appear
complicit. In addition , that the Bank h ad no rational or reasonable basis to be
satisfied by the documents supplied by Botha to close the two bank accounts, and to
transfer the funds to the account nominated by Johan Botha.
[24] At the same time, the applicant makes clear in the reply ing affidavit that its
main case does not rely on negligence or wrongdoing on the part of Standard Bank.
His main case rests squarely on his entitlement , as legal successor to the deceased
accountholder , to receive pa yment of the deceased ’s claim in respect of credit
balances held on her bank accounts. To the extent that any disputes o f fact may
arise with regards to the negligence of Standard Bank, the applicant states that such
dispute s are not determinative of the m atter since that is not its primary case.
[25] Reverting to the applicant’s opposition to the admission of the further affidavit ,
the first basis concerns its timing. Whilst the replying affidavit was served upon the
Bank’s attorneys on 5 December 2023 , it was only o n 27 January 2025, the week
before the matter was set down , that t he Bank delivered its application .
[26] I am in agreement that, in light of the timeframes involved in this matter,
Standard Bank has woefully failed to provide an explanation for its somnambulance
with regards to the filing of t his further affidavit. As I have already mentioned, the
reasons given for the delay and for the delivery of the further affidavit are diffuse .
Whilst the deponent states that th e need for the affidavit arose in th e context of
preparing the heads of argument - though th is in itself not explain ed - it is also stated
in the same breath, that the need arose from issues raised by the applicant’s heads
of argument. It is never explaine d why all of this occurred in January 2025 in the
week before the hearing of the matte r, instead of December 2023 upon receipt of the
replying affidavit.
[27] Another reason given for the filing of the affidavit is that t here arose a need to
consult with the business banker who deals with the opening of the estate late
account s. There is no explanation given for why this was not done for purposes of
the answering affidavit given that the matter concerns such an account, and given
that, by the time the answering affidavit was delivered, according to the Bank it had
already conducted internal investigations. It is not unreasonable to conclude that
such investigations would have, and should have , included the contributions of the
estate late accounts banke r.
[28] The late delivery of this affidavit is very serious when seen in the light of the
fact that the main application was launched on 6 June 2023, citing amongst other
things , Standard Bank’s refusal to disclose documents and information regarding its
disbursem ent of funds out of the deceased’s accounts to Johan Botha , as well as its
failure to act reasonably or to take proper precautions before making such payments.
The Bank’s refusal to provide the requested documents to the applicant is well -
documented in the founding papers, forming the subject of the prayer contained at
paragraph 3 of the notice of motion. For the Bank to not have anticipated that the
applicant would respond to documents made available for the first time in the
answering affidavit, was not o nly unlikely, but was to its own peril.
[29] As I have already indicated, in the replying affidavit the applicant analyzed
these documents, setting out the Bank's negligence in failing to observe
inconsistencies, inaccuracies, and in failing to follow its own security and verification
processes. This was in response to the documents supplied by the Bank for the first
time in the answering affidavit. It is that analysis that the Bank now wishes to
respond to by means of a further affidavit , or to have struck out . This makes it clear
that the Bank the clear purpose of the further affidavit is to try and relieve the pinch
of the shoe , as argued by the applicant .
[30] Regrettably, the application is even more self-serving than that. Whilst the
further affidavit seeks t o introduce further documents regarding interactions with
Botha between 18 February and 11 March 2022 , it also makes clear that the Bank
continues to withhold some of the documents and information sought by the
applicant , especially regarding Botha . As a result, the applicant seeks an order that,
if the further affidavit is admitted, the Bank should be ordered to disclose the certain
specified documents. I asked Ms Long who represent s the Bank about this demand
from the applicant , and no willingness w as forthcoming from the Bank regarding the
provi sion of any further the documents , on the basis of the alleged confidentiality
based on POPI.
