CIVIL LAW

Facts and issue: Neffex and BMG, the first and second applicants, respectively, caused to be issued this application comprising relief divided into Part A and Part B. The applicants, in terms of Part A of the application, primarily, sought urgent interdictory relief against the respondents to vacate a farm or immovable property and for restoration of possession and/or occupation of the property to the applicants, as well as some articles seized from the applicants at the instance of the respondents or functionaries of the respondents.

Discussion: The applicants were deprived of possession of the property, the ‘contaminated coal’ and other articles. Some of these have been restored to the applicants. However, the court does not agree with the contention by the respondents that the restoration of some of the articles and the Property to the applicants renders the application unnecessary or even its urgency. The other part of the question is whether the deprivation was unlawful. The respondents contend that as the deprivation was executed in terms of the warrant, there is no room to allege unlawfulness. It is specifically argued on behalf of the State respondents that a balance needs to be struck when considering issues relating to warrants between effective combatting of crime, on the one hand, and the constitutional rights and freedoms of persons, on the other hand. The applicants’ retort is that there was unlawfulness in the manner in which the warrant was executed.

Findings: The respondents argued that the lockout was due to the existence of the warrant. This is an issue of reasonableness. It ought to have been shown that it was not reasonably possible to execute the warrant without the complete lockout of the nature and extent that it was. It was not reasonable to prevent access by the applicants to the property and for the time that it took to do so. There is no suggestion that those prevented would have interfered in any way with the execution of the warrant amidst the SAPS and Bidvest Protea guarding the premises. Therefore, the complete denial of access to the property and for the long duration it took was unlawful. The warrant did not include the lockout of the applicants and any interim interdict to allow access would have been justified. The applicants seek as relief the stay of the Warrant pending the determination of the relief under Part B. The court finds that it would be proper to grant a temporary stay of the warrant until the matter is fully disposed of in terms of Part B. The applicants have achieved partial success.

Order: The fifth to seventh respondents are ordered to produce to the applicants, within 30 days, the SAP 13 register of articles seized in terms of the search and seizure warrant issued at Brits Magistrate’s Court. A rule nisi be issued, pendente lite Part B of the application.

Facts and issue: The central issue in this appeal is whether the trustees of the trust were lawfully appointed. This arises from the appeal by Glencore and Mr Tshikane against the judgment and order of the High Court. The High Court dismissed their application for an order, first, declaring that the respondents were not trustees of the trust. Second, the High Court dismissed the appellants’ application to review and set aside the appointment of the respondents as trustees as well as the authorisation issued by the Master authorising the respondents to act as trustees.

Discussion: The non-implementation of the trust deeds’ provisions gave rise to the dispute which served before the High Court. The failure to appoint trustees in terms of the deed of trust resulted in governance deficiencies which ultimately led to the removal of the Kgosi as a trustee. The Master removed the Kgosi from his fiduciary position and authorised the respondents to continue to act as trustees. The appellants challenged the appointment of the respondents as trustees before the High Court, citing the contended illegality and invalidity of their appointment. In addition, the appellants contended that the authorisation granted by the Master in terms of s 6(1) of the Trust Property Control Act 57 of 1988 to the respondents is invalid. Since the establishment of the trust, no advancements regarding the appointment of trustees had been made due to internal conflict. The respondents were identified for appointment by a faction in the traditional council, which appointment lacked the endorsement of the Kgosi and other community members in terms of clauses of the trust deed. This put into question the legitimacy of both their appointment and the authorisation by the Master.

Findings: The High Court failed to recognise the invalidity of the authority issued by the Master. Its finding that ‘it cannot be said that there is irreparable harm to be suffered by the community being stuck with unlawfully appointed trustees’, is indicative of its failure to appreciate the unlawfulness of the respondents’ appointment as trustees. Once the High Court had concluded that the respondent’s appointment was unlawful, it should have dismissed the counter-application and upheld the application. There is no room for the exercise of a discretion by the High Court in terms of s 6(1). The failure to appoint the trustees in terms of the trust deed should have been dispositive of the matter.

Order: The appeal succeeds. The order of the High Court is set aside and replaced. It is declared that none of the second to seventh respondents is a trustee of the trust. The authorisation issued by the Master to the second to seventh respondents, authorising them to act as trustees of the trust, is declared invalid and is set aside.

