Navidas (Pty) Ltd v Essop

• Jurisdiction: South Africa
• Judge: Combrinck J
• Judgment Date: 24 April 1992
• Citation: 1992 (3) SA 797 (D)
• Hearing Date: 16 February 1992
• Court: Durban and Coast Local Division

Combrinck J:

The plaintiff in this matter sued the defendant by way of F provisional sentence for an amount of R22 730. The claim is based on a cheque of which the plaintiff alleges he is the holder in due course, alternatively the holder. The cause of action was pleaded thus:

'(a)

The plaintiff is the holder in due course, alternatively the holder for value, alternatively the holder of a certain cheque

(i)

drawn by the defendant;

(ii)

G on the Westville Mall, Durban Branch;

(iii)

in favour of Contempo CC

(iv)

for the said sum of R22 730;

(v)

dated 5 November 1991.

(b)

The cheque was negotiated by a certain Contempo CC to the H plaintiff who took it

(i)

in good faith; and

(ii)

for value; and

(iii)

without notice that it was overdue or had been dishonoured or of any defence against or claim to it on the part of any person.

(c)

The said cheque was duly presented for payment at the Westville I Mall, Durban Branch, and was dishonoured by non-payment, payment thereof having been countermanded or "payment stopped".

(d)

Notice of dishonour has been dispensed with by law in terms of the provisions of s 48(2) of the Bills of Exchange Act 34 of 1964 in J that the drawee bank was not obliged, as between itself and the

Combrinck J

A defendant, to effect payment of the said cheque.

A copy of both sides of the said cheque is annexure "A" attached hereto.'

The defendant opposed the matter and in his opposing affidavit took the point that the cheque had not been properly presented as required by s B 43(2)(c) of the Bills of Exchange Act 34 of 1964. The defence was couched in the following terms:

'10.

I deny that the instrument was presented to the branch of the drawee bank as is required by s 43(2)(c) of the Act, in the sense it was produced to an official of that branch and payment requested according to its tenor.

11.

C What has obviously happened is that there has been a truncated form of presentment in that the cheque processing procedure, where cheques deposited for collection are sent via the clearing agency to a central processing office of the particular bank. This office is linked by computer technology to the various branches on which D cheques are drawn.

12.

Whether sufficient funds are available to meet the cheque, or whether payment has been countermanded, are matters that can be discovered at the processing office through this...