Abraham v Du Plessis

• Jurisdiction: South Africa
• Judgment Date: 27 April 1962
• Citation: 1962 (3) SA 162 (T)

Abraham v Du Plessis
1962 (3) SA 162 (T)

1962 (3) SA p162

Citation	1962 (3) SA 162 (T)
Court	Transvaal Provincial Division
Judge	Trollip J
Heard	March 27-28, 1962; March 29, 1962
Judgment	April 27, 1962

Flynote : Sleutelwoorde

Provisional sentence — Presentment — Proof of — By G affidavit — What constitutes — Grounds of defence — Fraud — Sec. 28 (2) of Proc. 11 of 1902 (T) — Only applies where fraud admitted or proved — Possibility of defendant having been defrauded by payee — Not a ground for refusing — Bills of exchange — Negotiation — Endorsement for collection — H Cancellation of after dishonour — Effect — Original rights restored to owner and holder.

Headnote : Kopnota

In the Transvaal proof of due presentment is required in actions for provisional sentence on a bill of exchange, even where the allegation of due presentment is not denied, but a notarial certificate of presentment is no longer necessary. Such proof can now be tendered by way of affidavit. That does not mean that a specific affidavit proving presentment must necessarily be handed in. All that it means is that it must appear from all the affidavits and documents filed, read with the summons, that due presentment is satisfactorily proved by the plaintiff, the onus of proving that being on him.

1962 (3) SA p163

Generally, in the absence of any indication to the contrary, where on dishonour an endorsement for collection is cancelled and the instrument is returned to the owner and previous holder, that does not constitute a re-negotiation to him but merely a restoration of his previous status and rights as owner and holder. Even where there is a re-negotiation, however, the result is normally the same, for an instrument normally remains negotiable despite its dishonour and the original owner and A holder would normally regain the same rights when the instrument was re-negotiated back to him.

Section 28 (2) of the Bills of Exchange Proclamation, 11 of 1902 (T), only applies where fraud is admitted or proved. The possibility of the maker having been defrauded by the payee of a promissory note does not constitute 'special circumstances' for the Court's exercising its discretion to refuse provisional sentence against the maker at the instance of the holder of the promissory note. B

Case Information

Action for provisional sentence. The facts appear from the reasons for judgment.

Z. Sutej, for the plaintiff.

J. P. Roux, for the defendant.

Cur. adv. vult. C

Postea (April 27th).

Judgment

D Trollip, J.:

This is an action for provisional sentence on a promissory note for R1,100, made by the defendant on the 1st February, 1961, in favour of his uncle, J. J. du Plessis, or order, payable on the 1st June, 1961, at Barclays Bank D.C.O., Delareyville. The plaintiff alleges that he became the lawful holder thereof, that it was duly presented at the stipulated place, and that it was dishonoured.

E At the hearing, provisional sentence was opposed on three grounds:

(a)

That there was no satisfactory proof that the instrument had been duly presented for payment;

(b)

That the plaintiff was not, or he had not duly proved that he was, the holder or the holder in due course;

(c)

That the defendant has satisfactorily shown on the affidavits that he would probably succeed at the trial in proving that plaintiff's title to the instrument was defective.

I shall deal with each ground of opposition in turn. (a) As the instrument was made payable at a particular place, namely, Barclays Bank G D.C.O., Delareyville, it had to be presented there for payment in order to render the defendant liable (sec. 86 (1) of the Transvaal Bills of Exchange Proclamation). It was not alleged or contended that presentment was dispensed with or waived. On the contrary, it was alleged in the summons that it was duly presented for payment. That was not denied by the defendant in his affidavits, but defendant, through his counsel, H contended at the hearing that the plaintiff still had to prove due presentment, and that he had failed to do so.

The decided cases on the need to prove presentment, and the nature and extent of the proof required in the present circumstances, are not harmonious. In Natal it has been laid down that it is sufficient for the plaintiff merely to aver in the summons that there has been due presentment at the stipulated place, and if the defendant does not deny it, the plaintiff need not furnish any proof thereof at the hearing (Todd v Els,

1962 (3) SA p164

Trollip J

1952 (3) SA 832 (N) at p. 835 C - D). I think that there is much to commend that view. It represents a happy development in the process of simplifying the useful and much used procedure of provisional sentence, A the process that received its fillip from Pepler v Hirschberg, 1920 CPD 438. This process has been described by ROPER, J., in Abromowitz v Jacquet and Another (2), 1950 (2) SA 564 (W) at pp. 567 - 71. Logically it would now seem to be unnecessary to have to prove presentment as against the maker when it has been duly averred in the B summons and is not denied by him; the only purpose that it would seem to serve is to increase the costs, which does not appear to me to be a compelling reason for the retention of the practice. There is some indication that the Transvaal was at one stage tending towards adopting the same practice as Natal. In Allied Holdings Ltd v Myerson, 1948 (2) SA 961 (W), PRICE, J., (as he then was), in dealing with the general C principles applicable to provisional sentence cases, said (pp. 967 - 8):

'The matter has been somewhat confused by passages in some of the authorities which say that the primary onus, even in a provisional sentence case, is on the plaintiff. This only means that there are certain issues which the plaintiff has to prove if these issues are put in dispute. Initially the plaintiff has to prove nothing. He merely alleges in the summons that he is the holder of a liquid document which D the defendant has signed and he hands in the document. He is then entitled to judgment. But if the defendant disputes any of the allegations in the plaintiff's summons, for instance if he denies his signature, then the onus is on the plaintiff to prove that the defendant did sign that document. Similarly if ex facie the document some condition has to be fulfilled before the plaintiff is entitled to payment, the plaintiff must, in his summons, allege fulfilment of that condition, and if the defendant denies that the condition has been E fulfilled, the plaintiff must prove that he has performed the condition before he is entitled to judgment. But it is only in this sense that there is an onus on a plaintiff in a provisional sentence case. He only has to prove those things which it is necessary for him to allege in his summons if they are disputed.'

In Nelson v Mears, 1949 (1) SA 154 (W), RAMSBOTTOM, J., (as he then was) apparently acted on those principles when he granted provisional F sentence in an undefended action where presentment was averred in the summons and was not denied by the defendant, but presentment was not otherwise proved. However, in subsequent cases that trend was abruptly arrested and proof of presentment was insisted upon, notably in Johannesburg Suburban Properties (Pty.) Ltd v Port and Others, 1950 (2) SA 686 (W) G , by...