Mosselbaai Boeredienste v OKB Motors ta Bultfontein Toyota [2024] ZAFSHC 95
CIVIL PROCEDURE – Estoppel – Email interception fraud
Payment in terms of sale agreement for motor vehicle – Special plea of estoppel – Evidence establishing interception of electronic mail at appellant’s electronic mail domain was not proximate cause of payment into incorrect account – Respondent’s dealer principal approved the payment and this proximate cause of payment into incorrect bank account – Bank account details never verified – Respondent acted at its own peril – Appeal upheld – Counterclaim dismissed.
Facts: The appellant instituted action against the respondent for payment of R159,353.76 and interest. The appellant’s claim is premised on a verbal agreement for the purchase of a motor vehicle. The purchase price was due and payable by the respondent to the appellant upon delivery of the vehicle to the respondent. The money was paid into the incorrect account due to email interception and fraud. The respondent failed to pay the purchase price and is consequently in breach of the agreement, therefore the purchase price is due, owing and payable by the respondent to the appellant. The respondent, in response to the appellant’s claim, raised a special plea of estoppel.
Appeal: The court a quo found on a balance of probabilities that the respondent was successful with its defence of estoppel and consequently dismissed the appellant’s claim with costs. The appellant’s appeal against the judgment and order of the court a quo is based on whether the fact that the incorrect invoice was received by the respondent from the electronic mail address, being the electronic mail address used by the appellant, constituted a representation by conduct by the appellant to the respondent that the incorrect account depicted on the incorrect invoice is the appellant’s correct bank account.
Discussion: It is common cause that the respondent did not take any steps to verify or confirm the bank account details as contained in the incorrect invoice before making payment to the appellant. Mr Olivier, dealer principal of the respondent, admitted that he had knowledge of the circular of Toyota South Africa, wherein the dealer’s attention was drawn to similar cybercrime activities. Despite this knowledge, no attempts were made by him or the respondent to verify the bank account details on the incorrect invoice. However, Mr Olivier testified that the said circular was the reason why the respondent handled these things, being payments, with the necessary caution. Mr Olivier did not approve the invoice for payment based on any representation made by the appellant, but based on the representation made by Mrs Steyn, the respondent’s salesperson, namely that she confirmed the banking details and that such details were correct. This version of Mr Olivier, which was accepted by the court a quo, did not rely on a representation by the appellant, but on the representation made to him by Mrs Steyn. This representation by Mrs Steyn induced the respondent to act to its detriment.
Findings: Even if the appellant negligently failed to secure its electronic mail domain, the respondent failed to prove that the negligence was the proximate cause to its action, and the conspectus of the evidence showed that the respondent’s reliance on the representation was not reasonable. If the respondent took the necessary steps, in fact a simple telephone call would have sufficed, to confirm the bank account details stated on the incorrect invoice before payment was made, it would have been informed by the appellant that it is indeed the incorrect bank account details. The court a quo erred by ignoring the respondent’s obligation to have acted reasonably. The court a quo failed to apply the principles regarding the doctrine of estoppel correctly to the facts. The respondent should not have succeeded with the defence of estoppel in the court a quo. The evidence established clearly that the interception of the electronic mail at the appellant’s electronic mail domain was not the proximate cause of the payment into the incorrect account. The proximate cause of the payment was in fact the approval of the payment by Mr Olivier after having been satisfied that the bank account details have been verified. The bank account details were never verified, and consequently the respondent acted at its own peril when the payment was made into the incorrect bank account.
Order: The appeal is upheld with costs. The defendant’s counterclaim is dismissed with costs. Judgment is granted against the defendant in favour of the plaintiff.
BUYS AJ (LOUBSER J and MGUDLWA AJ concurring)
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FAMILY – Children – Relocation – Child aged 11
Mother seeking to relocate child to pursue her professional aspirations – Clinical psychologist report considered – Relocation caused child stress and anxiety – Child verbalized that he does not want to move – Best interests of child standard considered and applied – Forcing child to relocate will not be in his best interests – Forced relocation will negatively impact his relationship with respondent – Application denied.
Facts: The applicant wishes to relocate with the parties’ minor child, a son aged 11, to Ballito at the end of the school term. The Office of the Family Advocate was requested to investigate and make recommendations regarding the best interests of the minor child, in relation to the proposed relocation of the applicant with him. Professor Pretorius, a clinical psychologist, was appointed to investigate and make recommendations regarding the best interests of the minor child.
Application: This is an urgent relocation application. The applicant launched Part B of the application on an urgent basis on the basis that she received a call indicating that there was only one place left in the Afrikaans stream at Curro for the second term which commences on 3 April 2024.