[31] This means that, if this Court were inclined to admit the further affidavit, it
would unnecessarily prolong the se proceedings , with firstly a postponement to grant
an opportunity to the applicant to properly respond to the further affidavit, which is a
reque st he made in the short answering affidavit that was prepared in undue haste
due to the late hour of the delivery of the further affidavit. There is also a likelihood of
further legal proceedings in which the applicant will continue to seek further
documen ts, wh ose disclosure the Bank continues to refuse . This, in circumstances
where the relief relating to the disclosure of the further documents is only sought in
the alternative to the main relief in paragraphs 1 and 2 of the notice of motion. The
considera tions of the proper and prompt administration of justice militate against
such extended proceedings , which are more than a probability given both parties’
stance on the issue.
[32] It is self -evident that the timing of delivery of this affidavit is prejudicial to the
applicant, not least because of the severe delay. But given the circumstances of not
furnishing information requested for some years, and then selectively seeking an
indulgence in that regard at the last minute, whilst still withholding some of the
information requested, I consider the request to file the further affidavit to be mala
fide.
[33] In any event, the new evidence that is sought to be introduced raises more
questions than answers. I t is alleg ed that Johan Botha provided documents,
including s ome originals, when he first visited the Brackenfell Branch on 18 February
2022, which were copied and verified in terms of “ Standard Bank’s processes at the
time as well as the prevailing legislation, including FICA” .
[34] Why then was it necessary to request these documents again between 14
and 24 March 2022 by Ms Camp? And why did she reject them twice after Johan
Botha e -mailed them to her, on the basis that they were not certified ? This suggests ,
as the applicant states , that Standard Bank never had original or certified copies of
the originals of any of these documents. Even after this last criticism was levelled
against it in the replying affidavit, t he Bank has not cured it by producing such
documents with its further affidavit. Instead, it relies on the documents already
attached to the answering affidavit.
[35] Furthermore, a s the applicant points out, the further affidavit is replete with
hearsay evidence , which is presented via Mr Mpande who did not himself deal with
Johan Botha, and does not purport to have been based at the Brackenfell branch on
the days in question. The same observation may be made with regard to the
averments made by the main deponent, Ms Wall, who claims enigmatically and
without any proof, that th e documents supplied by Botha in February 2022 included
original documents. As a result, the probity of the averments is not established , and
the averments made in the further affidavit do not add much contribution by way of
evidence.
[36] Having considered t he contents of the affidavit, it is apparent that there were
no material events that occurred after the exchange of the normal three sets of
affidavits which justify delivery of the further affidavit. Rather, the Bank belatedly
wants to ‘plug the holes’ re sulting from its obstructive conduct of refusing to disclose
information, which led the applicant to approach this Court in the first place . As was
famously stated over a century ago, although in a different context, t he
administration of justice is not a game.1 Furthermore, the explanation furnished for
delivery of the further affidavit is very poor . The application to introduce the further
affidavit and the striking out application must accordingly be dismissed , with c osts.
1 Whittaker v Roos and Another; Morant v Roos and Another 1911 TPD 1092 at 1102 - 1103.
D. THE LAW
[37] The relation between banker and client is based on contract. It involves a
debtor and creditor relationship in terms of which the banker becomes owner of
money deposited on the client's account subject to its obligation to its client to pay
cheques drawn on it.2
[38] Inasmuch as the client instructs the bank to render certain banking services
when required, and the bank agrees to carry out such instructions,
their consensus must needs emanate from a contract of mandate, in terms of which
the client is the mandator and the bank the mandatary.3
[39] In Malan on Bills of Exchange, Cheques and Promissory Notes in South
African Law4 this relationship was described as follows :
“[I]n essence the contract between bank and customer obliges the bank to render
certain services, the so -called services de caisse , to the customer on his instructions
and for this reason it can be classified as a contract of mandatum . The bank and
custome r relationship is based on a comprehensive mandate in terms of which the
customer lends money to the bank on current account, the bank undertakes to repay
it on demand by honouring cheques drawn on it and to perform certain other
services for the customer, such as the collection of cheques and other instruments,
and the keeping and accounting of his current account….”
[40] In Firstrand Bank Ltd v Spar Group Ltd5 the Supreme Court of Appeal (SCA)
stated it as a durable proposition of our law that -
“…when the customer of a bank deposits money into their account, the money
becomes the property of the bank. The bank enjoys a real right of ownership. In the
2 Joint Stock Co Varvarinskoye v Absa Bank Ltd And Others 2008 (4) SA 287 (SCA) para [37].
3 Di Giulio v First National Bank of South Africa Limited (A1080/2001) [2002] ZAWCHC 33; 2002 (6)
SA 281 (C) (19 June 2002) para [20].
