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

• Jurisdiction: South Africa

Greater Johannesburg Transitional Metropolitan Council v Absa Bank Ltd t/a Volkskas Bank
1997 (2) SA 591 (W)

1997 (2) SA p591

Citation	1997 (2) SA 591 (W)
Case No	93/23437
Court	Witwatersrand Local Division
Judge	Goldstein J
Heard	March 25, 1996; March 26, 1996; March 27, 1996; March 28, 1996; March 29, 1996;
Judgment	July 29, 1996
Counsel	P J Van Blerk (with him SS Cohen) for the plaintiff; T W Beckerling for the defendant

Flynote : Sleutelwoorde H

Bills of exchange — Cheque — Liability of collecting banker — Vicarious liability I of collecting banker for conduct of employee — Employee of payee stealing cheques and handing them to accomplice in employ of collecting (defendant) bank who caused proceeds of cheques to be credited to accounts other than that of payee, and payee thus losing amounts reflected on cheques — Collecting bank held to be vicariously liable for employee's conduct. J

1997 (2) SA p592

Bills of exchange — Cheque — Liability of collecting banker — Liability to true A owner of lost or stolen cheque — Who is true owner — Transfer of ownership of cheque requiring transfer of possession either actual or constructive by transferor to transferee and real agreement between transferor and transferee constituted by intention of latter to receive it. B

Bills of exchange — Cheque — Liability of collecting banker — Liability to true owner of lost or stolen cheques — Collecting banker can be held liable under extended lex Aquilia for intentional wrongdoing by employee to true owner of cheques, provided all elements of Aquilian liability met — Facts to be established in such action set out. C

Delict — Liability for — Vicarious liability — Vicarious liability of employer for delictual acts of employee — Employee of collecting bank (defendant) causing cheques to be credited to other accounts than that of payee, causing it to lose amounts reflected on cheques — Employee of bank engaged in precise work required by employer, namely to check cheques and deposit slips and, having D ensured that they were entitled to be presented on behalf of depositors, sorting and bundling them for despatch purposes to clearing bureau so that debits may be raised against account of drawer at its bank and credit raised in favour of collecting bank — From time to time while attending to that function employee inserting one of stolen cheques, thereby achieving own objective — Employee doing crucial acts in performance of her actual duties and defendant bank thus vicariously liable. E

Negligence — Action for damages — Damages — Apportionment of — Apportionment in terms of s 1(1)(a) of Apportionment of Damages Act 34 of 1956 — Section 1(1)(a) can be invoked against plaintiff vicariously liable for act of servant other than pursuant to s 1(3) of Act. F

Negligence — Action for damages — Damages — Apportionment of — Apportionment in terms of s 1(1)(a) of Apportionment of Damages Act 34 of 1956 — Where dolus on side of both plaintiff and defendant, no reason not to give ordinary meaning to word 'fault', ie to include dolus — Despite reference to word 'negligence' in title of Act in headings of chap 1 and s 1 and in content of G s 1(3), Court's interpretation leading to no absurdity, hardship or anomaly and plain meaning of Act thus having to be adopted — Where dolus of defendant could not have been said to be greater than that of plaintiff, plaintiff would at common law have been non-suited — Plaintiff would have been non-suited in absence of s 1(1)(a) of Act — Section applying in present case, and plaintiff's claim apportioned. H

Prescription — Extinctive prescription — Interruption of — By service on debtor of process whereby creditor claims payment of debt — Prescription Act 68 of 1969, s 15(1) — Alternative claim prescribed unless main claim interrupting prescription in terms of s 15(1) of Act — If alternative claim not introducing new I cause of action, alternative claim not prescribed — On comparison of two claims, seeming that alternative claim doing nothing more than fleshing out main claim, and alternative claim thus not prescribed.

Statute — Interpretation of — Apportionment of Damages Act 34 of 1956, s 1(1)(a) — Courts having always applied s 1(1)(a) of Act against J

1997 (2) SA p593

vicariously liable plaintiff — Such interpretation according with rule that statute A not to be understood to vary common law unless plainly doing so, and s 1(1)(a) not doing so.

