REPUBLIC OF NAMIBIA HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK JUDGMENT Case No: HC-MD-CIV-ACT-CON-2017/01020 In the matter between: FIRST NATIONAL BANK OF NAMIBIA LTD PLAINTIFF and LE-ALDO DU PREEZ DEFENDANT Neutral Citation: First National Bank of Namibia Ltd v du Preez (HC-MD- CIV-ACT-CON-2017/01020) [2019] NAHCMD 360 (06 September 2019) CORAM: PRINSLOO J Heard: 16-17 and 18 April 2018; 4-6 June 2018; 16-17 October 2018; 28 October 2018; 01 April 2019 and 5 June 2019.
Transcript
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case No: HC-MD-CIV-ACT-CON-2017/01020
In the matter between:
FIRST NATIONAL BANK OF NAMIBIA LTD PLAINTIFF
and
LE-ALDO DU PREEZ DEFENDANT
Neutral Citation: First National Bank of Namibia Ltd v du Preez (HC-MD-CIV-ACT-
CON-2017/01020) [2019] NAHCMD 360 (06 September 2019)
CORAM: PRINSLOO JHeard: 16-17 and 18 April 2018; 4-6 June 2018; 16-17 October 2018; 28 October
2018; 01 April 2019 and 5 June 2019.
Delivered: 06 September 2019
Reasons: 30 September 2019
Flynote: Law of delict – All five elements of delict must be present before the
conduct complained of may be classified as a delict – Damages suffered by the plaintiff
as a result of the wrongfuly and intentionally stealing and appropriation or
embezzlement of monies owned by the plaintiff, alternatively monies owned by clients of
the plaintiff.
Summary: The plaintiff, First National Bank of Namibia Ltd, is suing the defendant, a
former employee, in the amount of N$ 39 200, of which N$ 3 015.32 was recovered,
resulting in a balance of N$ 36 148.68. The plaintiff’s claim against the defendant is
based in delict alternatively in contract. The plaintiff pleads that the defendant wrongfuly
and intentionally, in the alternative wrongfully and negligently appropriated or
embezzled or stole monies owned by the plaintiff, alternatively monies owned by clients
of the plaintiff by, inter alia, making unauthorised cash withdrawals and fabricating
withdrawal slips, fabricating account entries and by generally failing to follow prescribed
due diligent procedures within the structures of the plaintiff.
Held that the evidence of the plaintiff’s witnesses made a favorable impression on the
court. The evidence was given in a clear and concise manner, and where necessary,
the witnesses made the appropriate concessions. Their evidence did not contain any
inconsistencies or inherent contradictions.
Held further that the defendant appeared to be a confident witness but he was not
truthful in many respects. He was in some instances an argumentative witness who
tailored his answers to suit his case. Interestingly, when it suits the defendant he
appeared to be extremely knowledgeable regarding certain aspects of the working of
the bank yet when the shoe started to pinch the defendant would feign ignorance.
Held further that this is one of those matters where the defendant appears to be very
self-confident and convincing when he testifies until one considers the evidence more
closely and it becomes apparent that the version of the defendant is absolutely fraught
2
with inconsistencies and improbabilities. In light of the issues discussed the defendant’s
version stands to be rejected
ORDER
Judgment is granted in favor of the Plaintiff in the following terms:
1. Payment in the amount of N$ 36 148.68;
2. Interest on the aforesaid amount at the rate of 20 % per annum a tempore morae
from date of judgment to date of final payment thereof;
3. Cost of suite, such cost to include one instructing and one instructed counsel.
On the counterclaim:
4. Counterclaim is dismissed with cost, such costs to include one instructing and
one instructed counsel.
JUDGMENT
PRINSLOO J
The parties
[1] The plaintiff, First National Bank of Namibia Ltd, a public company with limited
liability, duly registered in accordance with the applicable company laws of the Republic
of Namibia, is suing the defendant, a former employee, who was employed during 2013
to 2014 at its Rundu Branch.
3
The pleadings
[2] The plaintiff claims payment in the amount N$ 39 200, of which N$ 3 015.32 was
recovered, resulting in a balance of N$ 36 148.68.
[3] In addition thereto the plaintiff claims interest a tempore morae at a rate of 20%
per annum and cost of suit, on a scale as between attorney and own client, including
the cost of one instructing and one instructed counsel.
[4] The plaintiff’s claim against the defendant is based in delict alternatively in
contract.
[5] In its principle claim the plaintiff pleads that on 17 September 2014 the defendant
wrongfuly and intentionally, in the alternative wrongfully and negligently appropriated or
embezzled or stole monies owned by the plaintiff, alternatively monies owned by clients
of the plaintiff by, inter alia, making unauthorised cash withdrawals and fabricating
withdrawal slips, fabricating account entries and by generally failing to follow prescribed
due diligent procedures within the structures of the plaintiff.
[6] In the alternative, the plaintiff pleaded that in the event the court finds the
plaintiff’s claim against the defendant is circumscribed by the terms of the employment
agreement concluded between the parties, and as a consequence precludes the
plaintiff’s reliance on the main claim, then the plaintiff pleads that the defendant was
employed by the plaintiff as a teller and as a result of the employment relationship the
defendant was prohibited from appropriating, embezzling or stealing for his own use,
money owned by the plaintiff or of its clients. The defendant was further required to take
the necessary measures to avoid financial losses being suffered by the plaintiff or its
clients and had to adhere to the plaintiff’s policies, procedures, working manauls and
code of ethics.
4
[7] The plaintiff further pleads that as a result of the employment relationship existing
between the parties, the defendant was under obligation to:
(a) Avoid abusing his position or knowledge gained through employment with the
plaintiff for private or personal gain;
(b) Act in the plaintiff’s best interest and further the plaintiff’s business interests;
(c) Maintain the highest level of integrity; and
(d) Refrain from misconduct generally.
[8] It is further pleaded by the plaintiff that as a result of the defendant’s fiduciary
duty he was obliged to adhere to the concomitant duties and responsibilities and
required to act in utmost faith, alternatively good faith.
[9] The plaintiff pleads that during the currency of the defendant’s employment with
the plaintiff he breached his duties and obligations as set out above, by conducting
himself in the manner as pleaded to above in the principal claim and as a result of this
breach of the defendant’s obligations/duty of care/fiduciary duties, the plaintiff suffered
damages in the amount of N$ 36 148.68.
[10] The defendant however denied any wrongdoing on his part and pleaded that
during his employment with the plaintiff his passcode or password was sent via e-mail to
his supervisor, who subsequently handed it to him. The defendant pleaded that his
password was consequently compromised, which led to the loss of N$ 36 148.68.
