Mr Nigel Sithole sued the bank after an imposter
fraudulently opened a bank account in his name to dupe members of the public of
their money through a car hire-to-buy scheme posing as the lawyer to gain
people’s trust. Those entering the scheme would deposit money into the banking
account number 6017042200218469 held with FBC Bank.
The scam came to Mr
Sithole’s attention on January 31 this year when a Facebook user called
Samantha Ndaba posted on his Facebook page demanding repayment for the money
that he had allegedly swindled from her. Upon engaging the woman, Mr Sithole
discovered that some person unknown to him had opened a bank account with FBC
Bank in his name.
The person was advertising the sale of cars was luring
victims to part with their money under the belief that they were dealing with
the lawyer.
Mr Sithole reported the matter to police and the Law
Society of Zimbabwe. He also made an official complaint to the bank’s security
and loss control department, where it was established that the imposter had
even used a fictitious address, number 1034 Mabvuku.
A bid to trace the imposter reached a dead end and the bank
went on to shut the fraudulently opened account. After engaging the bank, Mr
Sithole subsequently sued the FBC Bank along with the Reserve Bank of Zimbabwe.
He sought an order
compelling the bank to shut the bank’s three digital banking platforms: the
mobile banking platform under USSD quick code*220#; WhatsApp digital banking
platform marketed as Noku under WhatsApp number +263 776670211 and the mobile
software application called Mobile Moola App.
He argued that the digital banking platforms were operating
in breach of the provisions of the Money Laundering and Proceeds of Crime Act
with little regard to Know Your-Client verification process provided for in the
Act.
But Justice Esther Muremba dismissed the application,
saying Mr Sithole had failed to establish that FBC Bank was liable for the
relief he was seeking. It was the court’s finding that Mr Sithole did not have
a cause of action under the Act.
Justice Muremba said Mr Sithole could not claim that he was
suing in contract simply because he had given a narration of events he said entitled
him to the relief. A contract which was fraudulently entered into in the name
of another person without their knowledge and consent was not consistent with
the doctrine of freedom of contract.
“As such, such a contract was not valid and it created no
rights and obligations between the parties,” she said. None of the parties
could act and sue upon it. Since Mr Sithole did not open an account with FBC
and neither did he authorise anyone to open an account on his behalf, so he had
no contract with the bank for him to sue it, ruled Justice Muremba.
“There is no cause of action which entitles that applicant
to be granted the reliefs that he is seeking,” she said.In her ruling, Justice
Muremba noted that Mr Sithole suffered harm as a result of the bank account
that was opened with FBC Bank by an imposter in his name.
She agreed with Mr Sithole that FBC Bank created a system
that was open to abuse as evidenced by the fact that Ms Ndaba was duped into
depositing money into the fictitious account. However, it was the court’s final
ruling that an interdict was appropriate only when future injury was feared.
This meant Mr Sithole had the onus to establish on a
balance probability that there were grounds for a reasonable apprehension that
the injury that occurred to him would be repeated in future, which he failed to
do. Herald
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