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[2012] ZASCA 117
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Firstrand Bank Ltd v Venter (829/11) [2012] ZASCA 117 (14 September 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 829/11
In the matter between:
FIRSTRAND BANK LIMITED
......................................................................
APPELLANT
and
SIEGFRIED VENTER
................................................................................
RESPONDENT
Neutral citation
:
Firstrand Bank v Venter
(829/11)
[2012] ZASCA 117
(14
September 2012)
Coram:
HEHER,
SHONGWE, LEACH, WALLIS AND PETSE JJA
Heard:
17 August
2012
Delivered:
14
September 2012
Updated:
Summary:
Bank –
overdrawn current account – proof of – application of
s
15
of the
Electronic Communications and Transactions Act 25 of 2002
.
Evidence –
admission of fact in claim in convention – same denied in plea
to claim in reconvention – effect –
proper approach of
court –
s 15
of Civil Proceedings Evidence Act 1965.
Defamation –
injuria – dishonour of cheques – liability of bank.
____________________________________________________________________________________
ORDER
On appeal from:
North Gauteng High Court (Pretoria)
(Ebersohn and Vilakazi AJJ sitting as court of appeal):
1. The appeal by the Bank
in relation to the claim and counterclaims is upheld with costs.
2. The order of the court
a quo is set aside and in its place the following order is made:
‘
The
appeal is dismissed with costs.’
__________
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (SHONGWE, LEACH,
WALLIS AND PETSE JJA concurring):
[1] The appellant (‘the
Bank’) sued the respondent, a farmer, (‘Mr Venter’)
in the magistrate’s court
for the district of Potgietersrus for
payment of R37 549,67, being the balance of an overdrawn current
account together with
interest at the prime rate plus four per cent
from 15 May 2004 to date of payment. The rate of interest was alleged
to be the expressly
or tacitly agreed rate or one arrived at on the
basis of bank practice.
[2] The respondent
resisted the claim. He pleaded a breach of contract ‘analogous
to fictional fulfilment’, a defence
not seriously pursued at
the trial or subsequently. He also denied the terms of the agreement
relied on by the Bank, pleading specifically
that the agreed rate of
interest on the overdraft facility was one and a half per cent per
annum above prime.
[3] The
respondent raised six counterclaims arising from the dishonour of
three cheques. He claimed damages for defamation (in claims
1, 3 and
5) and for injury to his dignity (in claims 2, 4 and 6). Claims 1 and
2 related to a cheque for R10 000 drawn by
him in favour of S
van der Bank on 25 March 2003; claims 3 and 4 related to a cheque for
R15 000 drawn by him in favour of
Novon Janwurm dated 7 April
2003; and claims 5 and 6 related to a cheque for R30 000 alleged to
have been drawn by him in favour
of the same creditor in May or June
2003. The respective claims for defamation and
iniuria
were not pleaded in the alternative. In respect of each
the respondent claimed damages of R50 000.
[4] The Bank relied on
the evidence of Mr F J G de Jager who allegedly concluded an oral
agreement to open the respondent’s
current account while he was
its manager at Mokopane from 2001 to 2005. De Jager testified
concerning the history of his dealings
with the respondent and his
account. Its only other witness was Ms Carin Cawood, a commercial
recovery analyst, employed by the
Bank in the recoveries department
at Centurion, who produced and spoke to a certificate signed by her
in purported compliance with
s 15(4)
of the
Electronic Communications
and Transactions Act 25 of 2002
.
[5] Mr Venter testified
in person and was supported by the evidence of his son, Mr Barend
Venter, in regard to the conclusion of
the agreement and the
transactions on the account. Mr I Z van der Bank gave evidence about
the dishonour of the cheque that was
the subject of the first and
second counterclaims.
[6] The magistrate gave
judgment for the Bank in the sum of R34 034,27 plus interest as
claimed in the summons. He dismissed
the counterclaims with costs. He
decided the case on the probabilities as he saw them, finding that
the Bank had been entitled
to dishonour the cheques because, at the
relevant times, there were insufficient funds in the account and no
overdraft facilities
in place. He reduced the amount claimed by the
Bank by R3515,40 because he considered that certain entries in
respect of interest
had not been proved. He made no explicit findings
concerning the credibility of the respective witnesses.