Facts: The applicant and respondent manufacture a health drink containing aloe ferox. They market it under the same name, Jigsimur. The applicant states that it is used to help treat various ailments. The applicant provided a historical account of the product, much of which is disputed by the respondents. Ungerer sourced the original formula in the 1980s from an advert in a magazine of that era and commenced with its production. He approached the applicant’s father, Omar, who operated a cold drink manufacturing plant, to bottle the product. The applicants and Ungerer and then Ungerer’s wife, Rouxnel, produced the product simultaneously but from different sites after 2005. This application concerns material published by the respondents on their website concerning Jigsimur. The application commenced as a two-part urgent application. The parties took an order by agreement. The respondents undertook to resist making statements for six weeks, that the applicant's product is counterfeit or fake.

Application: The court is asked to determine the relief sought in Part B of the application: an order declaring that the impugned content on the respondent’s website is false, unlawful and defamatory; and for a final interdict prohibiting the respondents from defaming the applicant.

Discussion: The applicants attached a screenshot of the respondent’s webpage to its notice of motion. The screenshot is headed “Fake Jigsimur products and fake factory video”. It contains extracts of online advertisements from two large retailers operating in the South African marketplace, namely Takealot and Makro. The adverts reflect a product with distinctive labelling and the title page of a video: “Welcome to the Jigsimur Factory”. The applicant alleged that the adverts are of the Jigsimur product they sell on Takealot, and the video is of their factory and the manufacturing and packaging process. The applicant must prove at the outset that the publication of defamatory matter concerns them. There is no reference to the applicants by name in the publication. The respondents asserted that the applicants had not provided any evidence to indicate any defamatory or unlawful conduct by them against the applicants contained on the screenshot or the respondent's website. The video has three distinctive features.

Findings: The applicants failed to exploit any of the three distinctive features in the video to connect the video to them. Had the applicants addressed any or all of them appropriately by either explaining the web and email addresses, the labelling affixed to the bottles, or the personnel appearing in the video with the necessary confirmatory affidavits, they may have linked it as a video of the applicants' warehouse. The applicants seek a declaratory order that the statement published on the respondents' website is false, unlawful, and defamatory and a final interdict prohibiting the respondents from defaming the applicants. The applicants floundered on the most important element of this application, being identification. The applicants had to prove that the statement referred directly or indirectly in a way that a reasonable person would understand it to be about the applicants. The alleged defamatory material on the website did not refer to the applicants by name or contain their images. The applicants had failed to prove the link between the material published on the respondents' website and them. The applicants failed to identify any distinctive feature of the products sold by the two retailers or in the video that linked them to the applicants.

Order: The application is struck out with costs.

BHOOPCHAND AJ

Facts and issue: The applicant seeks orders declaring that two meetings held by the board of the Church were invalid and that all decisions and resolutions adopted at those meetings are void. The applicant seeks ancillary relief against the respondents. They are to attend a meeting to be called by the applicant to enable the appointment of two spiritual leaders from KCI-UK, alternatively one, to the board and to pay the costs of this application. The parties agreed that the declaratory relief sought depended upon whether the board was properly constituted.

Discussion: The court interpreted the clauses material to the adjudication of this application according to the established principles of interpreting legal documents. It considered the case cited by the applicant as authority for the situation where the number of church council members fell below the minimum threshold. The 2011 case permitted the remaining council members to overcome an obligatory clause in its constitution without reverting to its congregation, provided that the constitution allowed for the substitution of members once a vacancy arose. The legal principles applied to this application meant that the board comprising the applicant and the respondents had a duty to appoint a qualified member, i.e., a spiritual leader from KCI-UK, to its board before it could conduct the business of the Church. The constitution of the Church contained a clause to members after the inaugural appointees.

