The basis of the respondent’s opposition to the order sought was that the funds appearing to be due to the appellant in the
said accounts were part of certain funds which had been fraudulently acquired by the appellant in a “massive fraud” which
had been ongoing within the respondent’s institution involving the appellant and certain other members of respondent’s
staff. The head of the respondent’s Management Services Operations also deposed to the fact that the funds which the appellant
sought were directly linked to fraudulent transactions which the appellant had perpetrated against the respondent and its customers.
In support of that allegation the respondent filed a report of its Internal Auditor from which, it appears that the appellant is
alleged to have defrauded the respondent of the sum in excess of E341 299 34. It was to that fraud that the funds sought by the appellant
are alleged by the respondent to be linked.
The learned Judge a quo, Annandale J, found that the appellant’s claim was in the form of a “rei vindicatio”. He stated that the authorities show clearly that the legal position of money held by the bank in the account of its customer is that
the money vests in the bank and not in the customer. Consequently the learned Judge found that this negated the prime requirement
of a vindicatory action namely that the ownership of the res sought to be recovered must vest in the application seeking restoration. On that basis he found that the credit balances could not
be claimed by a rei vindicatio and accordingly dismissed the application with costs. It is against that order that the appeal has been brought before us.
As I have already pointed out, the appellant, in his founding affidavit, alleged that in terms of the agreement between him and the
bank he was entitled to withdraw funds whenever there was a credit balance in his accounts. In its answering affidavit the respondent
stated that the correct nature of the relationship between the parties was that of customer/banker in terms of which the respondent
bank undertook to pay any funds legally due, owing and payable by the respondent to the appellant. I have emphasized the phrase since in his replying affidavit the appellant agreed with it stating,
“I…agree that I was respondent’s employee and that respondent was supposed to pay on demand any funds legally due,
owing, payable to myself from time to time, and the funds held in these accounts fall within this category”. It seems clear
therefore that on the affidavits filed of record there is a dispute between the parties which cannot be determined until the parties
have given evidence in support of their respective versions. The dispute is simply this. The respondent has said on oath that the
appellant has defrauded the bank of a very large amount (far in excess of the claims made by the appellant) and that this appears
and is fully explained in the report already referred to. The respondent states further that the funds which the appellant now seeks
to acquire are directly linked to the fraudulent transactions to which I have alluded above. In reply thereto, and in reference to
the report upon which the respondent relies, appellant stated that those annexures are disputed and denies that he ever committed
any fraud. Mr. Mabila, who appeared for the appellant, strenuously argued that the allegation that the appellant was not legally
entitled to the amounts shown in appellant’s accounts was a bald allegation and that therefore it did not raise a bona fide dispute of fact. There is in my opinion no substance in this submission. The report refers to certain customers of the respondent
who assisted the appellant and certain other employees in carrying out the fraudulent transactions referred to and further sets out
five methods which were allegedly used in committing the frauds. There is also the following paragraph included in the respondent’s
answering affidavit:-
“This fraud was discovered by an official of the respondent during October/November 2000. Upon discovery of the ongoing fraud
the applicant and other staff members allegedly involved simply disappeared from their place of employment and have not been seen
since. I am advised and verily believe that the appellant has been formally charged with theft and fraud by the Royal Swaziland Police
and the matter is pending before the courts”.
In his reply, the appellant states,
“Save to admit that I have been charged with fraud (which offence I deny and shall plead not guilty thereto) contents of this
paragraph are vehemently denied. It is worthy noting (sic) that the said contents are mere speculation without support of any facts
or sources thereto”,
Why it is “mere speculation” to allege that the applicant and other staff members disappeared from their place of employment
and have not been seen since is difficult to understand. In my view, the failure to deny that allegation means that on the papers
as they now stand there are clear statements of fraudulent conduct by the appellant as well as evidence of conduct which is susceptible
to the inference that the appellant knew that he was involved in transactions adverse to the interests of the employer, the respondent.
That conduct also gives rise to what in my judgment is a clear inference namely that when the application was brought, the respondent
must have known that his right to the money would be disputed and that the dispute would be based on allegations of fraudulent conduct
on his part.
In accordance with the oft-cited judgment in ROOM HIRE CO. (PTY) LTD V JEPPE ST MANSIONS (PTY) LTD 1949(3) SA 1153 this was a proper case for dismissing the application leaving it to the appellant, if he sees fit, to pursue his remedy by instituting
an action. As that, in any event, is the effect of the judgment in the court a quo, it is only necessary for me to order, as I do, that the appeal is dismissed with costs. As the two appellants’ interests are
identical the order applies to both.
____________________
J. BROWDE
Judge of Appeal
P.H. TEBBUTT
:
I AGREE
____________________
P.H. TEBBUTT
Judge of Appeal
C.E.L. BECK
:
I AGREE
____________________
C.E.L. BECK
Judge of Appeal
Delivered in open court on the November 2001.
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