Couple ordered to pay back money
• High court judges overturn earlier ruling that FNB had no claim to R862,000 in duplicate payments
A KwaZulu-Natal couple has been ordered to repay R862,000, which was deposited into its accounts because of a First National Bank app “malfunction”.
A KwaZulu-Natal couple have been ordered to repay R862,000 which was deposited into their accounts because of a First National Bank (FNB) app “malfunction”.
In a ruling on Friday, KwaZulu-Natal high court judge Trevor Gorven in a concurring judgment said the story proffered by Sicelo and Nikita Khopho that they had returned the money, in cash, to a bank manager who had since died was “highly improbable”.
The matter came before three judges on appeal after an acting judge absolved the pair of any wrongdoing and ruled that the bank had no legal claim against them.
Gorven said Sicelo had operated both his and Nikita’s FNB bank accounts, making use of the bank’s app.
Between November 2011 and March 2013, the app “malfunctioned”, according to FNB. This meant that when certain customers transferred money from one account to another, the payments were “duplicated ”— with the additional amounts coming from the bank’s own account.
The pair, either wittingly or unwittingly, made several transfers to each other and their Capitec bank accounts in their own names during this period.
The bank sued, alleging “unjustified enrichment”. While the Khophos denied having knowledge of the malfunction or that there had been a duplication of payments, they abandoned this defence at trial and admitted they had received the money.
Sicelo alleged that he had given the cash to a Kokstad branch manager, a certain Mrs Thomas, who later died.
He could not say how much he had given her because he was unable to draw all of the cash from the ATM and on what date this occurred. He said he received no paperwork “because he trusted her”.
He said that when he approached Thomas she could not “trace the payments” and she suggested keeping the money in the safe, in case a claim was made. She entered the amounts into a diary, he alleged.
“This document remains shrouded in mystery,” Gorven said. “It never formed part of the pleadings and was never introduced as an exhibit.”
The trial judge, however, accepted Sicelo’s evidence as being credible and ruled that there had been no “unlawful enrichment” because the money had been repaid. This ruling was wrong, Gorven said.
“There are several inherent improbabilities in Khopo’s version. No prudent bank manager would have taken cash from a client without giving a receipt.
“If she had noted it in a diary, that would have been an official document, kept in a safe place and never destroyed. There would have been a proper investigation.
“Further, his version that he drew out the ‘duplicated’ amounts is not borne out by the bank statements.”
Gorven commented on the fact that Sicelo had only raised this version when he stepped into the witness box, knowing that Thomas had since died.
While the bank had initially alleged the pair had committed fraud, “no such case was made out”. He ordered that the couple repay amounts of R541,940 and R320,000, plus interest, and pay the bank’s legal costs.