[7] Mr Venter appealed to
the full court of the North Gauteng High Court against the orders in
respect of the claim and counterclaims.
The Bank did not cross
appeal.
[8] Ebersohn
AJ
1
made the following order:
‘
1.
The appeal succeeds with costs.
2.
The order made in the court a quo is set aside and is replaced by the
following order:
“
1.
With regard to the plaintiff’s claim against the defendant
absolution from the instance is ordered.
2.
With regard to the counterclaims judgment is granted in favour of the
defendant against the plaintiff in the global amount of
R100 000,00
with interest thereon a tempore morae at the rate of 15,5% per annum
in terms of the provisions of
section 2A
(2)(a) of the
Prescribed
Rate of Interest Act, No. 55 of 1975
, calculated from the 23rd
November 2004 it being the date of service of the counterclaim on the
plaintiff’s attorneys, until
the date of payment of the
R100 000,00.
3.
The plaintiff is to pay the defendant’s costs and a special
order is made in terms of
rule 33(8)
that such costs must include
defendant’s counsel’s usual fees including counsel’s
travelling and accommodation
expenses, if applicable.”’
[9] The principal
findings of the court a quo were these:
1. Mr de Jager was ‘not
a credible witness at all. He blatantly lied at stages and he was
evasive and vague on aspects he
as bank manager should have been
acquainted with’.
2. The Bank did not
succeed in proving the correct amount of its claim against Mr Venter
either as to capital or interest.
3. The evidence of Ms
Cawood was confusing, insufficient to identify Mr Venter’s bank
account or the entries in it, and did
not establish that the bank
statements on which the Bank relied had been prepared by any person
on its behalf or had been computer-generated
as contemplated in the
Act.
4. When the cheque that
was the subject of counterclaims 1 and 2 was dishonoured there were,
by common cause, sufficient funds standing
to the credit of Venter to
meet the cheque.
5. Mr Venter withstood
cross-examination well and his detailed evidence was not shaken. He
was ‘a solid and truthful witness’
and ‘clearly
credible’. Barend Venter was likewise a clearly credible
witness.
6. In para 3
of its particulars of claim the Bank averred that the oral agreement
in terms of which the account was opened contained
a term that it
would have an overdraft facility. Venter admitted this in his plea.
It was therefore not open to the Bank to contend
otherwise even if
the evidence established the contrary. The court a quo relied upon
Whittal v Alexandria Municipality
1966
(4) SA 297
(E);
Van Deventer v De Villiers
1953 (4) SA 72
at 75-6;
Dinath
v Breedt
1966 (3) SA 712
(T) at 717. It also
referred to s 15 of the Civil Proceedings Evidence Act 25 of 1965
which provides:
‘
It
shall not be necessary for any party in any court proceedings to
prove nor shall it be competent for any such party to disprove
any
fact admitted on the record of such proceedings.’
Accordingly, all evidence
adduced on behalf of the Bank to the effect that there was no
overdraft agreement fell to be disregarded.
[10] For the reasons that
follow I am unable to agree with all but the fourth of the preceding
conclusions.
[11] The trial commenced
in April 2006. All material events had occurred nearly three years
and more before that happened. Mr de
Jager was woefully ill-prepared,
unsure of the facts even where he had been directly involved. One
gains the strong impression
in reading the record that little, if
any, attempt had been made to refresh his memory from contemporaneous
documents. Mr Venter
and his son, in stark contrast, professed total
recall of those matters that suited their case, albeit shorn of
corroborative detail
and notwithstanding a complete absence of
documentary evidence that might have assisted them. Because much of
their evidence defies
probability, as I shall explain, and because of
their strong interest in the outcome of the case, it seems to me that
the matter
would most prudently be approached on the basis that none
of the three witnesses should be preferred to another in the absence
of objective corroboration of that witness’s version or the
preponderance of probability being in favour of that evidence.
