Klopper v Volkskas Bpk

• Jurisdiction: South Africa
• Citation: 1964 (2) SA 421 (T)

Klopper v Volkskas Bpk
1964 (2) SA 421 (T)

1964 (2) SA p421

Citation	1964 (2) SA 421 (T)
Court	Transvaal Provincial Division
Judge	Viljoen J
Heard	September 17, 1963; September 18, 1963
Judgment	March 3, 1964

Flynote : Sleutelwoorde A

Banker — Cheques — Dishonour of when funds available — Damages — Scope of — Not limited to patrimonial loss — Injuria damages claimable.

Headnote : Kopnota

In an action for damages for breach of contract, alternatively the B Aquilian action, in which the plaintiff, who carried on business as trustee of insolvent estates and liquidator of companies, claimed damages from the respondent Bank for dishonouring cheques drawn on an estate account, which he was administering, when the account had funds sufficient and available to meet them, the defendant objected to the leading of certain evidence in proof of damages for an alleged injuria, i.e. for the impairment of the plaintiff customer's personal dignity and C reputation, as distinct from the actual patrimonial loss suffered to his business credit.

Held, that the objection should be overruled.

The principle and proper legal basis on which damages for the injury to the 'trader-customer's credit' have been awarded, and the decisions which the Court felt obliged to follow in the above decision, discussed.

Quaere: Whether our law has not clear principles relating to the action for breach of contract, the Aquilian action and the actio injuriarum and D whether it is not unnecessary to have recourse to an action sui generis or to attach certain elements of one action as a parasite to another action?

Case Information

Objection to certain evidence proposed to be led by a plaintiff during the course of a trial action. The nature of the evidence appears from the reasons for judgment.

E A. S. Botha (with him D. J. H. le Roux), for the defendant: As algemene beginsel, waar 'n eis vir skadevergoeding gebaseer is op kontrakbreuk of nalatigheid onder die lex Aquilia (soos hier die geval is), is gekweste gevoelens, verleentheid, belediging of ergernis wat aan die eiser veroorsaak is nie ter sake nie: Jockie v Meyer, 1945 AD 354 F op bl. 364 - 8; Waring & Gillow v Sherborne, 1904 T.S. 340 op bl. 348. So ook nie motief aan die kant van die verweerder nie, Addis v Gramophone Co. Ltd., 1909 A.C. 488 op bl. 495 - 6. Slegs werklike damnum kan in hierdie aksies verhaal word. Edwards v Hyde, 1903 T.S. 381 op bl. 385; Steenkamp v Juriaanse, 1907 T.S. 980. Die geval van wederregtelike ontering van tjeks word soms as 'n uitsondering op die G algemene reël genoem, vgl. die sake van Addis en Jockie, supra, en Wessels, para. 3536. Maar 'n ontleding van die sake toon aan dat dit net 'n uitsonderingsgeval is insoverre as damnum nie bewys hoef te word nie omdat beskadiging van krediet deur die ontering van 'n tjek vermoed word. Dit laat nog nie getuienis in van gevoelens, belediging of motief H nie; Barclays Bank v Giles, 1931 T.P.D. 31; Witbank District Coal Agency v Barclays Bank, 1928 T.P.D. 18 op bl. 23; Wilson v United Counties Bank Ltd., 1920 A.C. 102 op bl. 132 - 4; Groom v Crocker, (1939) 1 K.B. 194; Grant's Law of Banking op bl. 88; Gibbons v Westminster Bank Ltd., (1939) 2 K.B. 882; Cowen Law of Negotiable Instruments, bl. 351. Die beginsels van die actio injuriarum kan nie toegepas word in 'n aksie wat slegs ingeklee is as 'n aksie gebaseer op kontrakbreuk of nalatigheid nie, Kock v Zeeman, 1943 OPD 135;

1964 (2) SA p422

Jockie se saak, supra; Guggenheim v Rosenbaum, 1961 (4) SA 21; 1931 S.A.L.J. 200.

L. Lawrence for the plaintiff.

Cur adv vult.

A Postea (March 3rd).

Judgment

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...