Greater Johannesburg Transitional Metropolitan Council v Absa Bank Ltd t/a Volkskas Bank

• Jurisdiction: South Africa
• Judge: Goldstein J
• Judgment Date: 29 July 1996
• Counsel: P J Van Blerk (with him SS Cohen) for the plaintiff T W Beckerling for the defendant
• Docket Number: 93/23437
• Court: Witwatersrand Local Division

Goldstein J: A

Introduction

The plaintiff sues the defendant for damages. Only limited evidence was led before me, B the parties having agreed on the facts reflected in a document handed in as exh B. Broadly speaking, such facts amount to this: during the period January to September 1991, one G Thoms, who was in the employ of the Soweto City Council (being a body to which I shall refer as the SCC and which was later dissolved and the assets and liabilities of which were transferred to the plaintiff) stole 8 cheques drawn by a C body known as the Central Witwatersrand Regional Services Council ('the RSC') in favour of the SCC and handed them to his accomplice, a Mrs Van der Walt (also known as Thoms) who was in the employ of the defendant bank at its Rosettenville branch, and caused the proceeds of the cheques to be credited to accounts other than D that of the SCC, causing it to lose the amounts reflected on each of such cheques.

The damages for which the plaintiff now sues represent such amounts, of which there are eight.

There is in respect of each amount a main claim and an alternative claim - each for the E same relief and the parties are agreed that I determine only the alternative claims at this stage. The eight main and alternative claims are numbered A to H. Claim I in the particulars of claim has fallen away.

The facts in each of the alternative claims are substantially the same and thus the parties have agreed that I decide only alternative claim A and that the fate of alternative claims F B–H follow that of alternative claim A. I accordingly proceed to deal only with alternative claim A.

Main claim A was contained in the SCC's summons issued on 30 April 1993, and served on the defendant on 31 August 1993. Alternative claim A was introduced by the plaintiff by an amendment dated 15 February 1995. Subsequent minor G amendments were made to the plaintiff's particulars of claim by notice dated 8 March 1996. Most of the facts were agreed to between the parties. The plaintiff called two witnesses who gave short evidence and the defendant none.

The agreed facts H

The agreed facts are expressed in exh B as follows:

'1.

For purposes of the alternative claim only and without the right to rely thereon for the main claim the parties agree to the facts set out hereunder.

2.

The procedure for the deposit for purposes of collection of a cheque drawn I on a bank other than the drawee bank applicable at the Rosettenville branch of the defendant at the relevant time (save in respect of cheques received for such purposes by mail or via ATM deposits) was the following:

2.1

An account deposit voucher ("the voucher") in the form of the example annexed hereto marked AF1 is completed by the J

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depositor as to date, name of account, number of account, name of A drawer and amount of the cheque to be deposited, and signed by the depositor.

2.2

The voucher and the cheque are handed to a teller who stamps both of them with a rubber stamp, the imprint of which bears the name of the B bank and branch, the date and a number assigned to the teller.

2.3

The voucher and cheque (with others) is sent to a controller (nasienbeampte) who is required to check the cheque(s) and corresponding voucher(s) to ensure inter alia:

2.3.1

that each cheque and voucher correspond as far as the payee C and depositor are concerned;

2.3.2

whether there are any crossings and corresponding endorsements on the cheque;

2.3.3

as to errors or defects on the cheque.

2.4

When satisfied that all is in order, the controller sorts, bundles and packs the cheques and vouchers for purposes of despatch; before the D introduction of the Central Processing Bureau ("CPB") the vouchers were not despatched.

2.5

The cheques are despatched to CPB and from there to the Automated Clearing Bureau ("the ACB") (save that before 8 April 1991 they went directly to the ACB). E

2.6

At the ACB a process is followed which results in:

2.6.1

the drawee bank's client being debited in respect of the amount of the cheque;

2.6.2

the collecting bank at which the deposit was made being credited. F

2.7

The collecting bank will have credited its customer with the amount of the cheque on a provisional basis prior to the despatch of the cheque which entry is confirmed by the passing of the credit as set out in 2.6.2 hereof.

3.

It is agreed that:

3.1

The person described in pleadings (sic) as Mrs Thoms who prefers to G be known by her correct name Mrs Van der Walt ("Van der Walt"), was a controller at the relevant times at the Rosettenville branch of the defendant.

