Trust Bank of Africa Ltd v Marques

• Jurisdiction: South Africa
• Citation: 1968 (2) SA 796 (T)

Trust Bank of Africa Ltd v Marques
1968 (2) SA 796 (T)

1968 (2) SA p796

Citation	1968 (2) SA 796 (T)
Court	Transvaal Provincial Division
Judge	Ludorf J and Nicholas J
Heard	March 23, 1968
Judgment	April 11, 1968

Flynote : Sleutelwoorde

Banker — Dishonouring of customer's cheque — Funds available to H meet them — Claim for damages — When awarded — What must be alleged and proved — Negligence — Action against banker — Dishonouring of a cheque when funds available — When customer entitled to damages — Proof of — Failure of.

Headnote : Kopnota

It is not in every case that a customer of a bank whose cheque has been dishonoured is entitled to recover damages for injury to his credit. He is only so entitled when he is a businessman or trader. Such damages are 'special damages' and should be stated with particularity in the pleadings and proved.

1968 (2) SA p797

The respondent had successfully sued the appellant in a magistrate's court for damages suffered as the result of the appellant dishonouring certain cheques at a time when there were sufficient funds available to meet them. There were no allegations in the summons that the respondent was carrying on a business as a butcher or that the appellant knew that he was so carrying on a business. In an appeal,

Held, that the respondent was only entitled to special damages.

A Held, further, as there was no proof of such damages, that the appeal succeeded.

Case Information

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.

A. Mostert, for the appellant.

N. Kades, for the respondent.

B Cur. adv. vult.

Postea (April 11th).

Judgment

Nicholas, J.:

The present respondent (who was the plaintiff in the court C below, and will be referred to as such in this judgment) claimed payment of R1,000 damages in an action instituted in the Magistrate's Court at Johannesburg, from the present appellant (which I shall refer to as the defendant).

In his particulars of claim annexed to the summons, the plaintiff made the following allegations:

'(1)

At all material times herein the plaintiff was a customer of the D defendant's Bank and he had an account with the branch situate at corner Eloff and Bree Streets, Johannesburg.

(2)

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

(3)

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

Date drawn	Name of payee	Amount
7th June, 1966.	United Auctioneering Co.	R50
7th June, 1966.	H. L. Shippel & Co. (Pty.)	R150
7th June, 1966.	Cyril Wides, E. Chain & Co.	R31
	Henry Tucker	R30
11th June, 1966.	Industrial Fresh Meat Supply	R94
8th June, 1966.	Premier Cold Storage	R54.65

(4)

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

(5)

In the premises the defendant was in breach of its contract with the plaintiff who has suffered damages as a result of the said G breach in an amount of R1,000.

(6)

Alternatively to paras. 3, 4 and 5 above:

(a)

The defendant had a duty of care to the plaintiff not to dishonour the cheques mentioned in para. 3 hereof if the said account had funds fufficient and available to meet them.

(b)

The defendant did dishonour the said cheques despite the fact that H the said account had funds sufficient and available to meet them. 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...