SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 474/2024

In the matter between:
INTENGO IMOTO (PTY) LTD t/a NORTHCLIFF
NISSAN APPELLANT
And
ZOUTPANSBERG MOTOR WHOLESALERS CC t/a
HYUNDAI LOUIS TRICHARDT RESPONDENT

Neutral citation: Intengo Imoto (Pty) Ltd t/a Northcliff Nissan v Zoutpansberg
Motor Wholesalers CC t/a Hyundai Louis Trichardt (474/2024 )
[2025 ] ZASCA 93 (20 June 2025 )
Coram: ZONDI DP and MOTHLE, WEINER, KATHREE -SETILOANE and
COPPIN JJA
Heard : 20 May 2025
Delivered : This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The time and date for hand -down is deemed to be
11h00 on 20 June 2025.
Summary: Contract —purchase and sale —claim for payment of price of vehicles
purchased —payment by way of electronic funds transfer (EFT) —details of seller’s
bank account provided in invoice sent by email —plea of payment into bank
account —payment not received by seller in its bank account —whether the onus of
proving payment discharged.
2

___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from : Limpopo Division of t he High Court, Thohoyandou (Tshida da J and
Khosa AJ , sitting as a court of appeal ):
1 The appeal is upheld with costs.
2 The order of the high court is set aside and replaced with the following order:
‘The appeal is dismissed with costs. ’
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Coppin JA (Zondi DP and M othle , Weiner and Kathree -Setiloane JJA
concurring) :
[1] This appeal concer ns the question whether a purchaser who pays the price of
the thing purchased into a bank account , other than the account of the seller, without
the authority of the seller , but due to a fraudulent substitution of account details, has
discharged the onus of proving payment.

[2] This is an appeal against the order of the Limpopo Division of the High Court,
Thohoyandou (Tshida da J and Khos a AJ) (the high court) which upheld with costs,
an appeal by the respondent against an order of the Regional Court for the Regional
Division of Limpopo , held at Louis Trichardt (the regional court) . The regional court
ordered the respondent , Zoutpansberg Motor Wholesalers CC t/a Hyundai Louis
Trichardt (Hyundai ), to pay the appellant , Intengo Imoto (Pty) Ltd t/a Northcliff Nissan
(Intengo) : (a) the purchase price (R290 000) for two motor vehicles; (b) mora
interest; and (c) party and party costs. The high court substituted the regional court’s
order with an order that Intengo’s claim for payment against Hyundai is dismissed
with costs. Leave to appeal against the high court’s order was granted to Intengo on
petition to this Court.

Background facts
3

[3] On 30 October 2018 and in Northcliff, Johannesburg the parties concluded a
partly written, partly oral agreement in terms of which Intengo sold to Hyundai two
Nissan NP200 vehicles for the price of R145 000 each. The written part of their
contract consisted, essentially of two invoices generated in resp ect of each of the
vehicles, which reflected the particulars of the vehicles, the price, the delivery
address, and of significance for this appeal, the banking details of Intengo .

[4] It is common cause that it was agreed between them that : (a) upon receipt of
the invoices that were to be sent by email , Hyundai would effect payment of the
purchase price of the vehicles by way of an electronic funds transfer (EFT) into the
banking account of Intengo , the details of which were provided on the invoices; and
(b) upon receipt of payment , Hyundai could take delivery of the vehicles .

[5] The following is also common cause. In entering into the ag reement , Intengo
was represented by Mr Marco Sutherland (Mr Sutherland) , who at the time was the
new vehicle sales team leader . Hyundai was represented , initially , by Mr Dawie
Schlebush (Mr Schlebush) and subsequently by Mr Brian Lucien Meth (Mr Meth) , a
senior sales executive. Mr Sutherland sent an email to Mr Meth on Tuesday, 30
October 2018 , in which he requested the invoicing details of Hyundai . On the same
day Mr Meth emailed those details to Mr Sutherland.

[6] According to M r Sutherland , he emailed the invoices pertaining to the sale of
the two vehicles to Mr Meth on the same day, ie 30 October 2018 at 13h12 . The
invoices were attached to an email addressed by Mr Sutherland to Mr Meth and
copied to Mr Schlebush . The subject of the email was ‘invoices ’. The attached
invoices also contained Intengo’s banking details, which included the name of the
bank ing institution, First National Bank (FNB), the account number and branch
number, which for security purposes is only described here with ref erence to the last
three digits, namely 7[...] and 3[...] respectively . Payment of the purc hase price of the
two vehicles w as to be made by means of an EFT into Intengo’s banking account , as
described on those invoices.