Findings: The proper interpretation of the 2017 constitution leads to the ineluctable finding that the meeting held by the respondents was not properly constituted as it did not comply with the obligatory prescripts of the constitution. Clause 8.2 required appointing two spiritual leaders from KCI-UK to the Board. It stood as an insurmountable obstacle to the respondents. The board remained improperly constituted until the obligation was resolved. The respondents were a group of individuals meeting and not a meeting of the Church Board. As long as the board was improperly constituted, the decisions the group of individuals made had no legal force or effect. The court finds that the board convened by the respondents on 22 June 2022 and the decisions and resolutions taken at that meeting and those taken at the 15 November 2022 meeting are invalid, null and void.

Order: It is declared that the purported meeting of the board of the Church held by the first to third respondents was invalid and a nullity and that all decisions and resolutions adopted at that meeting are invalid and null and void. It is declared that all decisions and resolutions adopted at the purported meeting of the board of the Church on 16 November 2022 are invalid and null and void.

Facts: The plaintiff is a 70-year-old female veterinarian. She leased business premises from the defendant, a dentist, for purposes of conducting a veterinary clinic. In terms of the written lease agreement, the defendant as the owner of the leased property was responsible for the repair and maintenance of the leased property, including the gate. The plaintiff alleges that the metal sliding gate in the leased property fell on her, causing her bodily injuries. She is claiming damages in the amount of R1,182,500. The plaintiff’s claim is found in delict. The defendant in his plea admitted that he owed a legal duty of care to the plaintiff and persons entering the premises through the gate. It was his duty to ensure that they were not exposed to the risk of injury. The duty of care is therefore not in dispute. The defendant denied that the incident occurred as a result of his failure to maintain the gate.

Application: The plaintiff instituted a delictual claim for damages against the defendant in respect of injuries she sustained when a metal sliding gate allegedly fell on her at her rented premises. The parties agreed that the matter will proceed on merits only in terms of Uniform Rule 33(4) with quantum to stand over. The question before the court is whether the defendant is in breach of his duty of care for failure to maintain the gate of the leased property causing the alleged injury to the plaintiff.

Discussion: On the proven facts elicited from the evidence of the plaintiff, her former employee Mrs Berker-Smit and the defendant himself, it has become clear that the remote had not been working properly from 2015. The defendant is the one who instructed the plaintiff to lift the flap on the motor to change the gate from automatic to manual whenever the remote control was not working. She would then push the gate manually to open for her clients. The motor was never changed nor was there any repair work done on the gate and motor. It is clear from the evidence of the defendant that despite all the interventions and attempts to fix the issue, the problem still persisted until the date of the incident in 2020. The plaintiff’s counsel contended that the defendant knew that the gate was the only entrance to the plaintiff’s clinic and yet he failed to find a permanent solution. His evidence, therefore, that there was no maintenance required on the motor and the gate cannot stand as it is contrary to facts placed before the court. The defendant acknowledged that the act of overriding the motor put the plaintiff at risk of injury. The defendant should have reasonably foreseen the possibility that his failure to maintain the gate, and the opening of the gate manually, could result in injury to the plaintiff and he should have taken reasonable steps to guard against such occurrence. A reasonable inference can be drawn that the reason for the gate falling was because it was in a state of disrepair and due to the malfunctioning gate motor.

Evidence of harm or injury: Having found that the defendant’s failure to maintain the gate caused the gate to fall, the plaintiff, to succeed with her claim for damages must still prove on a balance of probabilities that she suffered injuries as a result of the gate falling. The evidence of the plaintiff was that that she sustained injuries to her left shoulder, left hip and left lumbar region, that her foot was stuck under the gate, and that she had to crawl on her hands and knees from underneath the gate. Mr Bauer who saw the plaintiff after the incident confirmed that the plaintiff was distraught. The plaintiff’s counsel contended that the parties agreed to a separation of merits and quantum, thus no evidence was to be led by the plaintiff as to the injuries she sustained and the sequelae thereto. The court disagrees. Separation of liability from quantum does not absolve a plaintiff whose claim is found in delict to prove all the elements of delict on a balance of probabilities. A quantum trial concerns itself with evidence relating to the sequelae of the plaintiff’s injuries and quantification of the plaintiff’s claim, after having successfully established liability against the defendant. The plaintiff only sought medical treatment 11 months after the accident. There are no clinical notes from her treating doctor to show that she consulted with her, even if it was telephonically as alleged. The plaintiff failed to prove the prerequisite element of harm required for a delictual claim.

