Wypkema v Lubbe (138/06) [2007] ZASCA 36; [2007] 4 All SA 1224 (SCA); 2007 (5) SA 138 (SCA) (28 March 2007)

Wypkema v Lubbe (138/06) [2007] ZASCA 36; [2007] 4 All SA 1224 (SCA); 2007 (5) SA 138 (SCA) (28 March 2007)

The Supreme Court of Appeal held that when an attorney draws a cheque on his trust account, he does so as principal and not in a representative capacity. The respondent's signature on the cheque was unqualified and did not indicate agency for Rooihak, rendering him personally liable for the dishonoured cheque. The court found no evidence of a suspensive condition in the underlying agreement, as the only restriction was that the cheque not be presented before 29 September 2004. The court further determined that, on the facts, there was insufficient evidence to conclude that the agreement was unlawful or contra bonos mores, as there was no indication that the parties intended to perform the...

Citation
[2007] ZASCA 36
Parties
Appellant: Frederick Willem Wypkema; Respondent: Tobias Johannes Lubbe
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 March 2007
Case Number
138/06
Procedural Posture
Civil Appeal / Appeal From Provisional Sentence Refusal
Outcome
Appeal upheld; order of the court a quo set aside and replaced with an order for provisional sentence in favour of the appellant.
Judges
Harms, Brand, Lewis, Snyders, Theron
Legal Topics
Attorneys Trust Accounts, Provisional Sentence, Bills of Exchange Act, Personal Liability of Drawer
Civil Procedure Commercial and Corporate Attorneys Trust Accounts Provisional Sentence Bills of Exchange Act Personal Liability of Drawer

Case Brief

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Parties

Frederick Willem Wypkema

Appellant

Tobias Johannes Lubbe

Respondent

Procedural Posture

Civil Appeal / Appeal From Provisional Sentence Refusal

Legal Issues

  1. 1 Whether an attorney who draws a cheque on his trust account acts as principal or in a representative capacity.
  2. 2 Whether the respondent is personally liable for the dishonoured trust account cheque.
  3. 3 Whether the agreement to accept a trust cheque as security for repayment of a loan was unlawful or contra bonos mores.

Ratio Decidendi

The Supreme Court of Appeal held that when an attorney draws a cheque on his trust account, he does so as principal and not in a representative capacity. The respondent's signature on the cheque was unqualified and did not indicate agency for Rooihak, rendering him personally liable for the dishonoured cheque. The court found no evidence of a suspensive condition in the underlying agreement, as the only restriction was that the cheque not be presented before 29 September 2004. The court further determined that, on the facts, there was insufficient evidence to conclude that the agreement was unlawful or contra bonos mores, as there was no indication that the parties intended to perform the...

Court Disposition

Appeal upheld; order of the court a quo set aside and replaced with an order for provisional sentence in favour of the appellant.

Orders

  • Payment of the amount of R2 200 000.
  • Interest on the amount of R2 200 000 at the rate of 15.5% per annum from 1 October 2004 until date of final payment.