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A few years ago, I bought furniture from an acquaintance of mine. I stood next to him while doing the online banking transaction to transfer the funds to his account. We confirmed the account number a few times before I pressed the “send” button on my phone. Immediately afterward, he realized that he swopped two digits around when he read me the account number. We rushed to the nearest associated bank only to find that the receiver of the undeserving funds had already withdrawn the money. This was over the December holiday period. He must have thought it was a gift from the ancestors.

The bank advised me to go to the bank of the receiver and discuss the matter with them. I did that but the outcome was unsuccessful. I then went to the SAPS where a rude and ill-educated officer tried to convince me that there is nothing I can do. With my somewhat limited legal background, and being brought up with a Legal Advisor as a father, I begged to differ with this warrant officer. I insisted on speaking to an investigating officer. Arriving in the officers’ office, we phoned the public prosecutor and he confirmed that this does justify a case to be opened. The case was subsequently opened.

A week later, I received a call from the investigating officer. He begged me to drop the case as he spoke with the young man who received the funds; they are unable to return the money. He suggested paying the money back bit by bit every month. This never happened. The boy’s mother phoned me months later, thanking me for a great Christmas that December and also begging me to drop the case. I refused. To this day, nothing came of this.

What does our law say in cases like this? Does this scenario constitute a positive legal outcome? Let us look a bit closer…

My situation required me to do some further reading on the matter and, although I didn’t pursue the case further, I felt it to be important to share the legal possibilities with people in similar situations.

Fortunately for us, there is a thing called UNJUSTIFIED ENRICHMENT in South African Law. Unjustified Enrichment in South African Law contains an incorporating outline of the standard requirements common to all types of collections based on unjustified enrichment.

In layman’s terms, unjustified enrichment is where one entity becomes impoverished while another becomes enriched in the absence of a mutual agreement. In my case, there was no agreement between the receiver and the sender, i.e. I became “broke” and the receiver became “enriched” financially without any agreement, purchase, donation, or gift. Thus making the recipient guilty of unlawful usage and withdrawal of the funds.

The most recent and well know case that has relevance to this was the case where a Walter Sisulu student mistakenly received R14m from the NAFAS. According to Lauren Isaacs from EWN “CAPE TOWN – The theft trial of former Walter Sisulu University student, Sibongile Mani, will resume at the East London Regional Court on xxxxxx morning. Mani erroneously received R14 million into her student account from the National Student Financial Aid Scheme (NSFAS) in 2017. She was accused of stealing after she spent R800,000 of the money. The accounting student was entitled to receive R1,400. She is currently out on bail.”.

In conclusion, according to legal experts, If you knowingly spend money that was erroneously deposited into your banking account, you are committing a crime. A Wits law professor held that spending money that does not belong to you is permanently depriving the owner of the money  and that constitutes theft and could result in criminal charges if the money is not returned.The bank involved could even open a civil case against the perpetrator to recoup the money.“The basis of this action is called unjustified enrichment – it means that someone got paid money (where) there was no legal reason for them to get paid,” he said.“The money can be recovered by court action.”

So, for those who thought Christmas came early when money appears in your account in error, you should check with your bank where the money came from, and pay it back. ☺

Further reading: https://www.derebus.org.za/redundant-or-relevant-the-law-of-unjustified-enrichment/

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