[11] The defendant further pleaded that after his arrest in October 2014 he pleaded
not guilty and persisted with his stance that he did not appropriate, embezzle or steal
money owned by the plaintiff, alternatively its clients, and pleaded that in addition
thereto he complied with the terms of his employment agreement and fulfilled his duties
and obligations. The defendant also pleaded that he always excersiced a duty of care
5
towards the plaintiff and its clients and consequently never breached his fiduciary duties
owed to the plaintiff.
[12] The defendant also filed an amended counterclaim against the plaintiff claiming
damages in the amount of N$ 100 000 for damage suffered to the defendant’s
reputation as a result of his arrest and detention, which was in turn as a direct result of
the plaintiff’s initiation and subsequent attempt to have the defendant prosecuted,
without reasonable or probable cause. Defendant pleads that his arrest was widely
publicized in the local media which caused the defendant to be no longer eligible to
work in the banking industry or elsewhere. The defendant pleaded that the criminal
charges were provisionally withdrawn, however that position apparently changed as the
charges were reinstated against the defendant.
Issues for determination
[13] In repect of the principle claim: Whether the defendant wrongfully and
intentionally, alternatively wrongfully and negligently appropriated or embezzled or stole
monies owned by the plaintiff, alternatively monies owned by the clients of the plaintiff
by inter alia making unauthorized cash withdrawals and fabricating withdrawal sips,
fabrication entries in the books of account of the plaintiff and by generally failing to
follow prescribed due diligence procedure within the structures of the plaintiff.
[14] Alternatively, wherther during the currency of the defendant’s employment with
the plaintiff he breached his duties and obligations resulting in damages to the plaintiff
or it clients.
Plaintiff’s case
[15] The plaintiff called three witnesses in this matter, namely:
(a) Collin Germanus Schuster;
6
(b) Annelie Derks; and
(c) Melt Van Schoor.
Collin Germanus Schuster
[16] Mr Schuster is employed by the Plaintiff and was stationed at the Rundu Branch
during 2014. During the time period relevant to the matter before court Mr Schuster was
employed as the supervisor of all tellers and therefore by implication also the supervisor
of the defendant.
[17] In his capacity as supervisor Mr Schuster has access to and control of certain
records, registers and documents of the bank and its clients relevant to and in
connection with this action.
[18] Mr Schuster testified that during October 2014 there was a sudden change in the
behavior of the defendant which triggered a surprise cash check-up in the branch and
that included the till of the defendant. As there were a number of tellers, specific
officials were allocated to check the respective tills of the tellers. The till of the
defendant was checked by one Mr Bampton.
[19] During the cash check-up, which was conducted on the 9 th of October 2014, it
was discovered that the defendant’s till was short. As a result it was decided to draw the
defendant’s journal of the previous work day, and it was determined that the last
transaction of that date was reversed on the account number 622xxxx881. It was then
decided to give closer inspection of this specific account and it was discovered that
there was almost daily withdrawals which were made from the said account.
[20] Mr Schuster testified that the account in question belonged to one Ms Lydia
Songora. He testified that these withdrawals were made without the authority of the
customer and without her being physically present in the bank on the dates that the
withdrawals were made.
7
[21] Mr Schuster testified that he, together with forensic investigator, Ms Ingrid
Katjikua, did further investigations and checked the defendant’s teller journals for other
irregularities.
[22] The witness described a teller’s journal as a document on which all the
transactions listed on the system done by the teller during the course of the day is
reflected. The teller journal is identified by the teller’s employee number and also the till
number and it contains the number of transactions and all relevant details, namely the
date, time and the specific transactions, for example a withdrawal or a deposit.
Ms Sangora’s account
[23] As previously mentioned the account of Ms Sangora was investigated and it
revealed that withdrawals were taking place on a regular basis.
[24] Ms Sangora had a savings account with the plaintiff and the savings account is
book based, which means that the customer would complete a withdrawal form and
then the transaction would be recorded in her bank book.
[25] The client, Ms Sangora was contacted and she confirmed that she made a
withdrawal from her account on 17 September 2014 in the amount of N$ 8000.
According to the teller journal the customer was attended to by Le-Aldo Du Preez, with
employee number N4724879. The transaction was recorded on the customer’s savings
book. A further withdrawal of N$ 2500 was recorded later that same day at around
16h31 and the teller journal indicated that it was the defendant that processed the
transaction. Mr Schuster testified that the difference in respect of the transactions made
that day were that in respect of the latter transaction Ms Sangora was not present in the
branch at the time, nor was the transaction recorded in her savings book.
8
[26] Hereafter several further transactions were processed between the period 17
September 2014 and 06 October 2014, which were not recorded in Ms Sangora’s
savings book and no withdrawal slips could be located for the said transactions. Mr
Schuster testified that a total of N$ 38 200 was withdrawn from Ms Sangora’s account.
These transactions do not include the N$ 8000 withdrawal processed at the instance of
the customer.
[27] Mr Schuster testified that the defendant was responsible for processing all these
transactions and same were recorded on the defendant’s electronic teller journal for the
period 17 September 2014 to 03 October 2014. According to the plaintiff’s records the
defendant was the only bank employee who accessed Ms Sangora’s account.
[28] Mr Schuster further testified regarding an incident where a deposit was made in
favor of one Mr Sambilili and instead of the defendant crediting the account of Mr
Sambilili it was debited causing in actual fact a deficit in the amount of N$ 1400 in the
account of this customer. Simultaneous to this there was allegedly a withdrawal of N$
1400 made by Ms Sangora, according to the defendant, during which transaction the
money was allegedly paid out to Ms Sangora but the transaction was not properly
recorded, which resulted in the defendant requesting a reversal of the transactions and
the correction of the bank records. As a result Mr Schuster assisted the defendant to
complete a GPT input form wherein the incorrect transactions in respect of Mr Sambilili
was reversed and the transaction relating to Ms Sangora corrected. The GPT input form
was not only signed by the defendant but also by Mr Schuster and two other banking
officials. It would appear that although these transactions appeared aboveboard at the
time it became questionable at a later stage in light of the fact that Ms Sangora for
instance was never in the branch and never withdrew the said funds.
Ms Maria Ruviro’s account
9
[29] Subsequent to the resignation of the defendant a complaint was received in
respect of a second account in which an unauthorized transaction was concluded, ie Ms
Maria Ruviro with account number 620xxxxx289.
[30] Mr Schuster testified that on 30 October 2014 the said customer attended the
bank to enquire about a withdrawal in the amount of N$ 1000 from her account of which
she had no knowledge.
