Firstrand Bank Limited v Phalang Business Enterprise CC

• Jurisdiction: South Africa
• Judge: TA Maumela J
• Judgment Date: 28 May 2020
• Docket Number: 3084/2015
• Hearing Date: 28 May 2020
• Court: North Gauteng High Court, Pretoria
• Citation: 2020 JDR 1454 (GP)

Maumela J:

1.

This is an application to join the Third to Sixth Respondents as the Third to Sixth Defendants in a case under case number 3084/2015. Initially, none of the respondents delivered an intention to oppose and accordingly this application was set down for hearing on 2 May 2019 in the unopposed motion court. The application is opposed.

BACKGROUND.

2

On the 2nd of May 2019, the application came before Davis J who granted an order, [1] in terms of which the third and Fourth Respondents were joined as the third and fourth defendants in the action under the above case number. In the light of the Fifth and Sixth respondents' indication of intention to oppose the application, the relief sought against them was postponed and they were afforded an opportunity to file their answering affidavits. The applicant's prayer for leave to amend its particulars of claim was not expressly dealt with by Davis J.

3.

The order by Davis J's order implies that that portion of the relief sought by the applicant is also postponed. The Fifth and Sixth respondents then delivered their answering affidavit. The Applicant replied to it.

THE MATERIAL FACTS AND ALLEGATIONS.

2020 JDR 1454 p3

Maumela J

4.

The following is not disputed by the and Sixth Respondents:

4.1.

That during the period of October 2012 to March 2013, an error occurred in the applicant's internet banking and/or FNB banking app.

4.2.

When the applicant's account holders utilised internet banking or the FNB banking app to transfer monies to third party accounts, held at banks (other than FNB), an amount equal to such specified payment, was also simultaneously transferred from the applicant's own funds. [2]

4.3.

As such, the intended beneficiary received one payment from the transferor and a second unintended payment from the FNB depository i.e. from the applicant itself.

4.4.

The First Respondent was a holder of a bank account with the applicant's FNB division with account number XXXX.

4.5.

The Second Respondent was at all times the sole member of the First Respondent.

4.6.

The First Respondent utilised the applicant's internet banking and/or FNB banking app.

4.7.

During the period 5th March 2013 to 14th March 2013, a number of deposits were made into the First Respondent's aforementioned bank account.

4.8.

During that same period, (5th March 2013 to 14th March 2013), 230 amounts of R1,500.00 and ten amounts of R500.00 were transferred from the First Respondent's account to an account held at ABSA Bank under the account number XXXX ("the ABSA bank account").

4.9.

As a result of the 230 transfers of R1,500.00 each, and ten transfers of R500.00 each, an amount of R350,000.00 was effectively misappropriated from the applicant and deposited into the ABSA bank account.

4.10.

In light of the above facts, in January 2015, the applicant instituted an application out of the above

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Maumela J

Court under the case number indicated in paragraph 1 in order to recover the R350.000.00 from the First and/or Second Respondents on the following grounds:

(a).

the use of the First Respondent's account in the aforementioned manner constituted a breach of the applicant's terms and conditions and in particular the obligation not to use the account for fraudulent or unlawful purposes; or

(b).

the transactions resulted in the First and/or Second Respondents being unduly enriched at the applicant's expense; or

(c).

the appropriation of the...