Discussion: The applicant submitted that the legal test for relocation matters is the reasonableness of the decision to relocate and whether the relocating parent’s decision is bona fide. The applicant listed several factors which she considered when considering a relocation to Ballito. There is no doubt that the decision was taken in a thoughtful manner and that the applicant’s decision had nothing to do with creating distance between the respondent and the minor child. The respondent has justifiable reasons for his refusal to agree to the relocation and the court sees nothing to censure the respondent in his dogged refusal to agree to the relocation. It was clear from all the affidavits, the report of Professor Pretorius and even the Family Advocate’s report that this proposed relocation has caused the child enormous stress and anxiety. He has clearly verbalized to both Professor Pretorius and the Family Counsellor as well as both the parties that he does not want to move and wants everything to remain the same.
Findings: If regard is had to the best interests of child standard as set out in section 7 of the Children’s Act 38 of 2005, the inescapable conclusion is that forcing the child to relocate will not be in his best interests. The report of Professors Pretorius report makes it clear that the child is equally bonded to both his parents and forcing him to leave Johannesburg will negatively impact on his relationship with the respondent. Electronic contact and alternate weekends do not make up for the lived experience of seeing both parents weekly. Furthermore, he is entrenched in his school and social circles and disruptions to this, on top of the disruption to his relationship with the respondent, weigh heavily against the reasons for relocation. There is no proof that the applicant cannot pursue her professional aspirations by remaining in Johannesburg and travelling to Ballito when she is required to be there in person.
Order: The application is denied.
LANGE AJ
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Poulter v CSARS [2024] ZAWCHC 97
TAX – Tax Court – Representation of taxpayer
Court held that father of taxpayer not entitled to appear before it – Not legal practitioner but given power of attorney by taxpayer – Characteristics of Tax Court and whether “court of law” – Tax Court having function of administrative tribunal – Role positions it outside judicial system provided in section 166 of the Constitution and not court of law – Tax Court misdirected in refusing to entertain father’s appearance as taxpayer’s representative at hearing of appeal – Appeal remitted to Tax Court for hearing de novo.
Tax Court: The appellant has come on appeal to the full bench from a decision of the Tax Court confirming the “original assessment” of her taxable income for 2018 and ordering her to pay the Commissioner’s costs on the scale as between attorney and client, including the fees of two counsel. The Tax Court’s orders were made without hearing the taxpayer (who did not attend the proceedings in that court) or her father, Mr Gary van der Merwe, who sought audience there as the taxpayer’s authorised representative. The Tax Court held that Mr van der Merwe, who is not a legal practitioner, was not entitled to appear in the Tax Court.
Appeal: The appeal from the Tax Court to this court is brought in terms of section 133 of the Tax Administration Act 28 of 2011 (TAA). The principal points argued by the appellant’s counsel were that the Tax Court had been misdirected in holding that Mr van der Merwe, whose authority to do so was vouched by a power of attorney given by the taxpayer, was not entitled to appear on her behalf in that forum, and that the court in any event had erred in granting what he termed “default judgment” without considering “the evidence” that was before the court. By “the evidence” counsel appears to have meant the content of the dossier provided for in Rule 40 of the Tax Court rules.
Discussion: In CSARS v Van der Merwe [2022] ZASCA 106, a matter in which Mr van der Merwe had applied to appear on his daughter’s behalf in the Supreme Court of Appeal in an appeal from the High Court in another of her tax disputes with the Commissioner, the appeal court held that he did not have the right to appear on her behalf in “a court of law”. See paras [45]-[46] of that case. Whether the Tax Court possesses the discretionary power to permit lay representation in the course of regulating its own procedures depends on whether it is a Superior Court within the common law’s understanding of the concept, ie a court with inherent jurisdiction to regulate its process and procedure and develop the common law.
Findings: The characteristics of the Tax Court, assessed in the light of the jurisprudence, impel the conclusion that its function is essentially that of an administrative tribunal. The fact that it has been established as a “court” and that it is called upon to discharge its functions in a judicial manner, and appropriately constituted to be able to do so, do not negate its role essentially as an administrative-decision maker. That role positions the Tax Court outside the judicial system provided in section 166 of the Constitution and confirms that Tax Courts are not courts of law. There is nothing in the regulations to suggest that the references in them to a taxpayer’s representative must be interpreted as being limited to a person admitted as a legal practitioner. Experience tells that in the past taxpayers have often been represented in proceedings before a Tax Court by an accountant or similarly qualified tax practitioner rather than a legal practitioner. The Tax Court was misdirected in refusing to entertain Mr van der Merwe’s appearance as the taxpayer’s representative at the hearing of the appeal.
Order: The appeal is upheld with costs. The order made by the Tax Court in terms of Rule 44(7) of the Rules made in terms of section 103 of the Tax Administration Act 28 of 2011 is set aside. The appellant’s appeal to the Tax Court in terms of section 107 is remitted to that court for hearing de novo on a date to be determined by the registrar of the Tax Court.
BINNS-WARD J (NUKU J and SLINGERS J concurring)
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