[7] On 31 October 2018 at about 15h56 , Mr Meth emailed proof of payment in
respect of the first vehicle to Mr Sutherland . It is accepted that the p roof of payment
4

reflected that the amount owing in respect of that vehicle had been paid into a FNB
account number ending with th e digits 9[...]. On the same day, and without
establ ishing whether the payment w as reflected in Intengo’s bank account, M r
Sutherland released the fir st vehicle for delivery, and it was delivered to Hyundai .

[8] On 1 N ovember 201 8, Mr Meth , by WhatsApp , furnished Mr Sutherland with a
proof of payment in respect of the second vehi cle. The proof of payment document
showed that an amount of R145 000 had been paid into an FNB account ending with
the digits 9[...]. On tha t same day Mr Sutherland, again, without establishing whether
any of the amounts were reflected in Intengo’s bank account , released the second
vehicle for delivery and it was delivered to Hyundai .

[9] It is also not disputed that on 7 November 2018 Intengo became aware that
the payments for the vehicles had not been made into its FNB bank account number
(ie ending with 7[...]) as reflected in the invoices that M r Sutherland had sent to M r
Meth and Mr Schlebush on 30 October 2018.

[10] It was discovered that instead of having paid the purchase price for the two
vehicles into Intengo’s bank account ending with 7[...] and held at branch 3[...], the
amounts had been paid into a different (fraudulent) account ending with 9[...],
purportedly held at FNB branch number ending with 6[...]. Intengo demanded
payment. Hyundai , on the other hand, insisted that it had paid . In doing so, it relied
on the proofs of payment into, what turned out to be fraud ulent account (s), and that
Mr Sutherland had released the vehicles upon receipt of those proofs of payment.

[11] On 9 March 2020, Intengo instituted a n action in the regional court in which it
claimed the payment of the total purchase price for the two vehicles (R290 000), plus
mora interest and costs from Hyundai . The action was defended by Hyundai . The
matter eventually proceeded to trial. Intengo called a s witnesses, Mr Sutherland and
Mr Adria n Petrus Roux (Mr Roux) . Mr Roux gave evidence on the information
technology (IT) aspects , including the fraudulent electronic interception of the emails
and computers. Hyundai only called Mr Meth as a witness.

5

[12] The regional court found that the matter involved “cybercrime”; that the
payments had been made erroneously into the wrong account; and that it was
indisputable that Intengo never received payment . Relying on the decision of
Potgieter v Capricorn Beach Homeowners Association and Another ,1 it held that
Hyundai was obliged to pay Intengo . Ultimately, the regional court found that
Hyundai ought to have verified the ba nking account details with Intengo before
making the payments ; and that if Hyundai ‘did this the risk would have been
mitigated’; and that [t]he money was spirited away but [ Hyundai ] still owes [ Intengo ]’.
On that basis the regional court granted Intengo the relief as prayed and ordered
Hyundai to pay the principal sum, mora interest and costs.

[13] Hyundai appealed to the high court. The high court found in its favour and
substituted the regional court ’s order with an order dismissing the appellant’s claim
with costs. The high court found as follows:
‘[23] [Intengo’s] claim was founded in contract, not in delict. As the dominus litis , [Intengo]
bore the onus to prove the terms of the contract, that it complied with the terms and that
[Hyundai] breached those terms.

[24] The appellant pleade d additional terms of the contract. By doing so, it placed the
onus on [Intengo] to prove that those additional terms are not terms of the contract. In my
view, The Regional Court erred in finding that the onus shifted to [Hyundai] to prove that it
paid into the correct bank account. There is no basis in law for that shift of onus to [Hyundai] .

[25] [Intengo] failed to prove the terms of the contract and to disprove the additional terms
of the contract pleaded by [Hyundai] . Without a clear identification of the terms of the
contract, it would naturally be difficult to make a determination whether there is a breach.

[26] In order to succeed, [Intengo] had to prove a breach of the terms of the contract
relating to payment of the purchase price. Instead, [Intengo] adduced evidence of negligent
failure to verify bank account details. Effectively, [Intengo] failed to prove the breach of a
term of the contract claim it pleaded. On this basis alone, [Intengo] claim ought to have
failed.


