Nissan South Africa (Pty) Ltd v Marnitz NO and Others (Stand 186 Aeroport (Pty) Ltd Intervening)

• Jurisdiction: South Africa
• Judge: Streicher JA, Nugent JA, Conradie JA, Patel AJA and Ponnan AJA
• Judgment Date: 01 October 2004
• Citation: 2005 (1) SA 441 (SCA)
• Docket Number: 27/2004
• Hearing Date: 17 September 2004
• Counsel: J G Wasserman SC for the appellant. J J Brett SC (with him J Wilson) for the respondents. W B Pye for the intervening party.
• Court: Supreme Court of Appeal

Streicher JA:

[1] What are the consequences of mistakenly transferring money to an incorrect bank account? That is the question that arises for decision in this appeal. H

[2] The appellant is a customer of the third respondent (FNB). On 31 December 2002, it instructed FNB to make certain payments to its creditors. One such creditor was TSW Manufacturing. Insofar as TSW was concerned, FNB was instructed to pay an amount of I R12 767 468,22 into Standard Bank account number 0202216657. However, that account was the account of Maple Freight CC (Maple). Due to a clerical error, the wrong banking details had been furnished. The appellant did not owe Maple any amount and had no intention of paying any amount to Maple. J

Streicher JA

[3] As a result of the erroneous instruction, on 31 December 2002, an amount of R12 767 468,22 was transferred by FNB A from the appellant's account to Maple's account at Standard Bank. Shortly thereafter, Maple became aware of the deposit into its account. It realised immediately that it had been made by mistake. One would have thought that it would have been obvious to Maple as to what should be done in the circumstances. However, that was not the case. Maple B considered it necessary to obtain legal advice as to what its position was as recipient of the funds. Quite surprisingly, it was advised that the amount should be transferred to a call account, that it was entitled to the interest earned on the funds and that the amount transferred would eventually have to be repaid on demand. C

[4] In terms of a factoring agreement, Maple had a receipts, as well as payments, account with FNB. Payments and transfers could not be made from the receipts account to any account other than the payments account. On 2 January 2003, Maple transferred an amount of D R12 700 000 from its Standard Bank account to its FNB receipts account. It has not been explained why, if the intention was to follow the legal advice obtained, the call account had not been opened at that stage and the amount had not been paid into that account. On 2 January 2003, R12 700 000 was withdrawn from the receipts account and, on 3 January 2003, R9 750 000 thereof was deposited into the payments account. On 6 January 2003, a further amount of E R3 250 000 was deposited into the payments account.

[5] After payment into the FNB receipts account, one Stanley, the sole member of Maple, instructed Maple's accountant to open a call account and to place the amount of R12 700 000 into that account. F These instructions were conveyed to FNB and a call account was opened on 7 January 2003. According to Stanley, the funds had been transferred from the receipts account to the payments account to permit them to be transferred to the call account. He does not explain the discrepancy between the amount debited to the receipts account on 2 January and the amount credited to the payments account on G 3 January.

[6] However, the funds were never transferred to the call account, due, according to Stanley, to an error on the part of FNB. According to FNB, it was never instructed to transfer funds to the call account but was told that Maple would do so electronically. In the H meantime, unbeknown to Stanley, so he says, the funds were being utilised in conducting the day-to-day business of Maple.

[7] On 20 January 2003, when TSW made enquiries about the amount that should have been paid to it by 31 December 2003, the appellant became aware of the erroneous payment. The appellant I thereupon demanded return of the funds. Maple indicated that it was prepared to comply with the demand subject to its retaining the interest earned thereon and a lavish 'administration fee' of 4% of the amount concerned. J

Streicher JA

[8] According to Stanley, Maple was, on or about 23 January 2003, 'in a position to pay the moneys over' to the appellant, but A then discovered that FNB had omitted to transfer the moneys to the call account. Upon this discovery, he drew three cheques in favour of the appellant but, before the cheques could be deposited into the appellant's account, the appellant obtained a court order freezing Maple's banking facilities. This step, according to Stanley, put Maple under considerable financial strain and resulted in him, as the only B member of Maple, resolving that the corporation be wound up voluntarily. The first and second respondents were appointed as liquidators. It apparently did not occur to Stanley that the appellant would agree to waive its rights in terms of the court order against repayment of the funds. C

[9] As at 23 January 2003, the credit balance on the payments account was R10 558 818,05. It would, therefore, appear that Maple was, in fact, not in a position to pay the moneys over to the appellant as alleged by Stanley. The first and second respondents contend that the total amount of R10 558 818,05 forms part of the insolvent estate of Maple and is subject to a concursus D creditorum. The appellant contends that at least the R9 750 000 which can be traced to the amount transferred from its account to Maple's account does not form part of the insolvent estate. By agreement between the parties, the amount of R10 558 818,05 was, on 20 February 2003, transferred to a bank account under the control of the first and second respondents where it is being held pending E the present proceedings.

[10] Having obtained the interim interdict, the appellant applied to the Witwatersrand Local Division for an order:

(a)

Declaring that the amount of R9 750 000 and any interest that accrued thereon from 20 February 2003 did not form F part of the insolvent estate of Maple Freight CC (in liquidation); and

(b)

directing the first and second respondents to pay the amount to the appellant, alternatively, FNB.

Stand 186 Aeroport (Pty) Ltd (the intervening party) subsequently, with the leave of the Court a quo, intervened as a party to G the proceedings. Stanley is its sole director and shareholder.

[11] Mailula J held that Maple, and not FNB, was enriched by the transfer of the funds and that the appellant, therefore, did not have a claim against FNB but had a concurrent claim against the insolvent H estate of Maple. In the result, the Court a quo dismissed the application with costs. With the necessary leave, the appellant now appeals against the Court a quo's judgment.

[12] Counsel for the appellant submitted that because there was no intention on its part to pay Maple, Maple had no entitlement as against Standard Bank...