[31] Upon investigation it was found that a withdrawal from the customer’s account
was processed on 13 October 2014 by the defendant as per the teller journal but the
transaction was not recorded in the savings book of the customer. Mr Schuster testified
that on the said date the defendant was using the reference number of teller 7 where he
was placed instead of teller 5 where he was normally stationed. The withdrawal slip of
the transaction could not be located in the branch.
Duties of the defendant
[32] Mr Schuster testified that the plaintiff expects a high degree of integrity, care and
honesty from its employees due to the very nature of the plaintiff’s business. Mr
Schuster proceeded to outline what this duty of care and obligations thereof entails,
which rested on all employees of the plaintiff.
[33] The witness testified that by virtue of an employee’s position within the bank
structures, a fiduciary relationship vis-à-vis the bank existed and an employee is obliged
to adhere to the concomitant duties and responsibilities. This fiduciary relationship
requires an employee to act with utmost faith, alternatively good faith, by:
(a) Not appropriating, embezzling and stealing money belonging to the plaintiff and
that of its clients;
(b) Not being dishonest in any manner whatsoever;
(c) Diligently and honestly performing his/her duties;
10
(d) Not working against the bank’s interests;
(e) Not placing himself/herself in a position where his/her interest conflict with that of
the bank.
[34] The witness testified that in an effort to instill this culture of compliance and
reminding the employees of their duties and obligations, each branch has a defalcation
file. This is a file containing all the updates of policies and procedure, workplace rules
and similar information. This file is freely available to every employee to peruse and
consider and in order to ensure that the employees take effort to acquaint themselves
with the defalcation file it is the bank’s policy that the employees had to sign the said file
once every quarter, thereby acknowledging that they have read and understood what is
expected of them throughout their dealings with the bank.
[35] Mr Schuster also testified that similar information is available on the bank’s
intranet, which is an internal system where data is stored and every employee has
access thereto.
[36] The defendant signed the defalcation file during February 2014, May 2014 and
August 2014, thereby acknowledging and accepting the contents of the defalcation file.
The forensic investigation
[37] Mr Schuster testified that he assisted Ms Katjiukua, the forensic investigator of
the bank, in her investigation and the investigation yielded the following information:
(a) The defendant was employed as a teller during the relevant period of the
unlawful activities;
(b) The clients involved were clients who only had savings accounts and no entries
were recorded in the savings books of the customers reflecting the withdrawals;
(c) None of the withdrawal slips could be located in the branch that would accord
with the transactions;
11
(d) All the disputed transactions were reflected on the defendant’s electronic journal
report. Every entry made or processed on the system is identifiable by a unique
employee number;
(e) The ‘Teller 5’ date stamp was at all relevant times allocated to the defendant.
This stamp had to be locked away in the teller’s safe and no other employee is
allocated the same teller stamp. To the witnesses recollection there was another
teller 5 stamp but this stamp was in the custody of the police who was
investigating an earlier incident relating to another employee.
(f) The defendant was issued with a default password which he was required to
change to a secret password upon receipt thereof. All tellers, including the
defendant was allocated passwords to login on the plaintiff’s systems. The
immediate change of passwords is required to ensure that no unauthorized
transactions are recorded on the plaintiff’s system.
[38] During cross-examination the witness denied that he had access to the duplicate
key to the safe of the defendant. He testified that he had access to the treasury side of
the vault as he was a treasury custodian however the duplicate keys were in
safekeeping and under managerial control to which he had no access. This was a dual
system which required two officials to access the duplicate keys.
[39] The witness was also cross-examined regarding the defendant’s password and
stated that he cannot recall handing the password to the defendant as it would have
been e-mailed to the defendant but stated that in the event that it was forwarded to him
as supervisor he would hand the default password to the defendant who then had the
obligation to change his password in compliance with the policies of the plaintiff.
[40] The witness was confronted regarding the time the GPT transactions went
through the system ie during 21h30 and it was put to the witness that the defendant
could not be held responsible as it was not during working hours. The witness testified
in reply hereto that the GTP transactions go through the system in batches and the time
12
as reflected on the system would therefore not reflect the real time of the actual
transaction.
[41] The issue of the CCTV was also canvassed with the witness during cross-
examination and he stated that the CCTV was requested in 2014 and was handed to
the Namibian Police. He further testified that he viewed the footage and in his opinion
the footage plus the evidence based upon the password access credentials caused him
to believe that the defendant made the unlawful transactions. He further testified that
there could have been a delay between the actual transaction on the system and the
CCTV time. The witness disagreed that any other person could be responsible for the
transactions.
Annelie Derks
[42] Ms Derks is employed by the plaintiff as a Manager: Systems and Support and
based in Windhoek and has been appointed in the said position since 2009. Ms Derks
has been in the employ of the plaintiff for a period of 30 years in different capacities and
testified that she has a sound knowledge of all the bank’s processes and procedures,
systems and operations.
[43] Due to the position that Ms Derks hold with the bank she has access to and
control of certain records, registers and documents of the bank and its clients relevant
to and in connection with the action in casu.
[44] Ms Derks testified that the plaintiff uses the Karabo system and in her capacity
as Manager: Systems and Support she assisted the various branches with system
implementation and support and has a sound knowledge of the Karabo system.
[45] Ms Derks testified that she was informed that the defendant alleges that his
system passport was compromised but submit that it is not only untrue but impossible.
She stated so for the following reasons:
13
(a) Every person employed with the plaintiff as a teller is obliged to go on a teller
course as no person will be required to perform teller duties unless properly
trained as a teller.
(b) Tellers are trained on various aspects relating to the correct manner in which to
process a transaction, how to balance the various transactions on a daily basis,
how the teller systems work generally and most importantly the risk aspect
involved with being a teller and performing teller duties.
(c) When a new teller or any other teller needs to access the Karabo system the
branch manager of the relevant branch will send an email to Systems and
Support Department requesting them to load a new user, or reset a current
user’s Karabo access. A reset would mostly be in instance when the current user
cannot access the system because such person forgot his password.
(d) Systems and Support would then, upon receiving the request send an e-mail
directly to the specific user together with the IDM link1. The teller is then required
to click on or follow the link. By doing so the teller would be directed further to
access the system. Initial access is gained by entering a default password. Once
the system recognizes the default password, limited access is granted to the user
but the employee would still have no real access to the system other than for
setting up his user details and changing his password. The link and the default
password would only be valid for a day before it expires.
(e) The system does not allow access to it without the user having changed his or
her password and no third party can use the link or the default password other
than the person for whom such link and default password was requested.
