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11 Nov 2004

Banking And Finance [2004] ZAFSHC 102

Absa Bank Limited v van der Westhuizen and Another (3486/2001)

Absa Bank Limited v van der Westhuizen and Another (3486/2001) [2004] ZAFSHC 102 (11 November 2004)

Court: Free State High Court, Bloemfontein
Case number: 3486/2001
Judge: Rampai

The court found that the plaintiff, as collecting bank, was liable to the Gauteng Provincial Government for the amount of the cheque, having received payment on behalf of persons not entitled thereto and acted negligently. The plaintiff refunded the amount and suffered loss. The defendants failed to prove any negligent misrepresentation or breach of contract by the plaintiff regarding special clearance, as no such employee existed and no special clearance was requested at the time of deposit. The evidence showed both defendants benefited from the proceeds, and the account was operated as a jo…

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Collecting Bank Liability
Negligent Misrepresentation
Joint And Several Liability
Reversal Of Credit Entries
Attorney And Client Costs

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28 May 2004

Delict [2004] ZASCA 52

FJS Painting CC v ABSA Bank Ltd (83/03)

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

Court: Supreme Court of Appeal
Case number: 83/03
Judges: Harms, Scott, Nugent, Cloete, Heher

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 presumpti…

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Collecting Bank Liability
Ownership Of Cheque
Negligence
Lex Aquilia
Bills Of Exchange Act
Pure Economic Loss

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30 May 2003

Banking And Finance [2003] ZASCA 55

Burg Trailers SA (Pty) Ltd and Another v ABSA Bank Ltd and Others (145/02)

Burg Trailers SA (Pty) Ltd and Another v ABSA Bank Ltd and Others (145/02) [2003] ZASCA 55; 2004 (1) SA 284 (SCA) (30 May 2003)

Court: Supreme Court of Appeal
Case number: 145/02
Judges: Harms, Mthiyane, Cloete, Lewis, Jones

The Supreme Court of Appeal held that Absa Bank had not unconditionally credited Morgan Brothers CC's account before the sheriff attempted attachment on 6 July 2001. The credit entry was provisional, subject to a ten-day hold and a valid stop payment instruction, and the bank had not formed the intention to pay unconditionally. The subsequent transfer of funds via bank cheque was a technical reversal of the provisional entry, not an unauthorized withdrawal. The contract between Morgan and Absa, as amplified by banking custom, permitted the bank to withhold payment until the cheque was cleared…

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Collecting Bank Liability
Provisional Credit Entries
Attachment Of Claims
Banking Custom And Contract
Stop Payment Instructions

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17 Mar 2003

Banking And Finance [2003] ZASCA 13

Absa Bank Ltd v Greyvenstein (54/2002)

Absa Bank Ltd v Greyvenstein (54/2002) [2003] ZASCA 13; 2003 (4) SA 537 (SCA) (17 March 2003)

Court: Supreme Court of Appeal
Case number: 54/2002
Judges: Howie, Harms, Streicher, Conradie, Cloete

The Supreme Court of Appeal held that the respondent was not the owner of a not-transferable cheque when it was collected, so the bank was not liable to him.

Collecting Bank Liability
Ownership Of Cheques
Negligence
Estoppel
Transferability Of Cheques
Collecting-bank-liability

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19 Nov 2001

Banking And Finance [2001] ZASCA 123

Van Hulsteyns Attorneys v Government RSA and Another (506/99)

Van Hulsteyns Attorneys v Government RSA and Another (506/99) [2001] ZASCA 123; [2002] 3 All SA 64 (A); 2002 (2) SA 295 (SCA) (19 November 2001)

Court: Supreme Court of Appeal
Case number: 506/99
Judges: Hefer, Nienaber, Schutz, Cameron, Brand

The Supreme Court of Appeal held that the appellant was in mediate possession of the stolen cheque as contemplated by section 81 of the Bills of Exchange Act. The bank credited the appellant's account based on the deposit slip and presented the cheque for payment on the appellant's behalf. The irregular manner in which the cheque was deposited did not negate the intention of the bank officials to hold the cheque for the appellant. The statutory concept of possession must be interpreted in line with the common law, which recognizes mediate possession. Accordingly, the appellant was liable for…

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Bills Of Exchange Act
Possession Of Stolen Cheque
Collecting Bank Liability
Mediate Possession
Costs Award

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28 Sept 2001

Banking And Finance [2001] ZASCA 108

Columbus Joint Venture v Absa Bank Ltd (65/2000)

Columbus Joint Venture v Absa Bank Ltd (65/2000) [2001] ZASCA 108; [2002] 1 All SA 105 (A); 2002 (1) SA 90 (SCA) (28 September 2001)

Court: Supreme Court of Appeal
Case number: 65/2000
Judges: Vivier, Olivier, Cameron, Cloete, Brand

The Supreme Court of Appeal held that the bank was not negligent in opening the Stanbrooke & Hooper account for Bertolis, as he was an existing customer with verified identity and contact details. The franchise agreement presented appeared regular and provided a plausible explanation for the use of a different account name. There were no circumstances that should have put the bank on warning or inquiry regarding impending fraud. The court rejected the appellant's contention that the bank was required to verify the authenticity of the franchise agreement or contact the supposed franchisor, as…

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Banker Duty Of Care
Negligence
Collecting Bank Liability
Fraudulent Cheque Collection

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8 Sept 2000

Delict [2000] ZASCA 166

Nedcor Bank Limited v Lloyd-Gray Lithographers (Pty) Limited (257/98)

Nedcor Bank Limited v Lloyd-Gray Lithographers (Pty) Limited (257/98) [2000] ZASCA 166; [2000] 4 All SA 393 (A) (8 September 2000)

Court: Supreme Court of Appeal
Case number: 257/98
Judges: Smalberger, Vivier, Harms, Scott, Zulman

The Supreme Court of Appeal held that Nedbank and S were concurrent wrongdoers at common law, each independently causing the same indivisible damage to the respondent. The respondent was entitled to recover the full amount of its loss from Nedbank, and its right of action against S was not a relevant asset for the purpose of calculating damages. The Court rejected the reasoning in Holscher v Absa Bank en 'n Ander, finding that it was incorrect to deduct the value of a claim against another wrongdoer from the damages recoverable from the bank. The appeal was dismissed, confirming that concurre…

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Collecting Bank Liability
Computation Of Damages
Concurrent Wrongdoers
Solidum Liability

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29 May 2000

Banking And Finance [2000] ZASCA 26

ABSA Bank Bpk. v Ons Beleggings BK (488/98)

ABSA Bank Bpk. v Ons Beleggings BK (488/98) [2000] ZASCA 26; 2000 (4) SA 27 (SCA); [2000] 3 All SA 199 (A) (29 May 2000)

Court: Supreme Court of Appeal
Case number: 488/98
Judges: F H Grosskopf, Harms, Scott, Mpati, Mthiyane

The court held that although the bank was negligent in dealing with the cheque, the respondent failed to prove actual loss and the claim could not succeed.