4 Malan on Bills of Exchange, Cheques and Promissory Notes in South African Law (3rd ed by F R
Malan and J T Pretorius, 1997) par 203 (at p 334).
5 Firstrand Bank Ltd v Spar Group Ltd 2021 (5) SA 511 (SCA) para [37].
usual c ase, the deposit gives rise to a credit balance in the account of the customer
and a personal obligation owed by the bank to its customer to pay the credit balance,
together with interest, if agreed.”
[41] The personal obligation of the bank to pay the balance standing to the credit
of the customer may be discharged by, inter alia , payment to the customer or
payment to persons designated by the customer.6
[42] It is an incident of the contract between the bank and its customer that the
bank has an obligation to pay its customer , who enjoys a personal right to payment
from the bank, the credit balance arising from the deposit made .7 The nature of the
personal right against the bank was described as follows:
“… In the standard case, the customer deposits money into their account and has a
personal right against the bank to be paid the credit reflected on the account (with
interest, if agreed) or otherwise to direct the bank as to who should be paid. The
personal right is an incident of the contract that subsists between the customer and
the bank.”8
[43] The principal duty of the bank effecting a credit transfer is to perform its
mandate timeously, in good faith and without negligence ;9 or, as stated in Mccarthy
Ltd v Absa Bank Ltd10, “the bank must adhere strictly to the customer's instructions,
and must perform its duties with the required degree of care, generally, in good faith
and without negligence” .
[44] In a case from this Division , Liebenberg v Absa Bank Limited t/a Volkskas
Bank11 it was held as following :
“it is clear that the relationship between a banker and a client who operates a current
account is that of debtor and creditor. The bank becomes the owner of the money
6 Firstrand Bank Ltd v Spar Group Ltd para [39].
7 Ibid paras 41 & 55 .
8 Ibid para 56.
9 Absa Bank Ltd v Hanley 2014 (2) SA 448 (SCA) para [2 5].
10 Mccarthy Ltd v Absa Bank Ltd 2010 (2) SA 321 (SCA) para 22.
11 Liebenberg v Absa Bank Limited t/a Volkskas Bank [1998] 1 All SA 303 (C) at 309I – 310F.
and bec omes the debtor of its customer. If a bank pays a cheque with a signature
that has been forged, it is the bank, and not the customer who can sue the person to
whom the payment is made for the restitution of the amount for the money with
which the payment w as made with the money of the bank.” […]
the only sanction if the bank does not conform to the customer’s mandate is that it
cannot debit his account with the amount paid away. This is because the amount
paid is money which belongs to the bank, not to the customer, and so the customer
cannot sue the bank or the person to whom the payment is made for breach of
contract or wrongful conversion of the customer’s property .” (Emphasis original) […]
Accordingly the only claim which the plaintiff can have against t he Bank on the facts
pleaded is that his account should be rectified and that the plaintiff’s account should
be credited with the amount paid contrary to the mandate given to it.”
[45] In Holzman v Standard Bank12 it was accepted that “merely being careless in
controlling access to a cheque book does not render the customer liable to bear the
loss”; nor does a failure to verify bank statements per se lead to such liability. The
same principle was stated as follows in Big Dutchman (South Africa) (Pty) Ltd v
Barclays National Bank Ltd13:
“A customer's duty to his banker is a limited one. Save in respect of drawing
documents to be presented to the bank and in warning of known or suspected
forgeries he has no duty to the bank to supervise his employees, to run his business
carefully, or to detect frauds. ”
E. DISCUSSION
[46] At the heart of this matter is the responsibility of Standard Bank towards the
applicant . The law set out above makes it clear that the nature of the relationship
between them is contractual, as between debtor and creditor, and that the Bank may
not act outside the authority and mandate of its client or the latter’s mandated
representative.
