Case Comments: Provisional Sentence and the Collecting Bank
| Jurisdiction | South Africa |
| Published date | 25 May 2019 |
| Date | 25 May 2019 |
| Pages | 417-419 |
| Citation | (1999) 11 SA Merc LJ 417 |
| Author | JT Pretorius |
Case Comments/Vonnisbesprekings
Provisional Sentence and the Collecting Bank
JT PRETORIUS
University of South Africa
1 Introduction
In general, for purposes of provisional sentence the plaintiff's title must
appear ex facie the document sued upon
(Coetzee & Solomon Real Estate
(Pty) Ltd v Texeira
(D)
at 96C—E;
African Lumber Co
(Pvt) v Katz
1978 (4) SA 432 (C) at 437E-438G). But the principle that the
document 'must be sufficient in itself to prove the debt'
(Fraser & Chalmers
South Africa (Pty) Ltd v Tuckers Land Development Corporation (Pty)
Ltd
1977 (2) SA 465 (W) at 468A—C)) has been tempered over the years
(Barlow Rand Ltd t/a Barlow Noordelik Masjinerie Maatskappy v Self-Arc
(Pty) Ltd
1986 (4) SA 488 (T); JT Pretorius 'Law of Negotiable
Instruments' 1992
Annual Survey of South African Law
301-303; and
Herbstein & Van Winsen The Civil Practice of the Supreme Court of South
Africa
4 ed (1997) by the late Louis de Villiers van Winsen, Andries Charl
Cilliers & Cheryl Loots (edited by Mervyn Dendy) at 968). In certain
circumstances, where the title of the claimant does not appear from the
document, for example in the case of an executor in a deceased estate
(Herbstein & Van Winsen
op cit at 968 and the authority quoted there in
n79) or the judicial manager of a company
(Wiehahn NO v Wouda
1957 (4)
SA 724 (W) at 726B—C;
De Villiers & others NNO v Electronic Media
Network (Pty) Ltd
1991 (2) SA 180 (W) at 184A) or the holder of a cheque
made payable to bearer (FR Malan, AN Oelofse, W le R de Vos,
JT Pretorius & CJ Nagel
Provisional Sentence on Bills of Exchange,
Cheques and Promissory Notes
(1986) at 38 (hereafter Malan et al)), an
appropriate averment in the summons identifying the plaintiff has been
permitted
(Chamani v St Ives Trading Co (Pty) Ltd
(D)
at
640B-642B, cited with apparent approval in
Barlow Rand Ltd t/a Barlow
Noordelik Masjinerie Maatskappy v Self-Arc (Pty) Ltd
supra at 491G—J;
and
Herbstein & Van Winsen
op cit at 968).
2 Section 84 of the Bills of Exchange Act
Section 84 of the Bills of Exchange Act 34 of 1964 provides that where
a cheque (or certain other documents) which is payable to order, is
delivered by the holder to a banker for collection, and such a cheque (or
other document) is not indorsed or irregularly indorsed by that holder,
'such banker shall have such rights, if any, as he would have had if, upon
such delivery, the holder had indorsed it in blank'.
417
(1999) 11 SA Merc LJ 417
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