The Bank’s claim
[12] Proof
of Mr Venter’s bank statement covering the period from the
opening of the account in August 2002 to July 2004 was
placed in
general dispute by his defence. As was pointed out in
F
& I Advisors (Edms) Bpk v Eerste Nasionale Bank van SA Bpk
[1998] ZASCA 65
;
1999
(1) SA 515
(SCA) at 524H-525E, a plaintiff relying on an overdrawn
bank account is entitled to expect a defendant to place the
underlying
debits with which he or she takes issue in dispute. Only
to the extent that that is done will the court regard the plaintiff
as
obliged to prove the discrete details of his claim.
[13] In the present
instance the defendant denied the allegations of an agreement
‘subject to the normal terms and conditions
of the bank’
and further denied that interest would be calculated and compounded
at a rate of prime plus four per cent, but
did not, in his plea or
subsequently in his evidence, place in issue any specific entry in
the account.
[14] The Bank identified
the statements reflecting Mr Venter’s account through Mr de
Jager who testified that they were sent
to the customer monthly and
he raised no query. Ms Cawood testified in support of her certificate
which certified that
‘
the
attached copies being annexures of statements of account 62044246131
are extracts of data messages made by the plaintiff’s
company
in the ordinary course of business, and are correct.’
Ms Cawood neither handled
the account nor captured the data included in the statements. She was
not able to give an opinion as to
the correctness of the information
there contained. I have referred to the criticism directed against
her evidence by the court
a quo. For the reasons that follow this was
not relevant.
[15] Section 15 of the
Electronic Communications and Transactions Act provides:
‘
(1)
In any legal proceedings, the rules of evidence must not be applied
so as to deny the admissibility of a data message, in evidence-
(a)
on the mere grounds
that it is constituted by a data message; or
(b)
if it is the best
evidence that the person adducing it could reasonably be expected to
obtain, on the grounds that it is not in
its original form.
(2)
Information in the form of a data message must be given due
evidential weight.
(3)
In assessing the evidential weight of a data message, regard must be
had to-
(a)
the reliability of
the manner in which the data message was generated, stored or
communicated;
(b)
the reliability of
the manner in which the integrity of the data message was maintained;
(c)
the manner in which
its originator was identified; and
(d)
any other relevant
factor.
(4)
A data message made by a person in the ordinary course of business,
or a copy or printout of or an extract from such data message
certified to be correct by an officer in the service of such person,
is on its mere production in any civil, criminal, administrative
or
disciplinary proceedings under any law, the rules of a self
regulatory organisation or any other law or the common law,
admissible
in evidence against any person and rebuttable proof of the
facts contained in such record, copy, printout or extract.’
[16] In summary, s 15, in
the context of Chapter III,
(1)
facilitates the use of and reliance on a data message (ss (1) and
(2));
ex parte Rosch
[1998]
1 All SA 319
(W) at 327h-i;
(2) deals with the
assessment of the evidential weight of such a message (ss (3)); and
(3) lays down the minimum
requirements for admissibility (ss (4)).
Ms Cawood’s
evidence that the statements in question were ‘data messages’
was not placed in issue in cross-examination.
The certificate
complied with the terms of ss (4) and once produced was admissible
against Mr Venter and served as ‘rebuttable
proof’ of the
facts contained in the printouts of the bank statements. Such proof
did not of course extend to the underlying
agreement but it was
sufficient to establish, prima facie, the state and details of the
account and the basis for each credit or
debit. No rebuttal was
attempted by the defendant.
[17] In assessing the
weight to be attached the court a quo over-emphasised ss (3)(a), (b)
and (c), overlooking that Ms Cawood was
not led on those matters and
they were not explored with her in cross-examination in terms that
would suggest that there was some
deficiency in the records. The
court a quo also underplayed the role of ss (3)(d). In relation to
the last-mentioned subsection
what was relevant was the following:
(1) the bank sent monthly
statements detailing the state of the account to Mr Venter;
(2) he, as he conceded,
received the statements and perused them carefully; he did not
testify that the statements differed in any
way from those proved by
Ms Cawood nor did he claim that any part was overlooked or
unintelligible to him;
(3) each month’s
statement contained details of all debits and credits including his
overdraft limit, bank costs, credit and
debit interest rates on
balances, VAT, service fees, ATM charges and cash handling and
deposit fees;
(4) the defendant did not
query any aspect of the account until long after the event, subject
to what I shall have to say below.