3.2

Van der Walt's functions included the functions described in para 1 commencing with the words "Mrs Thoms" of the further particulars H furnished by the defendant (pleading pp 118–19) and the functions set out in 2.3, 2.4 and 2.5 hereof.

3.3

Each of the cheques in question in this action:

3.3.1

was collected by Thoms from the offices of the Regional Services Council in circumstances which will be described more fully in evidence; I

3.3.2

had a forged endorsement signed thereon by Thoms professing to be on behalf of the plaintiff;

3.3.3

was handed to Van der Walt.

3.4

In the case of each cheque concerned with this action, Van der Walt completed a normal account deposit voucher in the normal way, stamped it and the cheque with the office rubber J

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stamp (the imprint of which differs from the teller's stamp in that there is A no number thereon assigned to a teller) and thereafter completed the process in respect of the cheques as if they had been deposited properly.

3.5

In respect of all deposits to her own account Van der Walt failed to B adhere to the standing instruction that all vouchers reflecting a deposit to a member of staff's account has (sic) to be checked and initialled by the branch manager.

3.6

The procedure described in para 3.4 was carried out by Van der Walt in each case during normal working hours and the cheque and voucher C in respect of this collection was put together with the other cheques and vouchers to be despatched; save that before the operation of the CPB the vouchers were not included in the documents despatched.

3.7

Van der Walt was not authorised to bypass the ordinary procedures as she did (this is not to be construed as a concession by the plaintiff that D her conduct was not in the course or scope of her employment with the defendant).

3.8

Subject to para 3.3–3.7 hereof, the facts set out in para 4.1.1–4.1.4 of the plea (including the subparagraphs thereof at pp 85–7 of the pleadings) are correct in respect of each cheque save that either party E agrees to the specific identity of the entity which was defrauded (para 4.1.4) or from whom the cheque was stolen (para 4.1.4(i)).

3.9

The proceeds of each of the cheque (sic) was paid into the accounts of Thoms, Van der Walt or their children shortly after the date of each cheque, save for the cheque which is the subject-matter of claim I which F was paid to the plaintiff.

3.10

The plaintiff had knowledge of the facts giving rise to its claim before 4 July 1992.

4.

The defendant concedes that the risk in relation to the cheques passed from the Regional Services Council to the plaintiff upon the handing over of each G of the cheques to Mr Thoms on behalf of the plaintiff.'

The further particulars referred to in para 3.2 of the agreed facts reads as follows:

'1.

. . . Mrs Thoms was responsible for the following duties and performed the following functions: H

1.1

She was responsible for the control of the general administrative activities in the branch which included the control, checking and verification of:

1.1.1

the balances appearing on the daily cashier sheets;

1.1.2

the branch "waste", ie the comparison and control of entries I made in the accounts of clients at the branch with the source documents including the comparison of cheques handed in for collection with the deposit vouchers under cover of which they were so deposited; the scrutiny of crossings appearing on such cheques and a verification of the details of the accounts in respect of which such cheques were deposited; J

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1.1.3

the control and checking of all entries passed in respect of A transactions recorded in the particular branch;

1.1.4

the scrutiny of cheques handed in for collection for purposes of detecting possible errors or defects;

1.1.5

the sorting, bundling and packing of cheques handed in for B collection for purposes of despatch.'

Paragraph 4.1.1–4.1.4 referred to in para 3.8 of the agreed facts reads as follows:

'4.1.1

Mr G Thoms was an employee of the town council referred to in para 1.1 above ("Mr Thoms").'

(I interpose to say that the "town council" is the SCC.) C

4.1.2

Mrs H M Thoms was a controller employed by the defendant and married to Mr Thoms ("Mrs Thoms").

4.1.3

Both Mr and Mrs Thoms and their child had current accounts at the Rosettenville branch of the defendant trading as aforesaid. D

4.1.4

Mr and Mrs Thoms, acting in concert, with the intention to defraud the town council referred to in para 1.1 above and/or the payee of the cheque and/or the drawer thereof and/or the defendant and/or the drawer's bank unlawfully devised and executed a scheme whereby: E

(i)

Mr Thoms stole the cheque from the Central Witwatersrand Regional Services Council and/or the town council referred to in para 1.1 and/or payee thereof;

(ii)

Mr and/or Mrs Thoms appended a false or forged endorsement on the reverse side of the cheque; F

(iii)

Mrs Thoms acting unlawfully and without authority, alternatively in abuse of her authority;

(a)...