Cooper and Cooper v Ebrahim

• Jurisdiction: South Africa
• Judge: Dowling J
• Judgment Date: 03 March 1959
• Court: Transvaal Provincial Division
• Hearing Date: 03 November 1958
• Citation: 1959 (4) SA 27 (T)

Dowling, J.:

The plaintiff's sue for provisional sentence for the sum of £305 and costs on a cheque drawn by defendant in propria persona. It is alleged in the summons that this cheque was presented for payment and D dishonoured on the 3rd July, 1958. A notarial deed of presentation annexed to the summons shows that the cheque was presented for payment on the 11th July and dishonoured. Mr. Miller for the defendant, took the point in limine that there was a variance as to the date of dishonour which disentitled the plaintiffs to relief. The summons is headed:

E 'Israel Cooper and Abraham Joseph Cooper trading in co-partnership as Cooper and Cooper (plaintiff)

and

Omar Ebrahim (defendant.)'

In the body thereof the summons calls on the defendant to pay

'Israel Cooper and/or Abraham Joseph Cooper, Attorneys of: 303, Lewis and Marks Bldgs., 65, President Street, Johannesburg., trading in co-partnership as Cooper & Cooper., (hereafter referred to as the plaintiffs.)'

F Mr. Miller claims that the summons is bad because plaintiff partners had not been properly 'cited'. I cannot understand this objection. Mr. Miller referred to Gubler v Peycke & Co., 1903 T.H. 133, in which it was held (in 1903) that a provisional summons was bad because the names of the individual partners had not been set out therein. That cannot be G said of the present summons and it seems to me that the objection is somewhat frivolous.

As regards the first point, it was common cause on the papers that the cheque had been dishonoured and this objection has no substance. Mr. Miller relied on certain cases, Webb v Coetzee, 1951 (2) SA 176 (W), H and Resnik v Habib and Others, 1956 (1) SA 134 (T). These were provisional sentence cases and there was no proof that the note or cheque had been presented at all. The cases do not assist Mr. Miller.

The point of substance in the case is the defence that the cheque was given for an illegal consideration. The facts were that certain creditor (Newnit Textiles Industries (Pty.) Ltd.) which I shall refer to as the creditor, of a company, Adams Brothers (Pty.) Ltd., of which the defendant was a director, had a claim against the first mentioned company. A meeting of creditors was held on the 22nd May. 1958 and

Dowling J

on the 3rd July the Court confirmed the acceptance at that meeting of an offer of compromise under sec. 103 of the Companies Act 46 of 1926 as amended. This compromise made provision for payment of 7s. 6d. in the pound to unsecured...