Statute — Interpretation of — Chapter headings — If intention of Legislature quite clear, cannot be overriden by words of headings and ordinary meaning of words to be given effect to. B

Headnote : Kopnota

A certain T, who was employed by the Soweto City Council ('the SCC'), a body which was later dissolved and the assets and liabilities of which were transferred to the plaintiff, had stolen eight cheques drawn by the Central Witwatersrand Regional Services Council ('the RSC') in favour of the SCC, and handed them to his C accomplice, W, who was in the employ of the defendant bank at its Rosettenville branch and who had caused the proceeds of the cheques to be credited to accounts other than that of the SCC causing the SCC to lose the amounts reflected on each of the cheques. The plaintiff had then sued the defendant for these amounts. There was a main claim and an alternative claim in respect of each amount, each for the same relief, numbered A to H. The parties were agreed that the Court determine only the D alternative claims, and as the facts in each of the alternative claims were substantially the same, that the Court decide only alternative claim A. The summons containing main claim A was served on 31 August 1993, and the alternative claim A was introduced by an amendment dated 15 February 1995.

Held, as to whether the defendant was vicariously liable for W's conduct, that W had E been engaged in the precise work that her employer required her to carry out, namely to check the cheques and deposit slips presented to her employer, and, having been satisfied that they were entitled to be presented on behalf of the depositors, to sort and bundle them for despatch purposes to the Automated Clearing Bureau in order that F debits might be raised against the account of the drawer at its bank and a credit raised in favour of the defendant. From time to time while attending to that function she had inserted one of the cheques that had been stolen by T, thereby achieving her own objective. She had pursued that objective further by performing precisely the functions for which she was employed, obviously in an improper fashion. These facts established G vicarious liability of the defendant on any of the tests. W did crucial acts in performance of her actual duties and the defendant was thus vicariously liable. (At 600D–I.)

Held, further, as to whether the SCC had suffered the loss reflected in the amounts of the cheques involved, that it appeared from the evidence that the cheques represented a grant of money by the RSC to the SCC, and accordingly, if ownership in the cheques had passed to the SCC, the latter had suffered a loss in the amount of the H cheques because the proceeds of the cheque did not reach it. The transfer of ownership of a cheque required transfer of possession, either actual or constructive, by the transferor to the transferee, and a real agreement between the transferor and the transferee constituted by the intention of the latter to receive it. In terms of s 19(4) of the Bills of Exchange Act 34 of 1964, if a bill was no longer in the possession of a I party who had signed it as drawer, a valid and unconditional delivery by him was presumed until the contrary was proved. The cheque in casu was no longer in the possession of the RSC which had drawn it. T had not given evidence, and it was possible that the intention to steal the cheques had arisen only after he had accepted delivery of it on behalf of the SCC. It accordingly did not matter whether he was merely a messenger or an agent to accept delivery. The presumption operated to establish the fact J

1997 (2) SA p594

that the cheque was properly delivered to the payee, the SCC. It followed that the A SCC had suffered the loss reflected in the amount of the cheques. (At 600J–601G.)

Held, further, as to whether the alternative claim A had become prescribed, that it would have become prescribed before its introduction on 15 February 1995 unless the B main claim A had interrupted prescription in terms of s 15(1) of the Prescription Act 68 of 1969. In terms of the statute the Court had to determine whether main claim A sought to enforce the same debt as alternative claim A, which involved a comparison between the pleadings which formed the basis of each of the claims. In deciding whether the two sets of pleadings related to the same debt the Court had to decide C whether the second introduced a new, different cause of action. Main claim A was brought under the extended lex Aquilia which held the collecting banker liable for negligence to the true owner provided all the elements or requirements of Aquilian liability had been met: in other words if the true owner could establish that the collecting banker had received payment of the cheque on behalf of someone who was D not entitled thereto, that in receiving such payment the collecting banker had acted negligently and unlawfully, that the conduct of the collecting banker had caused the true owner to sustain loss, and that the damages claimed represented proper compensation for such loss. Alternative claim A seemed to do nothing more than flesh out the main claim, and it followed that the main claim A had not become prescribed. (At 601H–J, 604E–I, 604I/J and 605B/C.) E

Held, further, as to whether the defendant was entitled to a reduction of the amount claimed in...