FirstRand Bank Ltd v Nedbank (Swaziland) Ltd

• Jurisdiction: South Africa
• Judge: Scott JA, Mthiyane JA, Nugent JA, Lewis JA and Ponnan AJA
• Judgment Date: 30 March 2004
• Citation: 2004 (6) SA 317 (SCA)
• Docket Number: 01/03
• Hearing Date: 23 March 2004
• Counsel: W H G van der Linde SC (with him A E Bam) for the appellant. J G Wasserman SC for the respondent.
• Court: Supreme Court of Appeal

Scott JA: D

[1] The appellant is a registered commercial bank with its principal place of business at Bank City, Johannesburg. The respondent is a bank registered in Swaziland. On 20 July 2000 the respondent caused a summons issued out of the High Court, Johannesburg, to be served on the appellant. On 26 June 2001, after the period of prescription had elapsed, the respondent delivered a notice of amendment. The notice was subsequently withdrawn E and replaced by a notice delivered on 2 October 2001. Two further amendments followed but nothing turns on these. The appellant filed a special plea in which it raised the defence of prescription. It pleaded, in effect, that the debt which the respondent sought to recover in the claim, as amended, was different from the debt F originally relied upon, that service of the summons and particulars of claim on 20 July 2000 had not interrupted the running of prescription, and that the respondent's claim, as amended, had accordingly prescribed. The parties agreed upon a written statement of facts and the Court a quo was called upon to decide the issue of prescription by way of a special case in terms of Rule 33(1) of the Uniform Rules of Court. The matter came before Snyders J who G dismissed the special plea with costs, holding that the original summons interrupted prescription in respect of the debt which the respondent was seeking to recover in the claim as amended. The appeal is with the leave of the Court a quo.

[2] In the original particulars of claim the respondent sued as a cessionary of a claim which Swaziland Timber Products Ltd (Swazi H Timber) had against the appellant based on the latter's unjustified enrichment at the expense of the former. The allegations made in support of the claim were briefly the following. Swazi Timber operated an account at the respondent's Matsapha branch, Swaziland. The I respondent, in turn, had an automated clearing bureau account with Nedcor Bank Ltd (Nedcor) in South Africa which it used for the purpose of clearing cheques drawn on or by it and presented for payment in South Africa. A Mr Cawood and a company, Diamond Laser Bureau (Pty) Ltd (Diamond Laser), operated current accounts at the appellant's J

Scott JA

Birnam branch in Johannesburg. The accounts were overdrawn and Cawood and A Diamond Laser were unable to settle their indebtedness to the appellant. During September 1997 Cawood, who was employed by Swazi Timber, removed cheques which had been signed in blank by duly authorised signatories of Swazi Timber and inserted his own name, and that of Diamond Laser, as payees of the cheques. These he deposited in his and Diamond Laser's accounts at the appellant's Birnam branch. B Swazi Timber instructed the respondent to stop payment of the cheques but agreed that it had 'no claim against the bank in the event of such document being inadvertently paid by the bank'. Despite Swazi Timber's instruction, Nedcor paid the proceeds of the cheques to the appellant as collecting banker and debited the respondent's automated clearing bureau account. The respondent, in turn, debited C the account of Swazi Timber with the amount of the cheques with the result, so it was alleged, that Swazi Timber was impoverished and the appellant was...