First National Bank (A Division of FirstRand Bank Ltd) and Another v Scenematic One (Pty) Ltd

Scenematic One (Pty) Ltd was a manufacturing company that had an established banking relationship with First National Bank (FNB) and regularly financed specialist equipment through Wesbank (also part of FirstRand Bank). On 22 May 2007, Thomas Johannes Naude, a director and employee of Scenematic, entered into a personal instalment sale agreement with Wesbank for a Mitsubishi Pajero motor vehicle. Naude struck out his personal bank account number on the agreement and replaced it with Scenematic's bank account number (62035695917), initialling the amendment. As a result, monthly instalments of R4,362.23 were debited from Scenematic's account from July 2007. During an August 2008 audit, when auditors requested documentation for the debit order, Scenematic could not locate it and made numerous enquiries with Wesbank without success. Naude was dismissed in November 2008 after unrelated disciplinary proceedings, but the debit orders continued. Wesbank only provided a copy of the agreement in March 2011, at which time Scenematic's managing director, Mr Annandale, became aware of the unauthorized agreement. The total amount debited was R195,661.94. Summons was served on 19 May 2011.

• Whether Scenematic's claim against FNB and Naude had prescribed in terms of sections 11 and 12(3) of the Prescription Act 68 of 1969
• Whether FNB breached its duty as a banker by debiting Scenematic's account without proper authority
• Whether Naude fraudulently misrepresented that he had authority to use Scenematic's bank account details for a personal agreement
• Whether Scenematic exercised reasonable care in detecting the unauthorized debit orders
• Whether FNB could be held liable for pure economic loss caused by negligence
• When prescription commenced running under section 12(3) of the Prescription Act

The appeal was dismissed with costs. The orders of the High Court were confirmed: (1) Both defendants' special pleas of prescription were dismissed with costs; (2) FNB and Naude were ordered to pay Scenematic R195,661.94 jointly and severally, the one paying the other to be absolved; (3) FNB and Naude were ordered to pay Scenematic's costs, the one paying the other to be absolved.

The binding legal principles established are: (1) Under section 12(3) of the Prescription Act, prescription only begins to run when a creditor has knowledge, or with reasonable care could have acquired knowledge, of the identity of the debtor and facts from which the debt arises. What constitutes 'reasonable care' must be assessed contextually, taking into account the creditor's business circumstances. (2) A bank owes its client a duty not to debit the client's account without proper authorization, and breach of this duty through negligence can give rise to liability for pure economic loss. (3) Where there are obvious red flags such as manuscript alterations to account details on agreements, missing resolutions, or discrepancies between personal agreements and corporate account details, a bank must make proper enquiries and cannot rely on general signing authorities. (4) Fraud is not limited to the initial fraudulent act but continues throughout the period during which the fraudulent scheme operates and benefits are received. (5) The test for liability for pure economic loss in delict requires consideration of whether the defendant knew or foresaw that negligence would cause loss, whether the loss could easily have been prevented, and policy considerations relating to professional service relationships.

The court made several non-binding observations. It noted that while Scenematic's staff 'may not be entirely blameless' and Ms Annandale's efforts to establish the origin of the debits from Wesbank were 'half-hearted to say the least,' this was ultimately irrelevant to the prescription issue because even using that later date (August/September 2008), the claim was instituted within three years. The court also observed that Naude 'must have been aware' that ongoing monthly deductions would be 'lost or hidden' within the multiplicity of debit orders for specialist equipment, suggesting knowledge and exploitation of the business circumstances. The court commented that FNB was 'as much as Scenematic, a victim of Naude's fraud' - acknowledging FNB's position as a victim while nevertheless maintaining its liability. The judgment also reflects that a resolution was 'required' even if the acknowledgment could somehow be construed to relate to a corporate client, suggesting general banking practice expectations.

This case is significant in South African law for its application of prescription principles under sections 11(d) and 12(3) of the Prescription Act 68 of 1969, particularly in determining when a creditor acquires knowledge of facts giving rise to a debt. It clarifies that the 'reasonable care' standard under section 12(3) must be assessed contextually, considering the business environment and circumstances of the creditor. The case also establishes important principles regarding a bank's duty of care to its clients, confirming that banks can be held liable for pure economic loss where they negligently process unauthorized debit orders. The judgment reinforces that banks must exercise proper diligence in verifying authorization for debit orders, particularly where there are red flags such as manuscript alterations to account details or discrepancies between personal agreements and corporate accounts. It also demonstrates that continuing fraud extends throughout the period of wrongful conduct, not merely from the initial fraudulent act.