Standard Bank of SA Ltd v Absa Bank Ltd and Another

• Judge: Moseneke AJ
• Judgment Date: 30 September 1994
• Docket Number: 11564/93
• Hearing Date: 30 September 1994
• Court: Transvaal Provincial Division

Moseneke AJ:

This is an action in which the plaintiff claims on the basis of a condictio sine causa payment from the first defendant in the amount of R85 850,91. I

The facts in this case are common cause. Plaintiff closed his case without tendering any viva voce evidence. On the other hand, the defendant led the evidence of Mr Theron, the credit control manager of the Pretoria branch of Volkskas Bank Ltd, whose evidence was singularly unhelpful in resolving any of the substantial issues for adjudication of J this matter.

Moseneke AJ

A At the outset the plaintiff formally pronounced that its case against the first defendant is founded upon the condictio sine causa and that, although pleaded, the plaintiff disavowed any reliance upon the condictio indebiti.

The facts which are common cause are the following:

1.

Both the plaintiff and first defendant are duly incorporated B companies and banks, as well as deposit-taking institutions in terms of the Deposit-taking Institutions Act 94 of 1990, each with its registered offices in Johannesburg.

2.

The registration of Volkskas Bank Ltd (hereinafter referred to as 'Volkskas') as a deposit-taking institution was terminated on 30 September 1991. The first defendant is the lawful successor-in-title C to Volkskas.

3. 3.1

The second defendant is J F Horn, an adult male whose last known address was in Pretoria and whose present whereabouts are to the parties unknown. Whilst the second defendant has been D cited, he is not a party to these proceedings inasmuch as attempts to effect service of summons upon him were seemingly unsuccessful.

3.2

At all times relevant hereto the second defendant was a customer of the first defendant and as such held a current banking account at the Pretoria branch of Volkskas under E account number 00 00 - 141 - 356.

3.3

As at 24 October 1991 the said account kept by the second defendant with Volkskas was overdrawn to the extent of the sum of R81 843,91.

4.

During October 1991 Unitrans Bulk (Pty) Ltd ('Unitrans') was a F customer of the plaintiff and as such was the holder of a current banking account at the plaintiff's Steeledale branch in Johannesburg under account number 200201198.

5.

On 23 October 1991 a cheque in the sum of R150 000 made payable to the second defendant was drawn upon the account of Unitrans at the plaintiff's Steeledale branch. G

6.

On 24 October 1991 the said cheque was deposited into the second defendant's account at the Pretoria branch of Volkskas for collection.

7.

The said cheque was thereafter presented by Volkskas to the H plaintiff's Steeledale branch for payment and payment of the sum of R150 000 was effected by the plaintiff to Volkskas for the credit of the second defendant's account.

8.

Upon effecting payment to Volkskas the plaintiff debited the banking account of Unitrans with the sum of R150 000.

9. 9.1

The cheque in question had been stolen from Unitrans.

9.2

I P F Vermeulen and M F Pretorius were the authorised signatories of cheques issued by Unitrans in terms of the mandate and specimen signatures provided by Unitrans to the plaintiff.

9.3

The signatures of the said Vermeulen and Pretorius on the third J cheque had been forged.

Moseneke AJ

9.4

A When paying the forged cheque the plaintiff believed that the signatures thereon were genuine signatures of Vermeulen and Pretorius.

10.

When it made the said payment of R150 000 the plaintiff did so in the bona fide belief that the signatures on the cheque were true and authorised signatures and that it was accordingly obliged to pay the B cheque.

11.

By virtue of the fact that the signatures were forged the plaintiff in fact had no mandate to effect payment and to debit the account of Unitrans and the plaintiff was accordingly obliged to credit the account of Unitrans with the sum of R150 000, which the plaintiff in C fact did on 27 November 1991.

12. 12.1

The plaintiff has recovered the sum of R64 149,09 from the first defendant, being the credit balance on the second defendant's banking account as at 3 December 1991.

12.2

The aforesaid amount recovered by the plaintiff from the first defendant was on account of an interim order of this Division D made by Joffe J on 3 December 1991 and confirmed on 14 January 1992, directing the second defendant to pay to the plaintiff the sum of R150 000; alternatively that the first defendant shall not pay or release to the second defendant or any other person or entity the sum of R150 000 or such other lesser sum E standing to the credit of the second defendant's banking account at the first defendant's Pretoria branch.

12.3

The first defendant did not oppose the granting of the order aforesaid and in fact paid the amount standing to the credit of the second defendant's account at its Pretoria branch to the deputy sheriff, who in turn paid the same to the plaintiff. F

13. 13.1

The second defendant's overdraft facility with the first defendant was terminated and called up for repayment on 23 September 1991.

13.2

On 23 October 1991 the debit balance of the banking account of the second defendant was R81 843,94.

13.3

G The second defendant ceased operating his banking account with the first defendant on 10 March 1992.

14.

On 1 November 1991 the internal audit division of the plaintiff notified the Pretoria branch of Volkskas by facsimile that the relevant cheque of R150 000 'bears forged signatures'.

15.

H There is no evidence that the second defendant was guilty of any improper conduct with regard to the cheque, nor is there any suggestion that the first defendant conspired with any wrongdoer or had knowledge of anything improper at the time of the receipt of the payment.

16.

The first defendant declined to pay to the plaintiff the difference I between the amount recovered from the first defendant, being the sum of R64 149,09, on the one hand, and R150 000 on the other, and upon various grounds advanced in the correspondence between the parties.

At the commencement of the trial a bundle of documents was handed up by J agreement between the parties. The contents of several of these

Moseneke AJ

A documents were proven through the evidence of Mr Theron. None of the documents has been challenged as inaccurate or inadmissible upon any ground whatsoever. In any event, the contents of the documents in the bundle have been by and large reduced to admissions reflected by the summary of facts aforegoing.

B Mr Joubert, who appeared for the plaintiff, commenced his argument by drawing attention to the fact that the stolen cheque is a nullity. He argued that the forged cheque is not a bill of exchange as it was not 'signed by the person giving it', as required by s 2 of the Bills of Exchange Act 34 of 1964 and that in any event the forged cheque is wholly inoperative as 'no right to retain the bill, or to give a discharge C therefor, or to enforce payment thereof against any party thereto can be acquired through or under' the forged or unauthorised signatures (see s 22(1) of Act 34 of 1964).

Mr Joubert further submitted that inasmuch as the cheque is a nullity any payment pursuant thereto to the first defendant was sine causa. Neither the first defendant...