Trust Bank of Africa Ltd v Marques

• Jurisdiction: South Africa
• Judge: Ludorf J and Nicholas J
• Judgment Date: 11 April 1968
• Court: Transvaal Provincial Division
• Hearing Date: 23 March 1968
• Citation: 1968 (2) SA 796 (T)

Nicholas, J.:

The present respondent (who was the plaintiff in the court C below, and will be referred to as such in this judgment) claimed payment of R1,000 damages in an action instituted in the Magistrate's Court at Johannesburg, from the present appellant (which I shall refer to as the defendant).

In his particulars of claim annexed to the summons, the plaintiff made the following allegations:

'(1)

At all material times herein the plaintiff was a customer of the D defendant's Bank and he had an account with the branch situate at corner Eloff and Bree Streets, Johannesburg.

(2)

It was an implied term of the agreement between the plaintiff and the defendant that the defendant would honour cheques properly drawn upon the said account if there were sufficient funds available to the credit of the said account to meet the said cheques on their being presented for payment.

(3)

E In breach of its obligation aforesaid the defendant dishonoured six cheques properly drawn by the plaintiff upon the said account, particulars of which are as follows:

Date drawn	Name of payee	Amount
7th June, 1966.	United Auctioneering Co.	R50
7th June, 1966.	H. L. Shippel & Co. (Pty.)	R150
7th June, 1966.	Cyril Wides, E. Chain & Co.	R31
	Henry Tucker	R30
11th June, 1966.	Industrial Fresh Meat Supply	R94
8th June, 1966.	Premier Cold Storage	R54.65

(4)

F The said cheques were dishonoured upon being presented for payment despite the fact that there were funds sufficient and available to meet them in the said account at the time of presentment thereof.

(5)

In the premises the defendant was in breach of its contract with the plaintiff who has suffered damages as a result of the said G breach in an amount of R1,000.

(6)

Alternatively to paras. 3, 4 and 5 above:

(a)

The defendant had a duty of care to the plaintiff not to dishonour the cheques mentioned in para. 3 hereof if the said account had funds fufficient and available to meet them.

(b)

The defendant did dishonour the said cheques despite the fact that H the said account had funds sufficient and available to meet them. The said dishonour was due to the negligence of a servant or servants of the defendant, whose name or names are to the plaintiff unknown, his or their negligence consisting of a failure to take reasonable or any steps to ascertain whether the account of the plaintiff was in credit at the time.

(c)

As a result of the said negligence the plaintiff has suffered damages in the sum of R1,000.

Wherefore the plaintiff claims:

A. Payment of the sum of R1,000.

B. Alternative relief.

C. Costs of suit.'

Nicholas J

The defendant in its plea admitted that it dishonoured the cheques referred to in para. (3) of the particulars of claim, but denied each of the remaining allegations contained therein.

A After hearing evidence, the magistrate granted judgment in favour of the plaintiff for the sum of R500.

The defendant now appeals against the magistrate's order on the ground, inter alia, that the plaintiff had failed to show that he was entitled in law to any damages. In my view that point is well taken and it will B accordingly not be necessary to deal in any detail with the facts...