12 Holzman v Standard Bank Ltd 1985 (1) SA 360 (W) at p24 .
13 Big Dutchman (South Africa) (Pty) Ltd v Barclays National Bank Ltd See 1979 (3) SA 267 (W) at
283A.
[47] There is no disput e that the applicant is a duly authorised representative of
the deceased ’s estate . In fact, it is admitted by the Bank that “there had ever only
been one executor nominative of the deceased’s will, namely [the applicant] . There
is also only one executor in respect of whom authentic letters of executorship were
granted or signed and sealed under the Act were validly issued by the Master ,
namely [the applicant] .”
[48] The Bank has also not disputed the averment made in the founding affidavit
that “Johan Botha is not nominated or referred to as an executor in the deceased’s
will, has never been entitled to appointment as Executor and has never been validly
appointed as such; that any documents which suggest otherwise are fabricated or
fraudule nt”.
[49] That should be the end of the case, since it is also common cause that the
funds were not transferred to the applicant and were instead paid to (an) account(s)
held by Johan Botha , contrary to the provisions of section 13(1) of the Act, which
provid es that “[n]o person shall liquidate or distribute the estate of any deceased
person, except under letters of executorship granted or signed and sealed under this
Act…or in pursuance of a direction by a Master”.
[50] Yet the Bank argues that it cannot be held liable for any alleged wrongdoing
on the part of Botha and/or the Master. It denies knowledge of any alleged fraud ,
and states that it acted on the bona fide belief that Botha was the executor of the
deceased estate . It denies that it knew that the a pplicant was the legitimate executor
of the deceased estate at the date of transfer of the funds and states that it acted
“upon Letters of Executorship duly issued by [the Master] to Botha” . In the answering
affidavit, the Bank also denies that Botha’s letters of executorship were falsified.
[51] Even without considering the Bank’s defences which are summarised
immediately above, the common cause facts already adverted to are sufficient to
found the applicant’s claim. The legal position traversed earlier makes clear that
Standard Bank cannot exonerate itself from its obligations to the applicant by
blaming the Master or Johan Botha who may have perpetrated fraud against it.
[52] It is no answer for th e Bank to say it was not aware at the time of its dealing
with Botha, that his documents were fraudulent and invalid . For purposes of
considering its liability towards the deceased’s estate, t he case law makes it clear
that the Bank, and not the applicant, is to be held liable for paying the wrong person.
This is because, once the funds were deposited into the deceased’s bank accounts,
the money became the property of the Bank. As a result, the money transferred to
Botha was the Bank’s money, not the money of the deceased’s estate. Only the
Bank can claim the funds back from Botha, not the applicant. This is why the Bank’s
response to the applicant to rather liaise with Botha regarding the funds, when the
latter demanded payment of the funds, was cynical to say the least. This, despite its
refusal to give any information regarding Botha .
[53] As legal successor to the deceased accountholder, the applicant remains
entitled to payment from Standard Bank of the deceased’s claim in respect of credit
balances held by the bank on her accounts.
[54] Turning to t he Bank’s defences, the y are full of contradictions. Whilst the Bank
admits that “there is also only one executor in respect of whom authentic letters of
executorship were granted or signed and sealed under the Act were validly issued by
the Master, namely [the applicant]” , it also a lleges that it acted on “duly issued”
letters of executorship. The two propositions are incompatible with each other, and
only one of them can be correct.
[55] There are several reasons for rejecting the Bank’s version that Johan Botha
presented duly issued letters of executorship to it. The first concerns Standard
Bank’s opaqueness regarding the details of Johan Botha, including whether he is or
was its client. To date, the Bank has yet to substantiate its stance , or to show that it
took any or adequate steps to ensure the probity of the transfers to Botha. Its refusal
to produce relevant documents and explanations in this regard justify a conclusion
that the Bank is not a position to give assurances that the letters of executorship
presented to it by Johan Botha were ‘duly issued ’.
[56] Another concern regarding the Ba nk’s contradiction relates to the problematic
documents submitted by Johan Both a, which cannot be construed as anything other
than fraudulent. They include a falsified copy of the Will. They also include copies of
allegedly certified copies of original doc uments - in other words, copies of copies.
There remain no indications that Botha ever submitted certified copies. As a result,
there is still no evidence that the Bank conducted proper verification of documents
when it opened Botha’s account.