1 Potgieter v Capricorn Beach Homeowners Association and Another [2012] ZAWCHC 66 (20 March
2012) .
6

[27] In determining the liability of [Hyundai] to pay [Intengo] the sum of R290 000.00
based on negligence, the court a quo erred in that it lost sight of the pleaded case.
Therefore, the judgment of the Regional Court falls to be set aside.’

The pleadings
[14] In the particulars of claim to its summons Intengo , inter alia, alleged that ‘in
breach of its obligations according to the agreement, [Hyundai] has failed to make
payment to [Intengo ] of any of t he amounts owed t o [Intengo ] in respect of the
vehicles’.

[15] Hyundai defended the action and, in its plea, inter alia, denied that it was
indebted to Intengo , and pleaded , effectively , that it had paid all amounts due in
respect of the purchase of the vehicles in full to Intengo . In particular, Hyundai
alleged th at:
‘9
[Intengo] alleges that the payment effected by [Hyundai ] was paid into an unknown bank
account. [ Hyundai ] pleads that at all material times it effected payment into the bank account
described on the invoices.
10
At all material times, [Intengo ] stipulated the mode of payment by [Hyundai ] and elected
electronic funds transfer (EFT) as its chosen mode of payment. [Intengo ] elected email as its
chosen mode of communication. [Hyundai ] acceded the request of [Intengo ] in respect of
[Intengo’s ] stipulated mode of payment and communication, any risk inherent in the
stipulated methods were for [Intengo’s ] account.
11
[Hyundai ] reacted to the invoice received and effected payment of the purchase price of the
vehicles into the bank account stipulated on the invoices received.
12
At all material times, the risk of loss in utilizing the E FT system and email lay with [Intengo ].
[Hyundai’s ] obligation to pay, must be deemed to be fulfilled. Any risk associated [with] and
inadequacies of the EFT payments system and the email communication system must be
assumed by [Intengo ].
13
[Hyundai ] denies being indebted to [ Intengo ] for the sums claimed in [Intengo ’s] summons or
any sum at all.
14
7

Wherefore [Hyundai ] prays that [Intengo ’s] action be dismissed with costs.’

[16] Since Intengo did not replicate to th e plea, Hyundai ’s allegations were to be
taken as denied. In an affidavit in support of an application for summary judgment
Intengo , inter alia, averred that payment had not been made into the account
specified in the invoices that were sent to Mr Meth and Mr Schlebush of Hyundai on
30 October 2018 and that the proofs of payment relied upon by Hyundai show
payment into another account not linked to Intengo .

The issues arising from the pleadings and the onus
[17] The high court erred in its characterisation of the issues arising from the
pleadings and the nature of the onus. Essentially , Intengo claimed payment of the
purchase price and Hyundai alleged that it had paid the purchase price. Hyundai
bore the onus to prove , inter alia, payment (and any additional terms it allege d) on a
balance of probabilities.2 If it failed to discharge that onus , judgment had to be given
in favour of Intengo . It is another trite principle of law that the onus of proof does not
shift, and that only an evidentiary burden shifts , depending on the evidence
presented in respect of the issue s and in respect of which the onus is to be
discharged.3

[18] As part of its onus , Hyundai had to prove that the payment was made into the
bank account of Intengo as per Intengo ’s request, which Hyundai agreed to. This
Court h as accepted , that as a matter of common sense, for effective payment to
occur the payee must, in the absence of a contrary agreement , acquire ‘the
unfettered or unrestricted right to the immediate use of the funds in question
otherwise the payment is inchoate ’.4 It has also been held that the place of payment
in the case of an EFT is when the funds (meant for payment) are actually received
by the payee in its bank account.5

2 See inter alia, Pillay v Krishna 1946 AD 946 at 952 and 958; Standard Bank of South Africa Ltd v
Oneanate Investments (Pty)Ltd (In Liquidation) [1997] ZASCA 94; 1998 (1) SA 811 (SCA) ; [1998] 1
All SA 413 (A) at 823 .
3 South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534
(A).
4 Vereins – Und Wesbank AG v Veren Investments and Others 2002 (4) SA 421 (SCA).
5 Bush and Others v B J Kruger Inc. and Another [2013] ZAGPJHC 4; [2013] 2 All SA 148 (GSJ) para
67.
8


