Absa Bank Ltd v Standard Bank of SA Ltd

• Jurisdiction: South Africa
• Judge: van Heerden DCJ, Mahomed CJ, Eksteen JA, Nienaber JA, Van Coller AJA
• Judgment Date: 19 September 1997
• Citation: 1998 (1) SA 242 (SCA)
• Docket Number: 578/95
• Hearing Date: 11 September 1997
• Counsel: J Strauss for the appellant Z F Joubert for the respondent
• Court: Supreme Court of Appeal

Van Heerden D C J:

In terms of the provisions of s 54 of the Deposit-taking Institutions Act (now the Banks Act) 94 of 1990 the appellant during 1991 became the legal successor to D Volkskas Bank Ltd ('Volkskas'). The cause of action upon which the respondent relied in the Court a quo arose subsequent to that date but in the pleadings and the evidence there are any number of references to Volkskas. In order to obviate confusion I shall treat those as references to the appellant.

Before and during October and November 1991 one Horn and Unitrans Bulk (Pty) Ltd E ('Unitrans') were holders of current banking accounts at respectively the appellant's Pretoria branch and the respondent's Steeldale branch. On 24 October 1991 a cheque for R150 000, which purported to be drawn by Unitrans on the respondent in favour of Horn, was deposited into the latter's account. The cheque was then presented by the appellant to the respondent's F Steeldale branch and on the same day the respondent caused payment of the sum of R150 000 to be effected to the appellant for the credit of Horn's account. At that stage the account was overdrawn to the tune of R81 843,94 and a book entry made by the appellant therefore transformed the debit into a credit of R68 156,06. G

Towards the end of October it transpired that the signatures on behalf of Unitrans as drawer of the cheque had been forged, and on 1 November the respondent notified the appellant by telefax that the cheque 'bears forged signatures'. By then the respondent had already debited the account of Unitrans with the sum of R150 000 in the mistaken belief that the signatures H were genuine. However, subsequent to 1 November the respondent, as it was obliged to do, reversed the debit and consequently found itself out of pocket in that amount. For this reason it obtained a court order in terms of which the sum of R66 643,84, reflected in the appellant's books as standing to the credit of Horn's account, was attached by the deputy sheriff. For I some unexplained reason, however, only R64 149,09 was eventually paid to the respondent.

In ensuing correspondence the respondent sought payment from the appellant of the difference between R150 000 and R66 643,84. When the latter refused to comply with the demand the respondent instituted action in the Transvaal Provincial Division against the appellant, as first defendant, and Horn as second defendant. In that action...