Order: The plaintiff’s claim is dismissed.

BHENGU AJ

Facts: Mr Ndobe (plaintiff) was employed by Gibela Rail (defendant) when disciplinary proceedings were initiated against him for gross negligence in 2019 following his refusal to follow the instruction of his line manager, Mr Bambo. Mr Bambo sought input from the plaintiff's former line managers, Ms Modiba and Mr De Marcellus to compile evidence. Mr De Marcellus compiled a report entitled “Rodgers Management of Design Group”. The report was incorporated into the package of documents that Mr Bambo utilised to present the defendant’s case against the plaintiff at the disciplinary hearing.

Claim: An action for defamation where the plaintiff is seeking R5 million in damages from the defendant. The plaintiff avers that the report was published and distributed amongst the defendant’s management personnel and leaked to other employees of the defendant in a clandestine manner. This was done “unlawfully” as the report was confidential, defamatory and contained incorrect information. It is argued that the plaintiff’s integrity and reputation were harmed because of the report's distribution and publication.

Discussion: The heading of the report indicates that the focus of the report is on the plaintiff’s management of the Design Group. The defendant acknowledges that the heading was inaccurate, as the plaintiff was not responsible for managing the project. The report communicates that the project experienced delays from inception as a consequence of the plaintiff’s “bad management”, resulting in losses of R6,8 million. The report would be understood by a reasonable person of ordinary intelligence to convey a meaning defamatory of the plaintiff. The question is whether there was publication of the report. The disciplinary hearing was held over three days and the plaintiff testified that Mr Bambo distributed the report to all attendees. Mr Bambo testified that he had brought four copies of the report to the disciplinary hearing.

Findings: Distributing the report to the participants at the disciplinary hearing does not constitute publication for purposes of the defamation claim. The plaintiff is suing the defendant vicariously for the actions of its employees or representatives at the disciplinary hearing. The report was distributed to only four people. Mr Bambo was the purported publisher, therefore, the retention of a copy for himself does not constitute publication for defamation purposes. The distribution to the plaintiff is not publication for defamation purposes either. Mr Mashiane represented the Human Resources Department as the custodian of the disciplinary process on behalf of the defendant. And the chairperson of the hearing received the report in the exercise of powers that are conferred to her by the Labour Relations Act 66 of 1995 on the employer. A distribution of the report to another representative of the defendant on behalf of the defendant (the chairperson and the HR representative) can thus not be considered publication for the purposes of the defamation claim. Even if there was publication, it was done during a privileged occasion and therefore not wrongful. The qualified privilege is applicable to legal proceedings that include disciplinary procedures. The disciplinary hearing was a privileged occasion and the report was pertinent and essential for the purposes of the hearing.

Order: The action is dismissed with costs on Scale B.

WINDELL J

Facts and issue: The applicant is seeking a prohibitory and mandatory interdict against the respondents. The applicant contends that the respondents are misleading the public, since they are operating under its name and collecting funds from the public, in that guise. Thus, the applicant is seeking the return of keys to the building currently occupied by the respondents as a church, books of account as well as money which has already been collected by the respondents.

Discussion: While admitting that they are members of the applicant, the respondents assert that they are congregants of the offshoot or one of the branches of the applicant, the Carltonville branch. They admit that because they receive money from the public, they approached the bank and presented a constitution to them. As a result, a bank account of their own was opened. The constitution they presented to the bank is their own constitution that they drafted. The bank account that they opened, is operated by them in total exclusion of the applicant. The applicant relies on ownership of the immovable property, from where the respondents are worshiping as establishing a clear right. The tittle deed in its assertion, is a clear indication of the property rights the applicant has. That the applicant is a NPO is not disputed. The applicant has established that the property rights vest on it. The respondents even though they are members of the local committee of that church, are not the property right holders in respect of that property, that much is indirectly admitted by them.

Findings: A clear right has been firmly established. That the respondents presented their own constitution to the bank, which they admit was drafted for expediency; opened a bank in the name of the applicant; collected money into that bank account but did not forward money collected to the applicant and incurred but did not pay municipal services which were paid by the applicant is harmful to the applicant. All the mentioned factors either individually or cumulatively viewed, establish a case for apprehension of harm. The harm is in fact ongoing. The applicant is left with no other remedy to resolve the dispute. The requisites for a final interdict have been established.