(f) When the teller’s details are loaded on the Karabo system, the details consists of
the teller’s name, surname, and specific teller till number. When re-assigned to a
different till the management will re-assign the new till number as well. If this is
not done then the teller would not be able to access the system or open his till.
(g) All systems and processes are in place to ensure that only one specific teller can
perform transactions on the system and on that till and this process cannot be
1 Internet Download Manager
14
overridden by management. Once the teller opens his till nobody else in the
branch can sign in at another terminal into the specific teller’s till or process
transactions on behalf of the specific teller. The system has been designed in
such a fashion to prevent theft.
(h) Daily record is kept of all activity by a specific teller from the time that the teller
log into the system until such time that he or she logs out. The daily record is
commonly known as the Daily Teller Journal. Each teller has their own unique
teller journal.
(i) At the end of the day each teller is required to balance his till with reference to
the daily teller journal, which involves the counting of the cash at hand in the
teller’s safe and input it into the system. If the till does not balance the first time
then the teller will have one more opportunity to input the amount. On the third
attempt to balance the till the system will automatically block the teller’s access to
the system and a supervisor will be required to unblock the system to allow the
teller access to the till. Only after all the tills in the branch have balanced can the
branch close down.
[46] Ms Derks testified that it is technically impossible for any person other than the
defendant to perform the transactions reflected on his daily teller journal. She testified
further that the system is designed in such a manner that each employee is individually
accountable for the transactions he or she processed on the system.
[47] During cross-examination the issue of the default password was raised with Ms
Derks, and as with Mr Schuster the proposition was put to the witness that the
defendant received the password on a piece of paper. Ms Derks testified that even if the
default password was sent to the supervisor who for some reason changed it to a secret
password and then passed it on to the defendant it was still the obligation of the
defendant to change the password upon receipt thereof from the supervisors. Ms Derks
emphasized that the staff knew this as they signed the defalcation file on a quarterly
basis to inform them to keep their passwords safe. Ms Derks testified that in the event
15
that the defendant failed to change the password so received then he assumed the risk
along with it.
[48] The witness testified that all new tellers attend a tellers’ course during which the
new tellers are taught how to open and close a till, to operate the till and process
transactions. She further testified that during these teller courses the Forensic
Department also attend the training to explain the risks of the bank to the tellers.
[49] Once back at the branch the teller will be allocated a till which he or she would
operate with a unique password and once logged in this teller will be able to work on the
assigned till with the exclusion of all other people, management included. Ms Derks
testified that nobody else will be able to sign in into a till where a teller is logged into. In
the event that the teller logs out then another person with the unique password might be
able to log in but the teller will be able to detect that on the electronic journal which will
show that somebody logged into the said till from another terminal. However, Ms Derks
stated that logging into a teller’s till from another terminal would not accomplish anything
as the safe of the teller would be locked and the teller only carries the key. Therefore if
a transaction is done remotely from another terminal it would cause the teller concerned
not to balance at the end of the day. She testified that during the day the safe is locked
by the teller’s key and at the end of the day the supervisor spins the dial of the safe and
the teller locks the safe with a key. The safe will therefore be locked by two persons and
cannot be accessed after hours.
[50] Ms Derks also testified that every 30 days the system will prompt the teller on the
day that the password is due to expire to change the password. If that is not done then
the teller will not be able to log in.
[51] On the issue of moving the teller around the witness testified that a teller can be
moved but only when the supervisor re-assigned the teller and when there was a proper
hand over of the till concerned.
16
Melt Van Schoor
[52] Mr Van Schoor testified that he is a forensic investigator employed by the
plaintiff. The witness testified that he was also a forensic investigator for Old Mutual and
served in the police force for 22 years.
[53] He testified that although Ms Katjiukua initially conducted the investigation in the
matter in casu further aspects of the litigation arose pursuant to the initial investigation
resulting in the matter being handed to him to be investigated further.
[54] Mr Van Schoor testified that he compared an extract of the defendant’s electronic
teller journal with the CCTV footage during the course of his investigation where after he
made still images of the actual footage with regards to the time reflected on the teller
journal.
[55] The witness testified regarding the CCTV system and stated that it should be
born in mind that the CCTV time and the system does not always correspond 100% and
it depends on how the system was set up. There could therefore be two to three
minutes time difference between the systems.
[56] The witness testified that the CCTV system should be set up on Hogan time. The
Hogan system is the system used by the plaintiff, which record the time of all
transactions country wide. The Hogan system and Karabo system work conjunctively
with each other.
The witness testified that on the relevant times as per the CCTV system the account
holders were not served by the defendant and he concluded that they were not in the
bank when the transactions were processed. Mr Van Schoor also confirmed that the
transactions were done on the defendant’s employee number.
17
[57] During cross-examination when asked if the defendant was seen to have done
anything illegal on the CCTV footage the witness indicated that that possibility was
there. However Mr Van Schoor submitted that it is possible that a transaction could
have been initiated and completed at a later stage.
[58] As Ms Shikale, counsel for the defendant, went through all the CCTV footage
with the witness the witness stated that there were times as on the electronic teller
journal for which no footage is available. The witness indicated that he is unable to
explain what exactly happened to the footage that appears to be lost.
The defendant’s case
[59] Mr Le-Aldo Du Preez was the only witness who testified on behalf of his
defence. There was an attempt to secure the attendance of Ms Katjiukua, the initial
forensic investigator however after a failed attempt to secure her attendance by
subpoena the court refused a further postponement, where after the defendant’s case
was closed.
[60] The defendant testified that he started his employment with the plaintiff at the
Rundu branch on 21 October 2013 as a ‘Know Your Client’ clerk. At the time he was
working on a two month contract which expired during December 2013. During January
2014 he was offered a new contract as an E- Educator (electronic bank educator). This
contract expired during February 2014. Following the expiration of his second contract
the witness was offered a third contract during March 2014 as a General Back Office
Clerk. This contract only lasted for one month where after the witness was offered a
fourth contract as Back Office Processing Clerk FDE. As this contract was also only for
one month the witness applied for a permanent position in April 2014 and was so
appointed during May 2014 at the Rundu Branch.
18
[61] The defendant stated that he attended a teller training on 07 July 2014. He
passed his post-training test with 92 per cent where after he returned to the branch with
the instruction that he had to formally shadow another teller for a week and after the
week the branch was instructed to send a progress report in order for the trainer to
issue the defendant’s a teller certificate. This instruction was apparently ignored as the
defendant was instructed to immediately start working on his own and was not given the
opportunity to shadow another teller.