[19] The essential facts in this case are not unique. Th is kind of incident seem s to
occur often. In Mosselbaai Boere Dienste (Pty) Ltd t/a Mosselbaai Toyota v OKB
Motors CC t/a Bultfontein Toyota6 the full court of the Free State High Court dealt
with a similar situation. Having reviewed a few judgments7 where a similar issue was
dealt with , that court correctly concluded: ‘The golden thread in the judgments referred to
supra places an obligation on the purchaser to ensure that the bank account details
contained in the invoice is in fact correct/verified and that payment is made to the seller and
not to an unknown third party. Failure to do so, and where payment is made into an incorrect
bank account, such incorrect payme nt does not extinguish the pu rchaser ’s obligation and
liability to pay the debt .’8

[20] Regarding the risk - our courts9 have effectively held that the same general
principle that applie s where payment was made by means of a cheque also applied
in these instances, namely , that the ‘risk is the debtor’s since it is the debtor’s d uty to
seek out his creditor ’.10 Recently , in a matter where a debtor who made a payment
into a false account sued attorneys for pure economic loss, this Court reversed the
decision of a court which effectively found that all creditors owe a legal duty to
protect debtors from the possibility of their accounts being hacked. This Court found
that imposing such a duty was untenable in circumstances where the debtor could
have taken steps to protect itself but failed to do so . It held: ‘ The ratio of the high
court’s judgment that all creditors in the position of ENS [Edward Nathan Sonnenberg] owe a
legal duty to debtors to protect them from the possibility of their accounts being hacked is
untenable. The effect of the judgment of the high court is to require creditors to protect their

6 Mosselbaai Boere Dienste (Pty) Ltd t/a Mosselbaai Toyota v OKB Motors CC t/a Bultfontein Toyota
[2024] ZAF SHC 95; 2024 (6) SA 564 (FB) (Mosselbaai Boere Dienste ).
7 Galactic Auto (Pty) Ltd v Andr è Venter [2019] ZALMPPHC 27 paras 49 -51; Fourie v Van der Sp uy &
De Jongh Inc. [2019] ZAGPPHC 449; 2020 (1) SA 560 (GP) paras 23 -24; Andr è Kock en Seun
Vrystaat (Pty) Ltd v Snyman N O [2022] ZAFSHC 161 ; 2022 JDR 1792 (FB) paras 8 -9; Gerber v PSG
Wealth Planning (Pty) Ltd [2023] ZAGPJHC 270; 2023 JDR 0899 (GJ) paras 89 -90; Hartog v Daly
and Others [2023] ZAGPJHC 40; [2023] 2 All SA 156; 2023 JDR 0189 (GJ) paras 41 -73 and 80 -81.
See also Gripper & Company (Pty) Ltd v Ganedhi Trading Enterprises CC [2024] ZAWC HC 352; 2025
(3) SA 279 (WCC) ; Njabulo Kubheka ‘Email fraud and payment ver ification : How have the courts
adapted to the challenges posed by c ybercrime ?’ (2025 ) De Rebus.
8 Mosse lbaai Boere Dienste para 58 .
9 See the cases referred to in footnote 6 and 7 .
10 Mannesman Demag (Pty) Limited v Romatex 1988 (4) SA 383 (D) at 389 F – 390 D .
9

debtors against the risk of interception of their payments. The high court should have
declined to extend liability in this case because of the real danger of indeterminate liability. ’11

[21] Intengo, through the evidence of Mr Sutherland and Mr Roux established a
prima facie case that Mr Sutherland sent the invoices to Mr Meth and Mr Schlebush
by email ; these invoices bore the correct banking details of Intengo ; and there was
no interception of the email until it left th e server of Intengo. I mplicit in their evidence
is that there must have been an interception of the email on the side of Hyundai .

[22] Although Mr Roux conceded that he c ould not verify whether it had been
intercepted on the side of Hyundai because he had no access to its server or
computer , he was adamant that the interception and infiltration of Intengo’s banking
details could not have been from Intengo ’s side. According to Mr Roux: ‘. . . definitely
[the] [e] mail was intercepted, and an attachment wa s changed on the email ’. Mr
Roux pointed out, that if he had access to Hyundai’s mail server and computer he
would have been able to determine more accurately when the interception occurred
and when the changes were affected.

