Bond Equipment (Pretoria) (Pty) Ltd v Absa Bank Ltd

• Jurisdiction: South Africa
• Judge: Willis AJ
• Judgment Date: 14 August 1998
• Citation: 1999 (2) SA 63 (W)
• Docket Number: 23665/96
• Hearing Date: 13 August 1998
• Counsel: JF Roos for the plaintiff H Van Eeden for the defendant
• Court: Witwatersrand Local Division

Willis AJ:

This is an action in which the claim arises from the defendant's allegedly negligent collection of certain cheques. The parties have come to Court by way of a stated case setting out certain agreed facts and I questions of law upon which I have been asked to make a determination.

The stated case reads as follows:'The facts recorded below are common cause between the parties for the purposes of determining the issues set out hereunder:

Willis AJ

Agreed facts A

1.

The South African Defence Force/National Defence Force/the defendant (''the debtors'') were indebted to pay certain amounts to the plaintiff (''the debits'').

2.

In settlement of the debts the debtors drew cheques, annexures B1—N to the summons. All the B cheques except annexure B were delivered to A J Steyn (''Steyn''), plaintiff's duly authorised employee at the office of the Chief Payment Officer, Department of Finance, Poynton's Building, Kerk Street West, Pretoria. Annexure B was delivered to Steyn at Trust Bank, Andries Street, Pretoria. C

3.

Particulars of these cheques are as follows:

3.1

They were all drawn as reflected on the copies of the cheques which are annexures B1—N to the summons respectively.

3.2

They were all crossed and endorsed either ''not transferable'' or ''not negotiable''. D

3.3

The cheques crossed and endorsed ''not negotiable'' were at no stage endorsed or negotiated by the plaintiff.

3.4

Annexure ''I'' was endorsed by Steyn without plaintiff's knowledge or authority.

4.

Steyn obtained possession of the cheques and unlawfully caused them to be deposited to the account E of ''Bond Equipment (Pretoria)'', an account conducted by Steyn under this name with the defendant.

5.

The defendant, as collecting bank, owed the true owner of the cheques a duty to take care that it did F not negligently collect payment of the cheques for the benefit of anyone not entitled thereto.

6.

The defendant collected payment of all of the cheques for Bond Equipment (Pretoria).

7.

The banks on which the cheques were drawn honoured the cheques in circumstances which do not G render these banks liable against the plaintiff or the debtors.

8.

The depositing for collection of the cheques by Steyn and the unlawful appropriation by him of the proceeds thereof were delicts committed by Steyn. H

9.

Should the first question of law be answered affirmatively, then the quantum of the plaintiff's loss suffered as a result of the aforementioned facts is the aggregate total of the face value of the cheques being an amount of R219 783,74.

10.

The plaintiff has instituted action against the defendant. Steyn is not a party to these proceedings and I the plaintiff has not instituted any civil action against Steyn.

11.

When Steyn stole the cheques from the plaintiff he was an employee of the plaintiff and the opportunity to steal the cheques arose during the course and scope of such employment. The cheques so received and stolen by Steyn were not reflected in the J

Willis AJ

plaintiff's records as having been received by the plaintiff and it was only between March and April A 1996 that plaintiff became aware of the thefts.

Questions of law

1.

Did plaintiff become the owner of the cheques? B

2.

Is the plaintiff in law vicariously liable for the actions of Steyn?

3.

Is the defendant's conduct in collecting payment of all the cheques for Bond Equipment (Pretoria) a breach of its duty as set out in para 5 of the stated case?

4.

Is the effect of the cheques being honoured by the banks on which they were drawn, as set out in para C 7 of the stated case, that the cheques and the underlying debts which they represented were discharged?

5.

Is the plaintiff's conduct as set out above the proximate cause of the plaintiff's loss?

6.

Is the defendant liable to the plaintiff for any negligent actions performed by its employees in view of D Steyn's conduct as aforesaid; alternatively, if Steyn's action as aforesaid also contributed to the plaintiff's loss and the plaintiff is vicariously liable for Steyn's action, what apportionment of damages should be ordered in terms of the Apportionment of Damages Act 34 of 1956?' E

The parties agreed that consequent upon my decision with regard to these questions, I should make an appropriate order. The parties also addressed me with regard to the question of costs, the scale of which was reserved in respect of the hearing on 22 September 1997. F

I shall deal with each of these questions in turn.

1.

Did the plaintiff become the owner of the cheques, Annexures B1—N to the summons?

In my view it is quite clear from the facts as set out in paras 2 and 11 of the stated case that the plaintiff did indeed become the owner of the cheques in question. See First National Bank of SA Ltd v Quality Tyres G (1970) (Pty) Ltd 1995 (3) SA 556 (A) at 568F—J and APA Network Consultants (Pty) Ltd v ABSA Bank Ltd 1996 (1) SA 1159 (W) at 1167I—1169E.

2.

Is the plaintiff in law vicariously liable for the actions of Steyn? H

This question should perhaps more precisely have been phrased as follows: is the plaintiff in law vicariously liable to whom?; or, more particularly, is the plaintiff in law vicariously liable to the defendant? From a...