[62] The defendant testified that his supervisor, Mr Schuster requested a password
for him from the Systems and Support Division in order for him to start working. The
password was then sent to Mr Schuster who handed the defendant the password on a
piece of paper. The defendant further testified that he was never told by anyone to
change it and the Karabo system likewise never prompted him to change his password.
The defendant testified that the only reasonable thought was that the supervisor, Mr
Schuster changed the password before handing it to him. The witness stated further
that on occasion he was locked out of the Karabo system and every time he would
receive the new password from Mr Schuster on a piece of paper. He accepted it and did
as he was told by his supervisor and would then proceed to work using the password
received from Mr Schuster. The defendant testified that his password was, as a result,
compromised. The defendant stated that it has been the norm in the Rundu branch of
the plaintiff that supervisors compromised junior staff members’ passwords and that this
practice has been going on for years.
[63] The defendant testified that he requested his supervisor for his job description
after he started working full time in his capacity as teller, to satisfy himself as to what
was expected from him, however he never received it so he operated as a teller through
word of mouth.
[64] According to the defendant he was moved from till to till during the time of his
employment and in the process of being moved between the tills there would be
different teller id’s and the defendant stated that that would explain the different teller
19
id’s appearing on the journal. The teller’s id referred to by the defendant was explained
to be the teller stamp.
[65] The defendant testified that he diligently followed procedure and his till balanced
every day. Once the till balanced he would hand a printout of his teller journal to Mr
Schuster to check and if there were any irregularities Mr Schuster should have picked it
up.
[66] The defendant testified that over a period of time he started to become unhappy
in his work and decided to apply to Bank Windhoek for a position in its Katima Mulilo
branch. On Friday 10 October 2014 a cash check was done at the bank and his till was
found to be short, in spite of the fact that his till balanced the previous working day. The
defendant testified that he could not explain the shortage and suggested to
management to check the CCTV footage to see how the shortage came about. The
defendant stated that he however had an appointment with the doctor as he was ill and
had to leave and does not know if the CCTV footage was checked. Upon his return he
was informed by Mr Schuster that a further check was done on the defendant’s till and it
was still short. As the defendant was booked off sick he then handed in his sick note
and left for home. Whilst at home the defendant was confidentially informed that he
succeeded in his application to Bank Windhoek and then on Monday 13 October he
went into the bank to hand in his resignation with immediate effect.
[67] Whilst completing his branch exit form, the defendant was informed that the bank
manager wishes to see him. The defendant testified that when he got to the bank
manager’s office he found not only Mr Amakali, the bank manager but also Mr Schuster,
his supervisor and one Ms Derday in the said office. The defendant was informed by Mr
Amakali that he was suspected to have committed fraud. He was confronted with the
account of Ms Sangora but the defendant testified that he informed Mr Amakali that he
deals with hundreds of customers on a daily basis and could not say if he knew her.
20
[68] Subsequent to the discussion with the branch manager the police was called and
the defendant was taken to the police station. At the police station the police official
asked if the defendant would be willing to make a statement but the defendant elected
to exercise his constitutional right to remain silent where after he was released.
[69] On 16 October 2014 the defendant was again contacted by the police and was
told to go to the Investigation offices, which he did and was arrested. The defendant
stated that he made a subsequent appearance in the Magistrate’s Court on 17 October
2014 when he was granted bail and released.
[70] The defendant testified that he knew that the management did not like him as he
was not willing to assist with what he described as backdoor entries (deposits and
withdrawals) unless the relevant remarks were made on the customer’s account.
[71] The defendant testified that the only thing linking him with the fraud is the fact
that his password was used in all the transactions and this the defendant conceded but
emphasized that it should be understood that his password was already compromised
when the password reached him.
[72] The defendant testified that he feels that he is the victim in the matter in casu and
that the evidence shows that he was not even in the bank when for instance a
transaction was concluded at 21h30 (with reference to the GPT transaction) and with
reference to the transaction done on date of his resignation the defendant stated that he
did not assist any customers and merely did a hand over of the till to Mr Clemens and
therefor he could not have transacted the fraudulent withdrawal as alleged by the
plaintiff.
[73] The defendant requested the court to take the following into consideration:
21
(a) He was only working as a teller for four months and the fraud committed would
require some sort of an expertise to commit as the person was manipulating the
system;
(b) The supervisor, Mr Schuster failed to spin their tills on a daily basis and Mr
Schuster was the combination holder of the teller safes as well as the keys to the
vault and could access the spare keys to the teller safes;
(c) His signature in the attendance register on certain days appears to be forged.
The defendant stated however that he cannot recall if he was on or off duty on
those days. The attendance record shows that the supervisor and at least one
other person were in the bank to a late hour;
(d) The result of the charges levelled against him caused Bank Windhoek to
withdraw their offer to employ the defendant.
[74] The defendant testified that had he done anything wrong then the CCTV would
have proven the allegations, however it has come to his attention that not all the
relevant footage is available and believes that it was the intention of a senior bank
official not to avail all the CCTV footage when same was demanded for purposes of the
criminal matter and that the said official chose to selectively download only some of the
footage.
[75] During cross-examination the issue of the policies and procedures was
discussed with the defendant amongst other things and the defendant conceded that he
was aware of the defalcation file and that he indeed signed the said file during February,
May and August 2014. The defendant further conceded that the defalcation file and the
policies as set out therein was binding on him as employee as he signed it but stated
that he was expected to sign the cover page, which he did but he never read the
contents of the defalcation file due to time constraints in the branch. The defendant
further conceded that he never asked for a copy of the policies and procedures.
[76] When the relevant portions of the defalcation file was read to the defendant that
specifically referred to the use of internet, intranet and safe keeping of password the
22
defendant did not take issue with the fact that these policies were contained in the
defalcation file.
[77] The defendant further conceded that as a term of his employment contract it was
stipulated that the Human Resource Staff Manual was a binding legal document.
[78] On the issue of his training the witness testified that he does not dispute the fact
that he attended the teller training course but stated that due to the non-compliances by
the Rundu Branch during his post-training period and as a result of the branches’ failure
to submit a further report he was not issued with a teller certificate and can therefore not
be regarded as a certified teller. The defendant however does not place in dispute that
he received the relevant training of a teller.
[79] On the issue of the password the defendant testified that he never received his
password via email or the IDM link but always received it on a piece of paper from Mr
Schuster. That include the instance where there was a power outage at the bank and all
the systems shutdown because of it. As a result he was lock out of the system and his
supervisor provided him with a new password.