Order: The respondents are interdicted from operating under the name of the applicant and collecting funds from any person under the guise of the applicant. the respondents are directed to return the applicant’s books, keys to the church and funds of the applicant to the applicant and furnish the entire banking account records from the inception of the bank account to the applicant.

Facts and issue: The plaintiff brought an application for default judgment alleging that the plaintiff had suffered pecuniary loss due to the defendant's actions of taking possession of the site, refusing or failing to return same to the plaintiff, and refusing to compensate the plaintiff. The parties, in their respective capacities as a licenced retailer and licenced wholesaler, entered into a written franchise agreement. Mnaka sought to sell the business operations subject to Engen's approval of the buyer. Engen approved the terms of the sale of the business agreement between Mnaka and a buyer.

Discussion: Before signing the agreement between Mnaka and the buyer, Engen demanded that Mnaka hand over the site to it. The site's operations came to a halt. Mnaka received no payments for the selling price and the stock on hand. Engen had not compensated Mnaka for the loss of business and sale, nor was it for the value of the stock on the day of the handover. Summons was served on Engen. Engen's failure to enter an appearance to defend the matter prompted Mnaka to seek leave from the court to apply for default judgment in terms of Rule 31 of the Uniform Rules. The evidence established that summons was properly served upon Engen by the sheriff. Engen did not file a notice of its intention to defend. To that extent, Mnaka was entitled to approach the court for a default judgment without serving upon Engen a notice of setdown of the default judgment application.

Findings: The premature handing over of the site to Engen was not due to Mnaka's negligence. Mnaka believed it was necessary to expedite the process of concluding the sale of the business agreement. When it learned that Thrive had been advised not to communicate with them further and not to sign their proposed agreement, the site had already been handed over to Engen, the franchisor. There is no evidence suggesting Mnaka acted recklessly or negligently. Engen's demanding the premature handover to itself instead of Thrive induced Mnaka to act the way it did, thereby causing harm to Mnaka. That conduct resulted in Mnaka losing the sale and stock prices as Thrive did not sign the agreement and never made payment. Engen made demands to Mnaka, which were intended for Mnaka to act upon. Mnaka did act upon such demands. Such demands were not warranted in terms of the agreement, and same caused Mnaka to suffer pure economic loss.

Order: The application for default judgment is granted. Engen is to pay R6.8 million and R500,000 to Mnaka with interest at the legal rate calculated from the date the summons was served on Engen to the date of final payment.

Facts and issue: In August 2024, this court granted an interim order against the respondent. The applicant now applies for a final order interdicting and restraining the respondent from making, disseminating or publishing any false, defamatory allegations regarding the applicants or any of the functionaries or employees of the first applicant, Nelson Mandela University (NMU), either directly or indirectly. The respondent, a former student of NMU, has engaged in a smear campaign of publishing and distributing abusive and defamatory statements regarding NMU, the second applicant, and the office bearers and employees of NMU over an extended period of time.

Discussion: It is the applicants’ case that the statements are false and defamatory of the applicants. It is furthermore submitted that it has the consequence of inciting racial division and instability on the campus. According to the applicants, the respondent’s actions manifested in many ways, including but not limited to the sending of derogatory threats and emails to staff members and defaming NMU. Various harmful, defamatory and threatening statements were made by the respondent on social media platforms and emails were circulated by the respondent to various individuals at NMU, including but not limited to the second applicant. Remarks include the allegation that the second applicant is a ‘weak leader’, a ‘weak VC’, ‘a coward’ and an ‘Ugly non-progressive Vice Chancellor’.

Findings: The respondent’s affidavit is riddled with hearsay and very little of substance has been conveyed as to the alleged truth of the statements published by him. He persisted in his view that the information conveyed by him was the truth. This, however, do not explain the repeated insults and threats that was voiced against the applicants. These comments and remarks are inexcusable and by no means can be seen as the ‘truth’ or ‘in public interest’. The respondent did convey the information complained about and that publication took place. The respondent had the intent to injure the reputation of the applicants. The respondent has failed to prove, on a balance of probabilities, that the statements are either the truth, or in public interest. The applicants have met the requirements for final interdictory relief.