[18] All these were
relevant factors for the purposes of ss (3)(d). The court a quo found
that the reliability of the data was seriously
affected by the
failure of Mr de Jager to prove the interest rate. It held that ‘only
the agreed rate may be applied by whomsoever
captured the data’.
As I have pointed out, however, the statements tend to prove the
details of the account kept by the bank
and not the underlying
agreement behind any particular entry. That is not a question which
the Act is designed to solve.
[19] Thus the Bank
successfully established the quantum of its claim as it had computed
it. What remains for consideration is whether
it proved the
underlying agreements in relation to the charging of interest and the
claims for bank charges, fees etc.
[20] There is a direct
conflict of evidence between Mr de Jager and the two Venters as to
the Bank’s claim for interest at
prime plus four per cent. The
former said that he made that clear to the defendant at the
initiation of the account. Later he testified
that when the temporary
unsecured overdraft was approved in January 2003 the interest rate
would have been prime plus four per
cent because ‘that was
normal when no security was provided’. But he was, in both
instances, contradicted by the contemporaneous
documentation. From
the outset Mr Venter’s monthly statements notified him that the
bank would charge a far higher rate,
and it did so from the time when
his account was first overdrawn in November 2002. The rate of
interest charged on debit balances
was reflected on the respective
statements from that month until June 2003 at 26 per cent (ie prime
plus 9 per cent), and, from
June to August 2003 at 24 per cent (ie
prime plus 8.5 per cent). Only in October 2003, after the defendant
was, according to De
Jager, supported by the records of the Bank,
granted a permanent unsecured overdraft facility, did the monthly
statements reflect
a rate of prime plus four per cent (and continued
to do so at all material times thereafter).
[21] Set against these
inconsistencies is the evidence for the defendant. Mr Venter
testified that during the initial negotiations
to open the account:
‘
Ek
het vir Mnr de Jager gevra wat is die rentekoers . . . toe sê
hy my “Nou wat wil oom betaal?”, toe sê
ek vir hom
“Man, waar ek vandaan kom betaal ek altyd prima plus 1.5%.”.
. . Hy het gesê dit klink heeltemaal
reg vir hom so, hy het nie
‘n probleem met dit nie.’
This version is highly
improbable. First, it presupposes a discretion which Mr de Jager
testified that he did not possess in relation
to an unsecured
overdrawn account. Second, such an insouciant attitude hardly accords
with commercial reality: the customer never
gets to choose his
borrowing rate and the rate suggested did not accord with the bank’s
practice in such matters. Third,
Mr Venter had no claim to
preferential treatment nor did he bring assets or prospects which
might have seduced Mr de Jager; on
the contrary his previous history
and an ongoing dispute with ABSA Bank over a million rand overdraft
would surely have suggested
that he was to some degree a credit risk.
Fourth, the monthly accounts that Mr Venter received, perused and
understood informed
him that he was being charged interest far in
excess of the supposedly agreed rate. It is true that he testified
that, on repeated
occasions, he raised the discrepancy between the
rate agreed and the rate reflected on the statements with Mr de
Jager. He said
that the latter’s response was:
‘
Oom
Sieg, moenie bekommerd wees nie, ek sal die regstelling vir jou laat
maak, los dit vir my.’
But this evidence is also
beyond belief. The manager did nothing to rectify the problem, while
the respondent, despite continuing
over a long period to receive
notice that an excessive rate was being applied to his debit account,
did nothing concrete to press
his complaint, not even to the extent
of recording it in writing before or after the issue of summons. It
should be pointed out
that Mr de Jager testified that he had no
recollection of any complaint being made to him by Mr Venter
concerning the interest
rate.