[57] Moreover, i n contrast to the letters of executorship presented by Johan Botha
to the Bank, no irregularities have been raised by anyone – whether the Master or
the Bank - regarding the letters issued to the applicant. In fact, the fact that the
Master later issued a second letter of executorship to the applicant, with the
knowledge that a previous one had been issued with a different name, is in itself an
acknowledgment that the applicant was the correct and lawful party to be issued with
such letters. It is also not disputed that the copy of the true original Will of the
deceased was submitted to the Master’s office on behalf of the applicant, in terms of
which the applicant was nominated by the deceased as executor of her estate. So
too, all the necessary supporting documents were filed at the Master’s office o n
behalf of the applicant, in furtherance of his application for letters of executorship.
[58] I accordingly do not consider Standard bank’s version that Johan Botha
presented duly issued letters of executorship as creating a genuine, bona fide
dispute regard ing which of the two – Johan Botha or the applicant – held duly issued
letter of executorship. 14 The Bank’s version lacks credibility, plausibility and
tenability given its acceptance that the applicant is the only executor named in the
Will, and the Cour t is justified in rejecting it.15
[59] The Bank denies that it knew that the applicant was the legitimate executor of
the deceased estate when it transferred the funds to Botha , or that Botha’s
documents were fraudulent . This, however, does not change the lega l duty to
account to the lawful executor, whose authority the Bank does not dispute.
14 Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd 2017 (2) SA 1 (SCA);
National Director of Public Prosecutions v Zuma [2009] 2 All SA 243; 2009 (2) SA 279 (SCA).
15 Airports Company South Africa Soc Ltd v Airports Bookshops (Pty) Ltd t/a Exclusive Books [2016] 4
All SA 665 (SCA).
[60] It is common cause that the Bank advised the applicant’s attorneys that it had
paid the deceased’s credit balances in the sum of R2,191,666.24 to Johan Botha
and had closed the deceased’s accounts on 5 April 2022. It is accordingly common
cause that Stand ard Bank paid the funds held to the credit of the deceased’s
accounts to Johan Botha who was never entitled to the funds because he was not
the lawfully and validly appointed executor.
[61] The heads of argument filed on behalf of Standard Bank effectively mou nt a
charge of negligence or tardiness on the part of the applicant and his attorneys for
allowing delays to elapse from the reporting of the estate on 21 September 2021, to
discovering that fraud had been perpetrated against the estate and acquiring letters
of executorship on 2 September 2022.
[62] Yet the chronology set out by the applicant is not disputed regarding the many
efforts undertaken by the applicant’s attorney during the period from 21 September
2021 to 20 July 2022 to pursue the issue of letters of executorship, includ ing
following the prescribed complaints’ procedure at the Master’s office. There is
otherwise no specific act of negligence that the Bank is able to level at the applicant
in this regard , and a t no point has it ever accused the a pplicant of any such
negligence or tardiness.
[63] Nor would the Bank have legal ground to do so. The case law makes clear
that a customer bears no duty to anticipate criminal activity16. It is not enough, for the
purposes of escaping liability -
“… for the banker to show that the conduct of his customer, wilful, careless or
wasteful, or all, enabled the fraud to be committed. He must show that the customer
caused him to pay the money upon the forged cheque. It is not enough to show that
the customer gave occ asion for his so paying - that different conduct would have
prevented the fraud and the payment by the banker: … The carelessness of the
16 Big Dutchman para 64.
customer or neglect of the customer to take precautions unconnected with the act
itself, cannot be put forward by the b anker as justifying his own default”17.
[64] In its heads of argument and a t the hearing, the Bank complained that no
cause of action is disclosed by the applicant. This is a surprising charge given that
no prior complaint of this nature was raised in the answering affidavit. But in any
event, the founding affidavit made very cle ar that the Bank’s obligation which is
relied upon in these proceedings arises as a contractual consequence of the
creditor/debtor relationship, and as a term of the banking contracts, and as an
independent legal obligation arising from Standard Bank holdi ng monies on behalf of
the deceased and her estate. There was no quibble with this summary of the legal
basis for the case in the answering affidavit, and the summary is indeed a reflection
of the case law summarised earlier.
