Proposed Amendments to the Bills of Exchange Act 34 of 1964

• Jurisdiction: South Africa
• Pages: 152-166
• Citation: (1999) 11 SA Merc LJ 152
• Date: 25 May 2019
• Author: Ntsietso Mofokeng
• Published date: 25 May 2019

Proposed Amendments to the

Bills of Exchange Act 34 of 1964

NTSIETSO MOFOKENG & JT PRETORIUS

University of South Africa

1 Introduction

It has, for some time, been clear that the Bills of Exchange Act 34 of

1964 ('the Act') may be in need of some revision (see, e g, DV Cowen

'Bookreview' 1982

Acta Juridica

117; FR Malan 'Moontlike Hervorming

van die Wisselreg' 1991

Tydskrif vir die Suid-Afrikaanse Reg

201).

Proposals for the repeal of the Act and the introduction of two separate

laws, the one dealing with bills and promissory notes and the other with

cheques, were made in FR Malan, AN Oelofse &

JT

Pretorius

Proposal

for the Reform of the Bills of Exchange Act, 1964

(1988; also published as

Working Paper 22

of the South African Law Commission (1988)). These

proposals introduced new concepts and were a major departure from the

existing Bills of Exchange Act. As a result and because of what was felt as

a pressing need for 'urgent' reform of the law, amendments to the Act

have now been proposed (the proposed amendments are published in

General Notice 1427 in

Government Gazette

19075 of 21 July 1998 ('the

Amendment Bill')). Clause 2 of the Amendment Bill sets out the objective

of the amendments as being:

(i)

to simplify and clarify certain provisions and concepts;

(ii)

to provide consumer protection;

(iii)

to cater for technological advancements;

(iv)

to address collecting bank's liability; and

(v)

to reduce the incidence of fraud.

Cowen has described the Act as an 'integrated and technical piece of

legislation' (DV Cowen 'The Liability of a Bank in the Computer Age in

Respect of a Stolen Cheque' 1981

Tydskrif vir die Suid-Afrikaanse Reg

193 at 199). The author warned, however, against the dangers of ad hoc

amendments to the Act that may result in 'piecemeal, and possibly one-

sided tinkering' with this piece of legislation (idem) and has further

remarked that the revision or amendment of the Act 'calls for a careful

balancing of interests — manifestly, but not by any means exclusively, in

regard to the sections directly affecting banks' (see Denis V Cowen &

Leonard Gering

The Law of Negotiable Instruments in South Africa

I

(1985) 5 ed ('Cowen & Gering') at 141). The amendment of the Act also

'calls for business sense and an understanding of what is economically

sound' (idem). The revision of the Act is, perhaps, long overdue.

However, it is regrettable that the proposed amendments do not seem

to reflect these cautionary remarks. The present ad hoc and piecemeal

152

(1999) 11 SA Merc LJ 152

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