[23] Hyundai did not produce any evidence at all that would address that issue.
Instead, it only led t he evidence of Mr Meth , who testified to the following effect : he
passed on the invoices , that he received in the email from Mr Sutherland to
Hyundai ’s accounts department ‘to load it for payment’ . Once he had concluded the
deal in respect of the vehicles with Hyundai ’s customer , he sent his driver on the
morning of 31 October 201 8 to Intengo , and instructed Hyundai ’s accounts
department ‘to release payment and forward proof of payment ’.

[24] Hyundai did not call anyone from its accounts department to testify how
payment was made . Mr Meth, on his own version, did not have personal knowledge
of that fact. Hyundai appears to have relied a great deal on the fact that Mr

11 Edward Nathan Sonnenberg In c. v Judith Mary Hawarden [2024] ZASCA 90; 2024 (5) SA 9 (SCA)
para 21.
10

Sutherland released the vehicles after the proofs of payment had been sent to him.
But that was clearly not enough to prove payment .

[25] Mr Meth conceded that Intengo ‘did not receive the money which had been
paid into the account’ ie the account number ending with the digits 9[...]. When asked
whether the respondent had received the appellant’s correct banking details as
alleged b y the appellant, Mr Meth answered as follows: ‘I received the correct
banking details which was on the invoice ’. And he further testified: ‘[s] o, according to
us we have paid the correct account number, the funds into the correct account ’. He
further testified that he did not call Mr Sutherlan d after receiving the invoices in order
to confirm that the banking details were correct, because he did not have a ‘reason
to suspect tha t the banking details would be different. ’ He was asked whether there
was a duty on him to check whether payment was made into the correct account. His
answer was: ‘[m]y duty was to make sure the payment is made on the proof of payment .
My accounts must release funds and then I sent the proof of payments. Once Mr Sutherland
releases the bakkies, that confirms with me that he has received the funds .’
Mr Meth further testified that the incorrect payment was Mr Sutherland’s fault
‘because he did not check his accounts before releasing the bakkie s’.

[26] Mr Meth conceded that it was normal business practice in car dealerships to
request payment by way of an EFT. He testified to the e ffect that he was not aware
of cybercrime and the fact that emails could have been intercepted as occurred in
this instance. This intensified the need on the respondent’s side to produ ce the
necessary evidence to call someone from the accounts department of Hyundai who
was responsible for the payments. But none of that was done. Mr Meth could not
speak for and on behalf of the accounts department of Hyundai .

[27] The most concer ning aspect of Mr Meth’s evidence was t hat he could not
explain a third notification of payment that he emailed to Mr Suthe rland on 1
November 2018. The notice show s that an amount of R145 000 had been
transferred by the respondent into the correct account of the appellant ( ie the FNB
banking account number ending with the digits 7[...]). That notification , however,
bears the incorrect branch code. The fact that this notification emanated from the
respondent shows that the respondent was aware of Intengo ’s correct banking
11

account details . The anomaly created by that notification called for an answer from
Hyundai , but it remained unexplained. Ms Tahera Karim, who handled the finances
and accounts of Hyundai , and who furnished Mr Meth with the proofs of payment,
was not called as a witness , and Hyundai made no effort to deal with th e anomaly
presented by this third notification. It is also common cause that Hyundai never
verified Intengo’s banking details before ma king the payments into the false
account(s).

[28] On a conspectus of all the facts , Hyundai failed to discharge its onus of
proving that it had paid Intengo the purchase price for the two vehicles. A payment
into a different account , not autho rised by Intengo, and without verifying Intengo’s
banking details , did not release Hyundai of its payment obligation to Intengo.
Hyundai’s contention that Intengo bore the risk in those circumstances is untenable .
The regional court correctly ordered Hyundai to pay those amounts, plus mora
interest and costs. Insofar as the high court held otherwise, it erred.

[29] In the result:
1 The appeal is upheld with costs.
2 The order of the high court is set aside and replaced with the following order:
‘The appeal is dismissed with costs.’



________________
P COPPIN
JUDGE OF APPEAL

12

Appearances

For the appellant: D B du Preez SC with J C Carstens
Instructed by: GD Ficq Attorneys, Johannesburg
Honey Attorneys, Bloemfontein

For the respondent: J H Groenewald
Instructed by: Van Heerden & Rudolph Inc., Louis Trichardt
JL Jordaan Attorneys , Bloemfontein .