[65] And it is common cause that the deceased in fact held two bank accounts with
Standard Bank , in terms of agreements whose terms would have been recorded in
writing, and kept by Standard Bank .18 The contractual banking relationship is
therefore common cause , and it must be held to the standards set by the case law
summarised earlier, in terms of which a customer depositing money into their
banking account acquires a personal right against the bank to be paid the credit
reflected on the account (with interest, if agreed). It is furthermore cynical for the
Bank to complain that there is no contract document in the record, given its refusal to
provide it and other documents to the applicant, and which forms the subject -matter
of prayer 3.1.1. I accordingly do not find the app licant’s papers to be vague, or to
lack a cause of action.
[66] None of the cases relied upon in argument on behalf of the Bank were directly
relevant to the matter at hand or had the effect of changing the law summarised
earlier. In particular, the case of Hartog v Daly and Others19 which considered the
responsibility of a conveyancer who had fallen victim to interception of
communication by a fraudster, has no relevance to the facts of this case. That case
17 Holzman v Standard Bank at 364 F-G.
18 See founding affidavit, para 19; answering affidavit, para 32.
19 Hartog v Daly and Others [2023] 2 All SA 156 (GJ ).
did not in any way deal with the factual or legal is sues pertaining here. The case
turned on whether an alleged tacit term formed part of the mandate agreement, and
the court held that the appellant was responsible for the payment and that his case
against the bank was not established.
[67] To summarise my fin dings , the applicant has established its claim and is
entitled to payment from Standard Bank of the deceased’s claim in respect of credit
balances held by the bank on her accounts. It is accordingly not necessary to
consider the case of wrongfulness or negligence , which the Bank relies upon .
[68] But even in that regard, the Bank has failed to exonerate itself. It is not
disputed that the Standard Bank Deceased Estates department requires compliance
with a standard list of requirements, involving a standard se t of documents, before
responding to any request from an executor, attorney or agent for information about
a deceased person’s accounts , or regarding the closure of accounts and payment of
the funds to the executor. The required documents, which must be ce rtified by
“[c]lear, independent certifications” are listed as follows : Death certificate; ID
Document/ID Card of the deceased ; Letter of Executorship Notice of Death BI 1663 ;
ID of the Executor and FICA document ; Statement/confirmation of Estate late
Account ; Power of Attorney in favour of Agent/s ( if applicable) ; ID of Agent and FICA
document ( if applicable) ; All Executor/sand Agent/s ID's, FICA document and proof
of address/ess required .
[69] The Bank’s request for Botha to provide certified copies was made twice, first
on 15 March 2022, and after receipt of non -compliant documents, again on 23 March
2022. A consideration of t he totality of the submissions by Botha indicates that the
only certi fied copies he submitted were: police -certified copies of the Letters of
Executorship, with no legible stamp for the Master’s Office ; an illegible copy of the
deceased’s ID card; Botha’s ID card. The Bank neither requested nor received a
certified copy of Mrs Arnot’s death certificate. It also did not require proof of address
for Botha at the relevant time. It failed to ask for the BI 1663 Notice of Death form
which the undertakers provide to the family or executor , which would have provided
verifi cation fo r the legitimacy of the application. It also failed to ask for proof of the
estate bank account.
[70] After receipt of these inadequate documents, the Bank states that Ms Camp
verified the m on the Master's portal website. However, at the time in question,
although t he Master’s portal reflected Johan Botha’s name as executor , the contact
and address details reflected for the executor were those of the applicant. In other
words, had Ms Camp conducted a proper verification, she would have noticed tha t
the contact number reflected for the executor was not the same as the one provided
by Botha in his emails addressed to her. And t he executor’s address shown on the
portal is that of the applicant’s attorney, Mrs Curr, with her name indicated as
attorney agent for the executor. Had Ms Camp called the telephone number shown
on the portal page to confirm details she would have been in contact with the
applicant, and the fraud may well have been exposed. Ms Camp would have had no
reasonable or rational basis on which to regard Botha’s scant details as adequately
verified by checking it against the information shown on the Master’s portal.
