Da Costa de Atouguia v Braz (592/1987) [1989] ZASCA 5; [1989] 2 All SA 262 (A) (9 March 1989)

Da Costa de Atouguia v Braz (592/1987) [1989] ZASCA 5; [1989] 2 All SA 262 (A) (9 March 1989)

The court held that the appellant did not allege or prove that the cheques were completed at variance with the underlying agreement. The respondent completed the cheques in accordance with the parties' arrangement, inserting the agreed amounts and dates. There was no express or implied term requiring the respondent to wait until each instalment fell due before completing the cheques. The defence raised by the appellant was that no further cheques should be presented once the indebtedness was extinguished, but this was a condition outside the instruments themselves. The onus was on the appellant to prove that the presentment of the cheques was at variance with the agreement, which he...

Citation
[1989] ZASCA 5
Parties
Appellant: Manuel Da Costa de Atouguia; Respondent: Eduardo Fernandes Braz
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
9 March 1989
Case Number
592/1987
Procedural Posture
Civil Appeal / Appeal From Provisional Sentence Proceedings
Outcome
Appeal dismissed with costs.
Judges
Van Heerden, E.M. Grosskopf, Nestadt, Vivier, Nicholas
Legal Topics
Bills of Exchange, Onus of Proof, Completion of Inchoate Instruments, Acknowledgment of Debt
Civil Procedure Banking and Finance Bills of Exchange Onus of Proof Completion of Inchoate Instruments Acknowledgment of Debt

Case Brief

Summary, issues, holding and outcome

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Parties

Manuel Da Costa de Atouguia

Appellant

Eduardo Fernandes Braz

Respondent

Procedural Posture

Civil Appeal / Appeal From Provisional Sentence Proceedings

Legal Issues

  1. 1 Whether the cheques were completed in accordance with the true underlying agreement between the parties.
  2. 2 Who bears the onus of proof regarding the completion of the cheques.
  3. 3 Whether the defendant discharged the onus to show the cheques were presented at variance with the agreement.

Ratio Decidendi

The court held that the appellant did not allege or prove that the cheques were completed at variance with the underlying agreement. The respondent completed the cheques in accordance with the parties' arrangement, inserting the agreed amounts and dates. There was no express or implied term requiring the respondent to wait until each instalment fell due before completing the cheques. The defence raised by the appellant was that no further cheques should be presented once the indebtedness was extinguished, but this was a condition outside the instruments themselves. The onus was on the appellant to prove that the presentment of the cheques was at variance with the agreement, which he...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.