Good dayEarlier this year we handled a v...

Asked by Mandri on 11-12-2019 17:57:35
Question posted in the General Law category relating to Mpumalanga
Question value: R 400.00

Good day

Earlier this year we handled a vehicle sale for my brother in law.  The vehicle was dealer stocked on our business name as we are registered at the lisencing authority as a dealer.  Frustrating as it was, I handled all the correspondence with the bank and completed all the relevant paperwork.  Because it is family, we did it benefiting nothing out of the deal.When the money was paid into our account by the bank, I asked my brother in law for his banking details.  We tried a few days but could not get hold of him, eventually emailing his secretary.  I received banking details, and my husband phoned his brother confirming the name of the account as it was in the name of C Langeveldt.  We did not confirm the account number as my brother in law said to pay over the money as he owed this person money.On 9 May I paid over R85 000.00.  Two weeks later my brother in law wanted to know where the money was, and I sent him the proof of payment and email I received from his secretary.  It was then discovered that the email was hacked (on my brother in law's side) and details changed. He then told me that this happened to him before, but he was lucky enough to recover the money.I then made a fraud case at the SAPS, and then with ABSA who in turn opened the case with FNB.  So I'm not very well loved as you can imagine.  Just after all this happened I found out that my brother in law opened accounts for all his workers, not for their use, but to hide money.  This was one of those accounts.  According to my brother in law's ex wife, she found out about these accounts after their divorce.  He used these accounts to hide money so that it could not be used in the divorce settlement.I've shed a lot of tears about this money as I do not have it to pay back.  Up to now my brother in law kept on reminding me that by law I will be held accountable for the money.  What can I do in this case? Obviously I don't want to have a family fight, but he already insunated that we are on the way there.  A few months ago he told me he was thinking of writing off the money as the vehicle was sold to my sister in law, and he never really expected to even get paid for it.Unfortunately, my brother in law can be very mean and loves to play on emotions.  He knows I'm soft and instead of talking to my husband, he targets me the whole time.FNB did inform me today that the money was drawn from the account before my brother in law realised it in time to freeze the account.  I don't know the law very well, and cannot find a lot on Google.  

Thank you

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Answer to the Question

Posted by Att. Patrick on 11-12-2019 21:21:27

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

As an attorney dealing with other people's money in our trust account, we are held to a much higher standard than other people. It was in a recent High Court case that the Judge set out some things that attorneys were required to do in order to confirm people's banking details, so as to ensure that they were not caught up in a scam. One of these things was to phone the person directly and confirm the details over the telephone with them. This is what an attorney must do. 

You are not held to the same standard. If you emailed your brother-in-law to ask for the banking details, and your husband phoned him to confirm the name of the account, and he gave you these details and told your husband that everything was okay, then you have discharged any duty that you have to do right.

If you made the payment into the account he gave you, you've discharged your obligation, and he can have no further claim against you. 

He is not right that you still owe him the money. You've paid him - even though you paid into a fraudulent account. That was the account which his secretary gave you, on his instructions!

You need to stand your ground and tell him that you've spoken to an attorney and you now know that you are not liable for his loss. There is nothing stopping him from continuing the SAPS investigation.

Further to that, if the account is actually a fraudulent account which he has set up, and you actually paid the money into an account which he controls, then he might have committed fraud on you by making these allegations. I say this because he is trying to trick you into believing that the money is gone, when he actually took it himself! 

So, if he tries to get clever, you could always threaten him with reporting this to the SAPS!

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Information provided by client

Hi Patrick,

Thank you so much for your answer.

I was rambling yesterday, so just would like to clarify something.

They did email us the banking details on a pdf document, this email was intercepted by hackers I presume, and although the name was the same, the banking details was typed on the email body itself. There was a spelling mistake, but my brother in law is dyslexic so to me that is normal and no alarm went off. My husband phoned him and only talked about the name of the account holder, but the account number was never verified.

According to the bank, the account that the money was paid into, was of a black male, and not C Langeveldt as it should have been. The account numbers differs.

I just need to have all my ammunition ready, and this was my short cut to contact you as unfortunately living in a small town, all the lawyers know each other and everyone knows everyone so we don't want to do it via a local lawyer. I never knew of this until a friend referred me to you, and I will definitely use your services in the future!

Answer to the Question

Posted by Att. Patrick on 12-12-2019 12:09:11

Yes, I understood all that you said now from your first question. My advice stays the same. 

There is no legal duty on you to do more than you did do. Only attorneys are required to go the extra step.

At the end of the day, it was your brother-in-law's email account which was hacked, and his email was intercepted, and the fake email was then received by you. 

Your brother-in-law is at fault for not ensuring that his email account was secure. 

Answer Accepted

This answer was accepted on 12-12-2019 13:10:36

Information provided by client

Thank you for all your assistance, I really appreciate it!

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