FJS Painting CC v ABSA Bank Ltd (83/03) [2004] ZASCA 52 (28 May 2004)

FJS Painting CC v ABSA Bank Ltd (83/03) [2004] ZASCA 52 (28 May 2004)

The appellant failed to establish on a balance of probabilities that it acquired ownership of the four cheques in question. The evidence showed that Ms Craythorne, who received and deposited the cheques, did not act as an agent or messenger for the appellant but rather for herself, with the intention of acquiring the cheques for her own benefit. The appellant, lacking a controlling mind after the death of its sole member and before the appointment of an executor, could not form the necessary intention to acquire ownership. Section 19(4) of the Bills of Exchange Act does not create a presumption of ownership, only of possession. Without ownership, the appellant's claim in delict and...

Citation
[2004] ZASCA 52
Parties
Appellant: FJS Painting CC; Respondent: ABSA Bank Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 May 2004
Case Number
83/03
Procedural Posture
Civil Appeal / Appeal From Pretoria High Court
Outcome
Appeal dismissed with costs.
Judges
Harms, Scott, Nugent, Cloete, Heher
Legal Topics
Collecting Bank Liability, Ownership of Cheque, Negligence, Lex Aquilia, Bills of Exchange Act, Pure Economic Loss
Delict Banking and Finance Civil Procedure Collecting Bank Liability Ownership of Cheque Negligence Lex Aquilia Bills of Exchange Act +1 more

Case Brief

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Parties

FJS Painting CC

Appellant

ABSA Bank Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Pretoria High Court

Legal Issues

  1. 1 Whether the appellant acquired ownership of the four cheques deposited by Ms Craythorne.
  2. 2 Whether the bank was liable in delict or contract for collecting cheques for an account not belonging to the appellant.
  3. 3 Whether the legal duty of a collecting banker extends to a named payee who is not the owner of the cheque.

Ratio Decidendi

The appellant failed to establish on a balance of probabilities that it acquired ownership of the four cheques in question. The evidence showed that Ms Craythorne, who received and deposited the cheques, did not act as an agent or messenger for the appellant but rather for herself, with the intention of acquiring the cheques for her own benefit. The appellant, lacking a controlling mind after the death of its sole member and before the appointment of an executor, could not form the necessary intention to acquire ownership. Section 19(4) of the Bills of Exchange Act does not create a presumption of ownership, only of possession. Without ownership, the appellant's claim in delict and...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.