Order: The interim order granted on the 2 August 2024 is made final.

Facts: Latari House (plaintiff) operated two establishments in central Cape Town, namely Hanks Olde Irish Pub (Hanks) and Love Thy Neighbour (LTN). The second and third plaintiffs are brothers and were co-owners. At about 23h00 on an evening in December, Mr Kalenga was on duty as a doorman at the premises. Mr Danca appeared to be inebriated and wanted to enter the premises. Mr Kalenga was unsure whether Mr Danca was of legal age to enter the premises and requested him to remove his cap and to produce his identity document to verify his age. Mr Danca became aggressive and made racial and xenophobic statements to Mr Kalenga within hearing distance of other people in proximity. The next day a group of about six persons, including Mr Logan (third defendant), entered the premises. Mr Logan began yelling words to the effect that the establishment was racist because of the incident. This was recorded on a cellphone by one of the group and ended up on various mainstream online news platforms, as well as YouTube. Mr Logan took centre stage in the videos and articles as Mr Danca’s protector and in denouncing the plaintiffs.

Claim: An application for default judgment following the institution of a defamation action. The plaintiffs seek damages against Mr Logan. The progress of the litigation between the Mr Kalenga and Mr Danca and Mr Pelser is not relevant for present purposes.

Discussion: It seems that Mr Logan and his group were not interested in the truth but their motive and conduct were to make the incident as sensational and emotionally laden as possible so that the video they were recording of the incident could go viral on social media. The result of the debacle was, unsurprisingly, a severely negative response from the public, including protests by, amongst others, members of the Economic Freedom Fighters outside the first plaintiff’s premises for an entire day soon after the event. Threats of violence were made against the plaintiffs. The cell phone video went viral on social media and there was a public outcry against the plaintiffs. The plaintiffs feared for their safety and that of their employees and patrons, and were scared, too, of damage being caused to the premises. They decided to close the businesses for a period over Xmas and New Years which was one of the busiest trading periods for the business in general.

Findings: It is clear that, as a result of the publication of the statements, the plaintiffs were severely embarrassed and publicly degraded. The plaintiffs’ demeanor in the witness box confirmed the damage done to them. They were injured in their names, reputations and standing in the community, and were (and still are) liable to be treated with severe aversion, suspicion, distrust and hostility. They have been, and will be, prejudiced in their professional and private endeavours, and it is unlikely that they will ever fully recover their respective reputations. Because of the defamatory statements and the repeated publication thereof, and the subsequent closing of Hanks and LTN, there has been a sharp decline in income. The plaintiffs both testified as to the troubles experienced in the business since the incident because of the fact that the establishment is now regarded as racist.

Order: Mr Logan shall pay: R500,000 to Latari House as special damages; R250,000 to Latari House as general damages; R250,000 to Viron Papadakis as general damages; R250,000 to John Papadakis as general damages; and interest and costs of suit on the scale as between attorney and client.

VAN ZYL AJ

Facts: The court is tasked with determining who should bear the loss after emails appeared to have been fabricated and the payment of the purchase price under a sale of immovable property was not made to the sellers of the property nor to the conveyancers. Instead, payment was made into the bank account of Joseph Nkomane, who held a “Pay as You Use” account with Nedbank. The plaintiffs have alleged that given that Mr Nkomane was unemployed; not a provisional taxpayer; had no steady monthly income or source of wealth, Nedbank owed them legal duties. Such duties included to impose and monitor transactional limits on Mr Nkomane’s bank account and have regarded the large deposits in Mr Nkomane’s account as unusual or suspicious. In addition, the plaintiffs allege that bearing in mind the legal duties referred to, Nedbank was aware or ought to have been aware that the account was being used to commit fraud or that there was a reasonable suspicion that the account was being used to commit fraud and owed a duty of care to the plaintiffs, as owners of the funds deposited into the account, not to allow withdrawals from the account.

Application: Mr and Ms Ross claimed payment of the amount of R1,663,400 together with interest from the date of summons to date of payment and costs from Nedbank. The plaintiffs allege that Nedbank negligently breached their legal duties and this caused them pure economic loss.

