Basil Read Sun Homes (Pty) Ltd v Nedperm Bank Ltd. (86/97) [1998] ZASCA 97; 1999 (1) SA 831 (SCA); [1999] 1 All SA 285 (A) (20 November 1998)

Basil Read Sun Homes (Pty) Ltd v Nedperm Bank Ltd. (86/97) [1998] ZASCA 97; 1999 (1) SA 831 (SCA); [1999] 1 All SA 285 (A) (20 November 1998)

The Supreme Court of Appeal held that the probabilities supported the inference that the UBS intended to transfer ownership of the cheques to the appellant, not to the CC. Since the appellant had not authorised the collection of the cheques by the CC or its employee, ownership did not pass to the CC, and the UBS remained the true owner. The CC obtained possession by false pretences and appropriated the cheques for its own purposes, amounting to theft. Therefore, the cheques were stolen within the meaning of section 81(1) of the Bills of Exchange Act. The appellant, as cessionary of the UBS's claim, was entitled to judgment against the respondent for the amount lost. The appeal succeeded,...

Citation
[1998] ZASCA 97
Parties
Appellant: Basil Read Sun Homes (Pty) Ltd; Respondent: Nedperm Bank Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
20 November 1998
Case Number
86/97
Procedural Posture
Civil Appeal / Appeal From Full Court of Witwatersrand Local Division
Outcome
Appeal upheld. Judgment granted in favour of the appellant on claim D.
Judges
Van Heerden, Vivier, Harms, Scott, Farlam
Legal Topics
Bills of Exchange Act, Cheque Theft, Cession of Claims, Ownership of Instruments
Banking and Finance Civil Procedure Bills of Exchange Act Cheque Theft Cession of Claims Ownership of Instruments

Case Brief

Summary, issues, holding and outcome

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Parties

Basil Read Sun Homes (Pty) Ltd

Appellant

Nedperm Bank Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Court of Witwatersrand Local Division

Legal Issues

  1. 1 Whether the 12 cheques were stolen within the meaning of section 81(1) of the Bills of Exchange Act.
  2. 2 Whether ownership of the cheques passed to the CC or remained with the UBS.
  3. 3 Whether the appellant was entitled to judgment against the respondent under section 81(1) of the Act.

Ratio Decidendi

The Supreme Court of Appeal held that the probabilities supported the inference that the UBS intended to transfer ownership of the cheques to the appellant, not to the CC. Since the appellant had not authorised the collection of the cheques by the CC or its employee, ownership did not pass to the CC, and the UBS remained the true owner. The CC obtained possession by false pretences and appropriated the cheques for its own purposes, amounting to theft. Therefore, the cheques were stolen within the meaning of section 81(1) of the Bills of Exchange Act. The appellant, as cessionary of the UBS's claim, was entitled to judgment against the respondent for the amount lost. The appeal succeeded,...

Court Disposition

Appeal upheld. Judgment granted in favour of the appellant on claim D.

Orders

  • The appeal succeeds with costs, including the costs of two counsel, except for costs relating to specified unnecessary portions of the appeal record.
  • The order of the court a quo is set aside and substituted as follows: (a) The appeal is upheld with costs. (b) On claim D, judgment with costs, including the costs of two counsel, is granted against the fourth defendant in the amount of R292,496.31, bearing interest at 12% per annum from the date of service of the...