[71] Yet, i mmediately after this superficial verification process and without further
ado, Ms Camp transferred the funds from t he deceased’s two accounts to Botha’s
bank account and closed the deceased’s accounts.
[72] There is no indication that Botha ever requested the Bank to issue any
certificate confirming account details and date of death balances, interest certificates
for tax returns, copies of statements needed for preparing Liquidation and
Distribution accounts – all of which is standard practice.
[73] Furthermore, from Botha’s emails, it appears that he was only aware of one
bank account belonging to the deceased, namely the mo ney market account, which
he expressly mentioned in his first email addressed to the Bank on 11 March 2022.
There is no indication that he was aware of the current account. The evidence
indicates that Ms Camp volunteered the funds in that account. In this regard, it is
understandable that the applicant states that the Bank ’s employees were so grossly
negligent as to appear complicit.
[74] For all the reasons discussed in this judgment , Standard Bank is liable to pay
to the applicant the money which stood to th e credit of the deceased’s accounts, and
the liability persists regardless of whether Standard Bank fell victim to fraud, was
innocent or guilty of wrongdoing in respect of the fraud perpetrated, or whether it was
negligent. And, although it is not necessa ry to establish that Standard Bank was
negligent or guilty of wrongdoing it was, in fact, negligent and appeared to do nothing
to guard or protect itself against the fraud that was committed. The relative extent of
such negligence, compared to that of the Master’s office, is beyond the scope of this
judgment.
[75] Since prayer 3 of the notice of motion was only sought in the alternative, it is
not necessary to grant it, and I was informed, in any event, that the applicant no
longer persists with it. As a result, is not necessary to traverse the lawfulness of the
Bank’s refusal to disclose the documents. However, given the fact that I am inclined
to order payment of interest on the amounts reflected in the two bank accounts
based on the deceased’s contracts with the Bank which are common cause , I
consider it prudent that the Bank should be ordered to deliver those contracts to the
applicant, in order to avoid any consequential disputes regarding the interest
amounts payable. The applicant is entitled to those documents in terms of section
26(1) of the Act since they be long to the deceased estate. There is otherwise no
reason why costs should not follow the result.
F. ORDER
[76] In the circumstances the following order is made :
1. It is declared that the first respondent’s purported closure of the late C.P.C.
Arnot’s Standard B ank current account number 2[...] and Standard Bank money
market account number 1[...] (collectively “ the two accounts ”), and the first
respondent’s purported distribution of the amounts standing to the credit of the
accounts, was unauthorised and unlawful.
2. It is declared that the first respondent is liable to the applicant for the amounts
which stood to the credit o f the two accounts at the time of the late C.P.C. Arnot’s
death, together with all subsequent interest on such amounts which accrued
thereafter.
3. The first respondent is ordered to deliver to the applicant, within 7 days of this
Order, documents setting out the terms and conditions of the relationship between
the first respondent and the late C.P.C. Arnot which applied to the two bank
accounts, namely current account number 2[...] and money market account number
1[...].
4. The first respondent is directed to pay to applicant, by transfer or payment into
the account of the Estate Late C.P.C. Arnot, Absa Bank account number 4[...]:
4.1 The amount which stood to the credit of the late C.P.C. Arnot’s Standard Bank
current account number 2[...] at the time of her death, of R38,815.76; and
4.2 The amount which stood to the credit of the late C.P.C. Arnot’s Standard Bank
money market account number 1[...] at the time of her death, of R2,152,850.48
million;
4.3 Interest on the amounts mentioned in paragraphs 4.1 and 4.2 above, at the
rate determined in accordance with the agreement(s) between late C.P.C. Arnot and
first respondent.
5. The first respondent shall pay the costs of this application and of the
interlocutory application, including the costs of two counsel in both applications , in
terms of scale C.
______________________________
N. MANGCU -LOCKWOOD
Judge of the High Court
APPEARANCES
For the applicant : Adv J G Dickerson SC
Adv C L Burke
Instructed by : Barry Jessop Dorrington Inc.
B Jessop
For the respondent : Adv P Long
Instructed by : Van Hulsteyns Attorneys
N de Ruiter