Commercial Union Trade Finance v Republic Bottlers of SA (Pty) Ltd t/a Booth's Bottle Store

• Jurisdiction: South Africa
• Judge: Broome J
• Judgment Date: 04 June 1992
• Citation: 1992 (4) SA 728 (D)
• Hearing Date: 21 February 1992
• Court: Durban and Coast Local Division

Broome J:

Plaintiff claims provisional sentence on a cheque drawn by defendant in favour of plaintiff for R84 180,48. The claim is resisted by defendant who has delivered opposing affidavits which have been replied to by plaintiff. A number of defences have been raised in the affidavits and D argued by counsel.

It is not disputed that:

(a)

During March 1991 defendant drew the cheque in favour of plaintiff and postdated it 13 May 1991.

(b)

The cheque was drawn on Trust Bank - Jacobs (the drawee bank);

(c)

E On 17 March 1991 it was handed by plaintiff to Nedbank, Johannesburg, for collection.

(d)

Nedbank, Johannesburg, caused it to be 'presented' to the Trust Bank Administration Branch (TBAB) in Gale Street, Durban, who then caused it to be 'presented' through the Automatic Clearing Bureau System (ACBS) on 14 May 1991.

(e)

F What the TBAB did was to 'present' the cheque by utilising its computer link, that is the ACBS. This established that payment had been stopped by the drawer (defendant). ACBS marked the cheque 'payment stopped' in terms of the stop payment instruction, and returned it to Nedbank.

G There was no physical presentment of the cheque to the drawee bank and it did not come into the possession of that bank for payment to be requested according to its tenor.

In these circumstances, defendant denies that the cheque was duly presented in terms of, or as required by, the provisions of s 43(2)(c) of the Bills of Exchange Act 34 of 1964 ('the Act').

I do not propose to dwell too long on this point because I am satisfied, H on good and powerfully persuasive authority, presented by Mr Tobias for defendant, that what happened here did not constitute proper presentment. An identical issue was decided in this Court on 19 April 1991 by Squires J in the case of Canoa Importers (Pty) Ltd v R E Eddy and J T Henshaw. This I judgment was followed in this Court on 24 April 1992 by P C Combrinck J in the case of Navidas (Pty) Ltd v M H Essop. [*] Squires J was impressed with the reasoning of Bingham J (albeit sitting as an arbitrator in accordance with s 4 of the Administration of Justice Act

Broome J

A 1970) which is reported fully under the title Barclays Bank plc and Others v Bank of England [1985] 1 All ER 385 (Judge-Arbitrator). There is nothing that I can add to these judgments, other than -

(i)

to repeat that I find them good and powerfully persuasive; and

(ii)

that I agree with their conclusion.

B This is not the end of the matter.

Plaintiff's deponent, in his replying affidavit, made the contention that presentment had been dispensed with in terms of s 44(2)(c) of the Act because, as had been stated by defendant's deponent, Walmsley, in defendant's opposing affidavit, defendant stopped payment of the cheque. C It is not contended that his reasons for having done so established a probability that he would succeed in the principal case. But that does not affect the principle to be decided here, namely whether the circumstance, that payment of the cheque was stopped, absolved plaintiff from the duty to present it. Miss Niles-Dunér, for plaintiff, argued that presentment was indeed dispensed with. Mr Tobias met these arguments with two main D points, namely:

(1)

as plaintiff relied exclusively in its summons on the allegation that the cheque 'was duly presented by the plaintiff for payment and which was dishonoured by non-payment, the defendant having countermanded payment thereof on presentation for payment' it E could not make a new case in reply that presentment was unnecessary in law, having been dispensed with in terms of s 44(2)(c) of the Act; and

(2)

upon a proper construction of the relevant sections of the Act, a countermand communicated by the drawer to the payee bank is not covered by, or included in, the wording of s 44(2)(c), which is to F say that presentment was not dispensed with in terms of the Act.

As regards point (1), I do not consider this to be an instance in which plaintiff is making a new case in reply. What plaintiff alleged in its summons was that the amount in question was

'claimed by the plaintiff from the defendant under and by virtue of a G cheque for R84 180,48 drawn by the defendant in favour of the plaintiff, which cheque was duly presented by the plaintiff for payment and which was dishonoured by non-payment, the defendant having countermanded payment thereof on presentation for payment'.

It is trite that a plaintiff in provisional sentence proceedings is H obliged to establish his cause of action in his summons and that he may not do so in his replying affidavit. Plaintiff's cause of action here is founded upon a cheque drawn in its favour which, when duly presented, was dishonoured by non-payment, defendant having countermanded payment. In my view the facts necessary to sustain the cause of action have been recited sufficiently in the summons. Plaintiff's title and defendant's liability I appear ex facie the summons, and that is all that is required. If plaintiff had applied to amend the summons by adding the words 'alternatively presentment was dispensed with under s 44(2)(c) of the Act' I would have allowed the application. It introduced no new facts. All the essential allegations were made in the original summons. There could be no J conceivable prejudice to defendant. In these circumstances the contention

Broome J

A advanced in the plaintiff's replying affidavit does not amount to a new cause of action. It is a new contention based on the same facts.

As regards point (2), s 44 of the Act deals with the question of when presentment for payment may be delayed or dispensed with. As regards the question when notice of dishonour may be delayed or dispensed with, this is dealt with in s 48. There are significant differences in the wording of B these two sections, and Mr Tobias directed some argument to the effect of these differences. I will therefore quote both subsections in full.

Section 44(2) reads:

'44(2) Presentment for payment is dispensed with -

(a)

if after the exercise of reasonable diligence, presentment as C required by this Act...