[80] The defendant conceded that during his earlier employment with the bank he
was issued with a password but then he was working on the Hogan System that
required him to change his password every three months but he was never long enough
in a department to change his password. For the period that he was a teller he received
his password from Mr Schuster but it did not particularly bother him as this was
apparently the practice among the tellers.
[81] When the proposition was put to the defendant that if his password was
compromised then his till would not balance, the defendant replied that his till balanced
every day. He further stated that it could happen that the person performing the illegal
transaction could have balanced the till after the defendant logged out and he would be
none the wiser as there is no notification that the till was opened. He further stated that
23
Mr Schuster could have done the transaction from the back office and then get access
to the defendant’s safe with the spare key and remove the money. This spare keys are
according to the defendant inside of the vault to which Mr Schuster can have access
without making use of the dual access system.
[82] When the scenario was further canvassed with the defendant he agreed that the
transactions took place during banking hours and that somebody would have seen Mr
Schuster in the event that he removed money from the defendant’s safe, alternatively it
would be recorded on CCTV.
[83] When confronted with the GPT input form the defendant acknowledged that he
signed it together with other bank officials and stated that in order to reverse a
transaction or transactions he would have given the id, the signature card, the faulty
transaction and the withdrawal slip to the supervisor and those documents are not
attached. He further indicated that the transactions reflected on the GPT input form
could have been transactions mistakenly recorded.
Burden of proof and mutually destructive versions
[84] It is trite law that a party who asserts has a duty to discharge the onus of proof. In
African Eagle Life Assurance Co Ltd v Cainer2, Coetzee J applied the principle set out in
National Employers' General Insurance Association v Gany3 as follows:
'Where there are two stories mutually destructive, before the onus is discharged the
Court must be satisfied that the story of the litigant upon whom the onus rests is true and the
other false. It is not enough to say that the story told by Clarke is not satisfactory in every
respect, it must be clear to the Court of first instance that the version of the litigant upon whom
the onus rests is the true version . . . .'
2 African Eagle Life Assurance Co Ltd v Cainer 1980 (2) SA 234 (W) at 237D-H.3 1931 AD 187. Also see Sakusheka and Another v Minister Of Home Affairs 2009 (2) NR 524 (HC) at 37.
24
[85] The approach to be adopted when dealing with the question of onus and the
probabilities was outlined by Eksteen JP in National Employers' General v Jagers4, as
follows:
'It seems to me, with respect, that in any civil case, as in any criminal case, the onus can
ordinarily only be discharged by adducing credible evidence to support the case of the party on
whom the onus rests. In a civil case the onus is obviously not as heavy as it is in a criminal
case, but nevertheless where the onus rests on the plaintiff as in the present case, and where
there are two mutually destructive stories, he can only succeed if he satisfied the Court on a
preponderance of probabilities that his version is true and accurate and therefore acceptable,
and that the other version advanced by the defendant is therefore false or mistaken and falls to
be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the
plaintiff's allegations against the general probabilities. The estimate of the credibility of a witness
will therefore be inextricably bound up with a consideration of the probabilities of the case and, if
the balance of probabilities favours the plaintiff, then the Court will accept his version as being
probably true. If however the probabilities are evenly balanced in the sense that they do not
favour the plaintiff's case any more than they do the defendant's, the plaintiff can only succeed if
the Court nevertheless believes him and is satisfied that his evidence is true and that the
defendant's version is false.'
Evaluation of the evidence adduced
[86] Having considered the evidence of the plaintiff’s witnesses I must remark that
they generally made a favorable impression on the court.
[87] The evidence of Ms Derks and Mr Van Schoor was of a more formal nature and
was given in a clear and concise manner, and where necessary, these witnesses made
the appropriate concessions. Neither Ms Derks nor Mr Van Schoor was discredited
4 National Employers' General Insurance v Jagers 1984 (4) SA 437 (E) at 440D. See also Stellenbosch Farmers' Winery Group Ltd v Martell et cie 2003 (1) SA 1 (SCA) para 5 and Dreyer v AXZS Industries (Pty) Ltd 2006 (5) SA 548 (SCA) at 558E-G. Cited with approval in the matter of Prosecutor-General v Hategekimana [2015] NAHCMD 238 (POCA 5/2014; 8 October 2015) and Prosecutor-General v Kennedy 2017 (1) NR 228 (HC).
25
during cross-examination and their evidence did not contain any inconsistencies or
inherent contradictions.
[88] Mr Schuster’s evidence was severely criticized by Ms Shikale and this was done
in order to cast doubt in respect of Mr Schuster’s integrity, not only as a witness but in
general as the defendant, by implication, say that it was Mr Schuster who conducted
these transactions and pocketed the money. However, interestingly enough it was never
pertinently put to Mr Schuster that the defendant suspect that he had a hand in the
unlawful activity to enable him to answer to it.
[89] At times during cross-examination Mr Schuster appeared to be a bit unsure and
even struggling. The witness however testified with the assistance of an interpreter and
at times things appeared to go missing in translation. The witness also explained that
this whole incident happened a long time ago and that he could not remember all the
details he was cross-examined on. In spite of certain criticism that can be levelled
against the evidence of Mr Schuster he did not strike me as a dishonest witness.
[90] The defendant appeared to be a confident witness but unfortunately I am
convinced that he was not truthful in many respects and that he was in some instances
an argumentative witness who tailored his answers to suit his case. What I find
interesting is that when it suits the defendant he appeared to be extremely
knowledgeable regarding certain aspects of the working of the bank yet when the shoe
started to pinch the defendant would feign ignorance.
[91] This was very evident from the way in which the defendant would step into the
proverbial ring with the evidence of Mr Schuster in aspects like the loading of the GPT
batches, the GPT process, the dual vault access, the working of the CCTV, etc. But
when it came to the most basic of things, like changing of a password, the defendant
said nobody told him to change his password that received from Mr Schuster, his
supervisor, and that he just did his work as he was told to. In this regard the defendant
tried to paint a picture of himself as a naïve and inexperienced teller and he tried very,
26
and I must say very hard to make it appear that he is the scapegoat for the sins of his
supervisors.
[92] This latter position that the defendant takes up is however flawed in many
respects and I will refer to a number of instances to illustrate why I say so.
[93] I will start off with the password issue. The defendant was well aware of the fact
that the plaintiff allocated passwords to its employee regardless of the department to
which he or she is appointed. The defendant stated that whilst working in the other
departments prior to his appointment as teller he was working on the Hogan System,
which is one of the plaintiff’s operating systems, and he had a password which would
change every three months. The defendant attended a teller training before he was
allocated his own till and required to work on his own. During this training he was
trained in the risk aspect involved with being a teller and performing teller duties. During
these teller courses the Forensic Department also attended the training to explain the
risks of the bank to the tellers. This evidence of Ms Derks stand undisputed.