Discussion: Ms Ross transferred an amount of R2,8 million into the bank account, but the account in question was not the trust account of NDBV Inc or Ross & Jacobs Attorneys. Instead, the account that received the R2,8 million was that of Mr Nkomane. Ms Ross transferred a further amount of R140,000 into the account. Ms Ross was advised by her daughter that the NDBV Inc account did not receive the payments of R2,8 million and R140,000. Standard Bank notified Nedbank that the payments into the account were pursuant to a fraud. Nedbank then froze Mr Nkomane’s account. Nedbank managed to recover an amount of R843,000 and this was paid over to the plaintiffs. Capitec also paid the plaintiffs the amount of R433,600, which it managed to recover after it was notified of the alleged fraud. Nedbank disputes that the payment of the amount of R2,940,000 into the account was induced by a fraudulent email. Bearing in mind that the plaintiffs and Ms van Vreden (a secretary at Ross & Jacobs Attorneys) had not dealt with Mr Nkomane before and did not know him, the emails must have been intercepted and sent by a fraudster to Ms Ross. Ms Ross therefore was induced by a fraudulent misrepresentation to pay into the account.

Findings: The mere fact that Nedbank is aware of the prevalence of email interception fraud is not sufficient to impose a legal duty on Nedbank. The critical question therefore is whether the statutory duties under the Financial Intelligence Centre Act 38 of 2001 (FICA) also give rise to private law duties on the part of a bank to parties that are not its customers. The breach of a statutory duty, without more, does not give rise to a legal duty. FICA does not expressly recognise a delictual claim for civil damages. FICA was intended for the public good and to deal with the combatting of money laundering activities and the financing of terrorist and related activities. It creates obligations in favour of the State. It does not give rise to private law duties owed to third parties. The plaintiffs were best placed to prevent the risk of payment into the bank account of someone other than NDBV Inc and they are the architects of their own misfortune. The plaintiffs have failed to discharge the onus of proving wrongfulness. The plaintiffs led no evidence to prove their loss. There was also no evidence from the plaintiffs that they did not hold Ross & Jacobs Attorneys liable for their loss, despite the fact that the contentious emails appeared to have emanated from Ms van Vreden’s correct email address. The plaintiffs failed to prove that they suffered a loss as a result of the payments into the account.

Order: The plaintiffs’ claim is dismissed with costs on Scale B, but these costs will not include the costs of Nedbank’s separation application.

MOOSAJEE AJ

Facts and issue: The applicant seeks an order for the return of two vehicles. The applicant and the respondent entered into a written lease agreement. The respondent defaulted on the sale agreement and only two payments were received. The applicant consequently cancelled the sale agreement and demanded return of the vehicles. The respondent in return disputes the cancellation in as far as the respondent alleges that the vehicles were paid in full.

Discussion: The respondent further submitted that the Sale agreement constitutes a common law credit agreement. No reservation of ownership was accordingly agreed upon and ownership transferred to the respondent upon delivery. In considering the alleged ‘payments’ made towards the vehicles, the court is not convinced that the vehicles were paid in full at the time when the agreement was cancelled as alleged by the respondent. The respondent’s argument is purportedly premised on the fact that the vehicles are still ‘registered’ in the names of the erstwhile respective owners, the respondent’s line of argument is rejected. Ownership of a vehicle is after all not dependent on registration thereof at the Licencing Department. The case of the applicant is premised on the rei vindicatio. It must therefore be determined if the applicant was the de facto owner of the vehicles at the time possession was reclaimed from the respondent and thus at the institution of the application.

Findings: As correctly concluded by the applicant, even if all the alleged set-off amounts were entertained, the respondent was still in arrears and the full outstanding balance was not paid in full. A finding that the applicant was not authorised to conclude the initial sale agreement, will achieve the same result. If the sale agreement is rendered void, it follows that the respondent’s possession of the vehicles is unlawful, and it must be returned to the lawful owner. Ownership of the vehicles did not pass to the respondent upon delivery, and the respondent is in unlawful possession thereof. It follows that the applicant must be successful in its claim for the return of the vehicle premised on the rei vindicatio.

Order: The respondent is ordered to forthwith return the vehicles to the applicants.