Cell phone sim swap (201605-0007383) [2016] ZACGSO 13 (8 July 2016)

Cell phone sim swap (201605-0007383) [2016] ZACGSO 13 (8 July 2016)

The Ombud found that the complainant was a victim of phishing fraud, which led to the loss of R144,000.00. While a SIM swap was performed, the evidence did not establish that the supplier's actions directly enabled the fraudster to access the complainant's bank account. The precedent set in Nashua Mobile (Pty) Ltd v GC Pale CC t/a Invasive Plant Solutions confirms that liability cannot be imputed to the supplier in delict unless it is shown that the supplier negligently provided all the necessary information for the fraud. The disclosure of banking details was the ultimate cause of the loss, and the supplier's conduct was not the proximate cause. Therefore, the supplier cannot be held...

Citation
[2016] ZACGSO 13
Parties
Applicant: Complainant; Respondent: Supplier; Respondent: Bank
Court
Consumer Goods and Services Ombud
Jurisdiction
South Africa
Judgment Date
8 July 2016
Case Number
201605-0007383
Procedural Posture
Consumer Complaint / Final Determination
Outcome
The complaint is dismissed. The supplier is not liable for the complainant's loss resulting from SIM swap and phishing fraud.
Legal Topics
Sim Swap Liability, Banking Fraud, Negligence, Causation, Consumer Protection Act
Delict Commercial and Corporate Sim Swap Liability Banking Fraud Negligence Causation Consumer Protection Act

Case Brief

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Parties

Complainant

Applicant

Supplier

Respondent

Bank

Respondent

Procedural Posture

Consumer Complaint / Final Determination

Legal Issues

  1. 1 Is the cell phone service provider liable in delict for losses suffered due to an illegal SIM swap?
  2. 2 Does the supplier bear responsibility for the complainant's banking loss resulting from phishing and SIM swap fraud?
  3. 3 Is there a causal link between the supplier's conduct and the complainant's loss sufficient to establish liability?

Ratio Decidendi

The Ombud found that the complainant was a victim of phishing fraud, which led to the loss of R144,000.00. While a SIM swap was performed, the evidence did not establish that the supplier's actions directly enabled the fraudster to access the complainant's bank account. The precedent set in Nashua Mobile (Pty) Ltd v GC Pale CC t/a Invasive Plant Solutions confirms that liability cannot be imputed to the supplier in delict unless it is shown that the supplier negligently provided all the necessary information for the fraud. The disclosure of banking details was the ultimate cause of the loss, and the supplier's conduct was not the proximate cause. Therefore, the supplier cannot be held...

Court Disposition

The complaint is dismissed. The supplier is not liable for the complainant's loss resulting from SIM swap and phishing fraud.

Orders

  • The supplier is not required to compensate the complainant for the losses suffered.
  • The file is closed by the Consumer Goods and Services Ombud.