[94] It boggles the mind that the teller trainees would be trained in the risk aspect of
being a teller and performing teller duties but not a word is said about the importance of
a teller’s secret password and the confidentiality thereof. A teller’s secret password is
the very foundation of a teller work. If one have regard to the premium that the plaintiff
places on security and confidentiality, which is clear from the defalcation file as well as
the employment agreement of the defendant, I cannot believe that the defendant was
not trained on the issue of passwords. The defendant’s version is that he was never
sent on an induction course and that might be so but it is ultimately the teller’s course
that he attended that provided the defendant with the necessary tools to enable him to
do the work he was required to do. The fact that he did not receive his teller certificate
did not make him any less competent to do his work as a teller. At this point I must also
just mention that I found it so strange that the defendant insisted on his duty sheet to
determine what was expected of him as a teller and that the defendant would go as far
as saying that as he did not receive the duty sheet that he then worked by word of
27
mouth. All this after attending and passing a teller course successfully with a 92 per
cent passing grade. It is my view that his argument on this aspect falls flat and stands to
be rejected.
[95] It is the version of the defendant that junior staff members’ passwords were
compromised for years. This a bald statement that the defendant made and just left it
hanging mid-air. He did not elaborate on this statement nor was any witnesses called to
corroborate this statement. Surely, if this was indeed the case it would have been easy
enough to call witnesses in support of this damning statement. After all the defendant’s
whole defence rest on the fact that his password was compromised.
[96] Still remaining with the issue of the password and the confidentiality thereof it is
important to consider the defalcation file. The defendant confirms that he signed the
defalcation file quarterly but testified that he did so without reading it. I cannot believe
that the defendant did not even page through the defalcation file. The defendant stated
that due to the nature of his work as a teller there was no time to read the defalcation
file, and he could not take it home either, but one should not lose sight of the fact that
for approximately 6 months of his employment with the plaintiff he was not a teller but
placed in different departments and had enough time to acquaint himself with the
defalcation file.
[97] From my reading, the quarterly signing of the defalcation file is directed to all staff
as it indicates as follows:
‘NB. ALSO TO BE READ AND SIGNED BY NEW RECRUITS AND TRANSFERRED
STAFF AS AND WHEN THEY JOIN.
NB: ALSO TO BE READ AND SIGNED BY NON-CLERICAL AND CASH LOAN STAFF’.
[98] By just paging through the defalcation file it is clear that there appears for
example a heading like ‘Email Internet and Intranet Policy’, ‘Security and Confidentiality’, etc. In fact on page 37 of the defalcation file the following is written:
28
‘We deem it necessary to reiterate: THE SHARING OF PASSWORDS IS A DISMISSABLE OFFENCE.’
[99] In appendix 12 - Staff Defalcation Letter5, the plaintiff point the following out to
the employees:
‘a password is similar to keys held by a custodian - it admits the holder to the assets of
the bank. Compromise of passwords is comparable to handing strongroom keys to someone not
permitted to hold them, or not keeping Bank Treasury securely locked away. If you feel your
password could have been compromised then change it immediately.’
[100] Further, just to emphasize the position of the bank, the following circular under
the heading CIRCULAR ADVISE NO 713/2004 was issued and is contained in the
defalcation file setting out the requirements pertaining to the safekeeping of system
access passwords. What is of importance is the following portion of the aforementioned
circular:
‘QUOTE FROM THE STAFF DEFALCATION LETTER DATED 15 MAY 2002:
“UNDER NO CIRCUMSTANCES WHATSOEVER MAY ANY STAFF MEMBER DIVULGE
THEIR COMPUTER ACCESS CODE OR PASSWORD TO ANY OTHER PERSON. IN
ADDITION, NO INSTRUCTIONS FROM A SUPERIOR TO DIVULGE AN ACCESS CODE OR
PASSWORDIS TO BE CARRIED OUT AND, IN FACT, ANY SUCH REQUEST SHOULD BE
REPORTED TO A SENIOR OFFICIAL”’.
[101] And further in the same circular:
‘[D]URING THE INVESTIGATION INTO FRAUD CASES, INVOLVING STAFF, THE
EXCUSE HAS INVARIABLY BEEN PUT FORWARD THAT SOMEONE ELSE USED THE
PASSWORD WITHOUT THE KNOWLEDGE OF OFFICIAL IMPLICATED. THIS EXCUSE IS
NULL AND VOID AND WILL NOT BE ACCEPTED FOR MITIGATION OF THE SENTENCE . . .
5 Page 40 of the Plaintiff’s additional discovery bundle.
29
. . . IN ORDER TO ENSURE THAT NO-ONE CAN ALLEGE IGNORACE, WE REQUIRE A
COPY OF THIS ADVICE TO BE RETAINED AND READ IN CONJUCTION WITH YOUR
STAFF DEFALCATION LETTER DATED 15 MAY 2002. WHICH STAFF ARE REQUIRED TO
READ AND SIGN, AS HAVING DONE SO, ON A QUARTERLY BASIS’ (my emphasize)
[102] In the quarterly signing of the various letters the aforementioned letters and/or
circulars are all listed and the defendant signed it acknowledging that he read it as
follows:
‘I, the undersigned hereby confirm that I have read and understood the contents of the following:’
[103] I find it hard to believe that the defendant never saw or read any of these
directions. In light of the above I cannot wrap my mind around the fact that the
defendant would think that receiving a password from a supervisor, and then not
changing it to a personal password would be in terms of the policies of the bank.
[104] The defendant is a bright young man, which is quite evident from the way in
which he conducted himself in court ,and I cannot accept that he would not question the
veracity of a password so received.
[105] I am not convinced that the defendant’s password was compromised. It is clear
he was trained and he appended his signature to the quarterly signing of the defalcation
file acknowledging having read the contents thereof. He is therefore precluded from
pleading ignorance.
[106] On the issue of the accounts relevant to the plaintiff’s claim, the defendant denies
any wrongdoing in respect of the accounts of Ms Sangora and Ms Ruviro. He argued
that the only thing tying him to the unlawful activity on these accounts is the fact that his
employee number was used and that all these withdrawals appears on the teller journal
under his name.
30
[107] The defendant testified that as his password was compromised he suspect his
supervisor to have done these transactions however there is so many things that does
not add up in this version of the defendant and I will just mention a few:
(a) Even if the court accept that the supervisor could do transactions from his
terminal in the name of the defendant the transaction were done on days that the
defendant was at work and the supervisor would not be able to log into the
defendant’s till while the defendant was logged in. Even if the supervisor logged
in at a time that the defendant was logged out the supervisor would not have
access to the safe of the defendant as he (the defendant) had the keys to the
safe.
