Klopper v Volkskas Bpk

• Judge: Viljoen J
• Judgment Date: 03 March 1964
• Citation: 1964 (2) SA 421 (T)

Viljoen, J.:

The defendant has objected to certain evidence proposed to be led by the plaintiff. The defendant bank dishonoured a number of the plaintiff's cheques while the plaintiff, its customer, had sufficient B funds in his banking account to meet those cheques. The plaintiff now claims damages in an action for breach of contract, alternatively, in the actio Legis Aquilae.

The plaintiff alleges in his declaration that he is carrying on business as trustee of insolvent estates and liquidator of companies and in C particular that he was the liquidator of the estate of one Johannes Jacobus Oosthuizen in accordance with the provisions of sec. 15 of the Farmers' Assistance Act, 48 of 1935. Consequent upon his appointment as liquidator he duly opened a current banking account in the name of the said estate with the defendant. Paras. 5 to 11 of the declaration are couched in the following terms:

'5.

D It was an implied term of the contract between the plaintiff and the defendant that the defendant would honour cheques properly drawn upon the said account if there were sufficient available funds to the credit of the said account to meet the said cheques on their being presented for payment.

6.

In breach of its obligation aforesaid defendant dishonoured four cheques properly drawn by the plaintiff upon the said account E particulars of which are as follows:

Date drawn	Name of payee	Amount
20th June, 1961	Basson & Son (Pty.) Ltd.	R22.55
20th June, 1961	Steyn's Garage	R637.16
20th June, 1961	Verster's Garage (Edms.) Bpk.	R28.07
20th June, 1961	Lichtenburg Timber Company	R83.77

7.

The said cheques were dishonoured upon being presented for payment despite the fact that there were funds sufficient and available to F meet them in the said account at the time of presentment thereof.

8.

In the premises the defendant was in breach of its contract with the plaintiff who has suffered damage as a result of the said breach in the amount of R50,000.

9.

Alternatively to paras. 6, 7 and 8 herein the defendant owed a duty of care to the plaintiff not to dishonour the cheques mentioned in para. 6 herein if the said account had funds sufficient and available to meet them.

10.

The defendant did dishonour the said cheques despite the fact G that the said account had funds sufficient and available to meet the said cheques. The said dishonour was due to the negligence of a servant or servants of the defendant whose name or names are to the plaintiff unknown, his or their negligence consisting of a failure to take reasonable or any steps to ascertain whether an account existed in the name of the estate of J. J. Oosthuizen.

11.

As a result of the said negligence the plaintiff has suffered H damage in the sum of R50,000.

Wherefore the plaintiff claims:

1. Damages in the amount of R50,000;

2. Costs;

3. Further or other relief.'

There was the following request for further particulars:

'Eiser word versoek om te sê of hy enige werklike skade gely het as 'n direkte gevolg van verweerder se beweerde optrede, en indien wel, word volledige besonde hede van sodanige skade verlang.'

In reply to this request the plaintiff stated:

Viljoen J

'The plaintiff is not claiming any special damages, but relying solely upon general damages.'

When the matter came before me on trial, Mr. Lawrence, for the plaintiff, in his opening address outlined the case and intimated that he proposed leading evidence of the indignity and humiliation suffered by the plaintiff and that he was going to ask the Court to award A substantial damages for contumelia.

Before evidence was led Mr. Botha, for the defendant, made his attitude clear. He stated that he did not know what evidence would be adduced but that he could anticipate what that evidence would be and that if any B evidence were adduced which would form the basis for injuria damages he would object to such evidence.

The plaintiff went into the witness-box and testified about the dishonouring of cer ain of his cheques. From this evidence it appeared that one of the estate creditors reported the matter to the police when C a cheque made payable in his favour by...