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.
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.
Ross and Another v Nedbank Limited (10029/2020) [2024] ZAGPJHC 1146 (8 November 2024)