(b) The defendant submitted that the supervisor could access the duplicate key of
the safe, which is in the vault and open the teller safe but he conceded that as
the teller section of the Rundu branch is open some of the other tellers would
observe the supervisor having access to the safe. It is common cause that there
were tellers on duty at all material time as the bank remained open during lunch
time. It would not appear that any of the other tellers observed the supervisor
accessing the defendant’s safe otherwise the defendant would have informed the
court accordingly and would surely have called the relevant person to testify.
However, it is Mr Schuster’s evidence that he would not have access to the
duplicate key as the vault is a dual system and can only be accessed with
another keyholder. Apart from that the duplicate keys were under managerial
supervision.
(c) If the transaction was done and the money was not removed from the till then the
defendant would not be able to balance his till and the defendant emphasized the
fact that his till always balanced. In addition thereto the defendant, who was
apparently meticulous in his teller journal, would have detected that access was
gained to his till from another terminal when he balances his till and print his
journal for checking by Mr Schuster.
(d) Defendant testified he was unaware of the myriad of transactions and was utterly
shocked when confronted with it on the day of his resignation. The question then
31
arises that if the defendant was unaware of these transactions and it was done
by the supervisor as the defendant proposes, why the supervisor would do a
surprise cash check and thereby killing the goose that is laying the golden eggs,
because on the defendant’s version, up to this point the supervisor happily got
away with it. It just does not make any sense.
(e) The first transaction, namely the withdrawal of N$ 8000, which was a legitimate
transaction, was done on the employee number of the defendant. Why would any
teller log in under the employee number of the defendant and assist a client in
concluding a legitimate transaction. This transactions clearly excludes the
supervisor because the supervisor did not do any teller work. The reasoning of
the defendant in this regard is again clearly flawed.
(f) However, interestingly enough, that very same day the first unauthorized
transaction was done and continued until 13th of October 2014 when the
defendant resigned with immediate effect. Strangely enough the reason
advanced for the resignation of the defendant was ‘personal and rare medical
illness’. One must wonder if the defendant realized that the game was up at this
stage.
(g) Defendant denies having done any transactions on the morning of the 13th of
October 2014 when he resigned and testified that he merely handed over his till
to one Mr Clemens, but yet again this person is not called to testify to rebut the
allegations of the plaintiff.
(h) The defendant is insistent that the CCTV does not show that he did anything
irregular but similarly it does not show that he did not do anything irregular. The
evidence is that the CCTV did not necessarily reflect real time and the defendant
alleged that it is not so but there is nothing to the contrary before this court. In
any event the CCTV shows that the terminal of the defendant was on during
these footage and one should keep in mind that if a transaction is done
irregularly it would not mean that the money would be removed from the safe
simultaneously as with a real transaction with a customer standing in front the
teller. What the CCTV footage do show is that there was no customer in front of
32
the defendant’s teller either before or after the time as recorded on the electronic
teller journal.
[108] It is clear that the defendant is attempting to cloud the issue by casting suspicion,
or at least try to cast suspicion on the supervisor, in order to draw the attention away
from himself, but this court is not convinced.
[109] This is one of those matters where the defendant appears to be very self-
confident and convincing when he testifies until one considers the evidence more
closely and then it becomes apparent that the version of the defendant is absolutely
fraught with inconsistencies and improbabilities. I have only discussed a few
inconsistencies and improbabilities that go to the root of the case and choose to leave it
at that because it will overburden the record but the bottom line is that in light of the
issues pointed out and discussed the defendant’s version stands to be rejected.
The applicable law
[110] Our law acknowledges a concurrence of actions where the same set of facts can
give rise to a claim for damages in delict and in contract, and permits the plaintiff in such
a case to choose which he wishes to pursue.
[111] In the matter in casu the plaintiff clearly elected to pursue the claim in delict.
[112] All five elements of delict, namely an act (or omission), wrongfulness, fault (intent
or negligence), harm and causation must be present before the conduct complained of
may be classified as a delict6.
6 See Neethling, Potgieter & Visser Law of Delict 5 ed (LexisNexis 2006) at 3 (Law of Delict.)
33
[113] Having given careful consideration to the evidence adduced I am satisfied that
the plaintiff discharged its onus on a balance of probabilities that the defendant
wrongfuly and intentionally appropriated monies owned by the plaintiff, alternatively
monies owned by clients of the plaintiff by making unauthorised cash withdrawals and
fabricating withdrawal slips, fabricating account entries and by generally failing to follow
prescribed due diligent procedures within the structures of the plaintiff. As a result of the
defendant’s wrongful actions the plaintiff suffered a loss in the amount of N$ 39 200, of
which N$ 3015.32 was recovered, resulting in a balance of N$ 36 148.68. The
customers of the plaintiff were already reimbursed in respect of the unlawful withdrawals
made from their respective accounts.
[114] In light of my aforementioned findings I do not deem it necessary to deal with the
alternative claim.
[115] On the counterclaim, malicious prosecution occurs when one party has
knowingly and with malicious intent initiated baseless litigation against another party.
This includes both criminal charges and civil claims, for which the cause of action is
essentially the same. The requirements are that the arrest or prosecution be instigated
without reasonable and probable cause and with ‘malice’ or animo iniuriarum7. Although
the expression ‘malice’ is used, it means, in the context of the actio iniuriarum, animus
iniuriandi 8.
[116] The elements for a claim for malicious prosecution was discussed in the matter
of Akuake v Jansen van Rensburg9 wherein Damaseb JP states the following10:
(a) Without reasonable and probable cause; and that
7 Thompson & another v Minister of Police & another 1971 (1) SA 371 (E) 373F-H; Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) 196G-H.8 Heyns v Venter above 208EF; Moaki v Reckitt & Colman (Africa) Ltd and another 1968 (3) SA 98 (A) 104A-B; and see the discussion in J Neethling JM Potgieter and PJ Visser Neethling’s law of personality 2 ed (2005) 124-5.9 2009 (1) NR 403 (HC).10 at 404F.
![ejustice.moj.naejustice.moj.na/Supreme Court/Judgments/Judgments/Westcoast Fishin… · Web view[8]During July 2011 the appellant appointed Alberts Becker Vorster Pillay and Associates](https://static.documents.pub/doc/80x56/5c3741f609d3f2f9578b8399/courtjudgmentsjudgmentswestcoast-fishin-web-view8during-july-2011-the-appellant.jpg)
