Bank employee accused of aiding imposter in R2.2 million scam

A Nedbank “service specialist” based at the bank’s Krugersdorp branch who allegedly assisted an imposter in withdrawing almost R2.2 million from an account of one of the bank’s clients has had a sequel in the High Court in Johannesburg.

Nedbank alleged that Elsabie Jacobs, who the bank employed at the branch, issued a bank card on 29 December 2021 to an individual impersonating one of its account holders.

The bank further alleges that on 30 December 2021, at the request of the imposter, Jacobs changed the cell number registered against the account and increased the withdrawal limit on the account.

As a result of this, the imposter was able to withdraw R2 191 901.75 from the account.

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Nedbank said R866 062.21 of this was later recovered, leaving the bank liable to the account holder for the remaining R1 325 839.54.

In its high court application, Nedbank is seeking to recover that amount from Jacobs because the bank claims Jacobs was “either a party to the imposter’s fraud, or she negligently allowed it to take place”.

The essence of Nedbank’s negligence claim is Jacobs’s alleged failure to adhere to the strictures of the bank’s employee code of conduct, which set out the procedures to be followed when making the various changes to a customer account that were carried out by her.

Default judgment

Nedbank applied to the registrar of the high court for a default judgment in an action that was not defended by Jacobs.

The case was heard on 9 November 2023 by Judge Stuart Wilson, who refused the application for default judgment and indicated that he would provide his reasons for his judgment if requested.

In the reasons for his judgment, Wilson said on Friday (12 January) that Nedbank’s attorney appears to have applied for reasons from the registrar on 21 November 2023, but the registrar only brought the application for reasons to his attention on 11 January 2024.

Wilson said one of the Uniform Rules of the high court makes clear that a default judgment can only be granted without the presentation of evidence where the claim is one for a “debt or liquidated demand”.

He said there is a disagreement in the cases about the meaning of the term “debt or liquidated demand” for the purposes of this rule.

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But Wilson said in the context of judgments for the return of stolen money, it has been held that the person bringing the case need only establish that the claim is for a definite or easily ascertainable sum, and there is no need to show “sufficient proof” that the defendant (Jacobs) is actually liable to the plaintiff (Nedbank) to return the stolen amount.

However, Judge Wilson said it has also been held that such a claim is only liquid if there is “some further element showing, at any rate, prima facie that the sum of money is due to plaintiff from defendant”.

Wilson said he is inclined towards the view that a debt or demand is only liquid if an unambiguous foundation is laid for the proposition that it is actually due.

Otherwise, any amount that has been calculated with sufficient particularity on the face of a combined summons would count as a liquidated amount capable of being awarded by default without the presentation of evidence, he said.

Wilson added that where a default judgment is sought without the presentation of evidence, “I do not think that there is an uncomplicated line to be drawn between the nature of the claim and the liquidity of the amount for which judgment is sought”.

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He said default judgment is especially suited to claims on documents that evidence a well-defined commercial relationship between the parties, such as a loan, adding that the more unusual or factually complex a claim is, the less inclined a court will be to grant it by default without the presentation of evidence, even if the amount claimed is technically liquid on its own terms.

Two claims

Wilson said in this case, Nedbank pleaded two claims in the alternative.

He said the first is that Jacobs was party to the fraud, and the second is that she was negligent in failing to prevent it and that she breached her duty of care to Nedbank in failing to follow the required procedures in issuing the bank card and making changes to the account holder’s cell phone number and withdrawal limit.

“There are no facts in evidence that would allow me to determine which of these two cases Nedbank wishes to advance,” said Wilson.

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“If Nedbank cannot say what its case really is, it seems to me that it has not established that the debt it claims is due.

“It was for these reasons that I refused the application for default judgment.

“The effect of my decision is not to bring Nedbank’s action to an end,” he added.

“It is merely that Nedbank must lead evidence of the debt and its due.

“If the facts alleged in its particulars are even remotely true, Nedbank should have little difficulty in doing so.”

This article was republished from Moneyweb. Read the original here