Sufficient to establish the mental element of theft for the purposes of the condictio furtiva that the defendant knew that the money was not due to them or shut their eyes to that possibility—sufficient to satisfy the requirement of appropriation or contrectatio that the defendants had “taken” electronic funds, ie, physical handling not necessary—not fatal to the condictio furtiva that stolen money received via an intermediary or that it has co-mingled with other money in that intermediary’s bank account

The plaintiffs were the joint liquidators of the Small and Medium Enterprises Bank Ltd, a company in liquidation. They discovered that an amount in excess of R253 million (approximately £10.5 million) had been stolen from SME’s bank account and received by both immediate and remote recipients. In particular, they alleged that an amount of around R79.8 million (approximately £3.3 million) had been laundered through an entity known as AMFS and an amount of about R1 million (approximately £42,000) on-paid into the bank account of the first defendant by way of electronic transfer, while amounts totalling about R10.3 million (approximately £4.3 million) had been on-paid into the bank account of the second defendant, again by electronic transfer. The plaintiffs advanced various causes of action in relation to the stolen money received by the first and second defendants, one of which took the form of the condictio furtiva. The first and second defendants excepted to this claim.

Decision: Exception dismissed.

Held: The condictio furtiva, generally understood to arise in delict, lies at the instance of the owner of a stolen thing (or one who has an interest in it) against the thief. Accordingly, it was necessary for the plaintiff in such an action to establish that the defendant had stolen the thing in question.

The plaintiffs’ pleadings contained sufficient averments to substantiate the condictio furtiva if proven at trial.

Regarding first the required intention, theft was defined differently for the purposes of delict than it was in criminal law: see Chetty v Italtile Ceramics Ltd [2012] ZASCA 170; 2013 (3) SA 374 (SCA). In particular, in establishing theft for the purposes of delict, it was not necessary to prove an intention to deprive the plaintiff of the whole benefit of his ownership. Thus, it was sufficient that the plaintiffs had alleged that the first and second defendants knew that the money was not due to them or had shut their eyes to