[22] On balance I think
that the most probable inference to be drawn from this confusion is
that, as submitted by the Bank’s
counsel, no express agreement
as to the rate was arrived at before October 2003. The defendant, no
stranger to the banker/client
relationship, well-knowing that the
Bank would charge costs and fees and levy interest on his overdrawn
account in accordance with
its usual practice, was content to submit
himself to that practice provided only that the rates and charges
were reasonable. That
is in fact what happened over the duration of
the relationship. Neither while the account was in operation nor
during his evidence
did Mr Venter suggest that such rates and charges
were other than reasonable. On that basis the Bank’s statements
reflect
the tacit agreement of the parties as to the foundations of
the account and the amount of the Bank’s claim did not require
adjustment by the magistrate. However, as I have pointed out, the
Bank did not challenge the reduction effected by the magistrate
and
we are limited in setting aside the judgment of the court a quo in
relation to the claim in convention, to restoring the order
made at
first instance.
The counterclaims
[23] The respondent’s
case, in relation to which he bore the onus, was that when the Bank
dishonoured each of the three cheques,
his account held sufficient
funds to meet that cheque, either because it was in credit or because
an overdraft facility had been
agreed to an extent sufficient to
justify payment by the Bank.
[24] None of the three
cheques was produced at the trial. It appeared to be common cause
that each had been endorsed ‘refer
to drawer’ but no
evidence was led to explain that endorsement. This was a matter
within the knowledge of the Bank. It had
pleaded in relation to each
cheque that there were insufficient funds to meet it and one must
therefore assume against the Bank
that it purported to act on that
understanding in dishonouring the cheques.
[25] The non-production
of the cheques also meant that the trial court had no reliable
indication of when each was drawn in relation
to the date of its
dishonour. (I assume that the last-mentioned date was the date of the
appropriate debit on the bank statement,
but here too there was no
evidence to explain the sequence of events.) This might have been of
importance in relation to the first
cheque presented and dishonoured
on 25 March 2003 since this appears to have been the first of three
cheques presented on that
day in amounts of R10 000, R27 000 and
R7720 respectively. The last two were honoured by the bank despite
the balance on the account
being reduced thereby to a debit of R11
984,18. The case was fought upon the terms of the Bank’s plea
that there were indeed
insufficient funds available to meet the first
cheque but Mr de Jager and the defendant agreed in evidence that
sufficient funds
were in fact available. For reasons which will be
explained, this confusion does not affect the result.
[26] It was submitted on
behalf of Mr Venter that the Bank had admitted in its particulars of
claim that the current account was
approved ‘with an overdraft
facility’. Therefore, so the argument proceeded, it was not
open to the Bank to deny the
existence of a facility at the dates of
presentation of any of the dishonoured cheques, as it had in its
pleas to the counterclaims
and through the evidence of Mr de Jager.
[27]
If
a strict, technical approach is adopted the allegations in the
particulars of claim and the admission of those allegations in
Mr
Venter’s plea are irrelevant. The reason is that on this aspect
of the case we are concerned with Mr Venter’s claim
in
reconvention and not with the claim made by the Bank against Mr
Venter. As pointed out in Harms,
Civil
Procedure in the Supreme Court
(loose
leaf) para B24.1, p B-171 (Issue 40) ‘a claim in reconvention
is a convenient surrogate for an independent action’.
The main
object of permitting a defendant in an action to raise a claim in
reconvention is to secure that both claims are adjudicated
upon
simultaneously and judgment entered in accordance with the balance
that results from the adjudication. Nicholas J in
Fisheries
Development Corporation of SA Ltd v Jorgensen & Another;
Fisheries Development Corporation of SA Ltd v AWJ Investments
(Pty)
Ltd & Others
1979 (3) SA 1331
(W)
at 1337D-F, correctly stated the position in the following terms:
‘
Where,
as in the present case, the claim in reconvention is entirely
separate and distinct from the claim in convention, there are
really
two actions, the main action and a cross-action ... To a certain
extent, it is true, the pleadings run a parallel course
– plea
and claim in reconvention; replication and plea in reconvention; as a
general rule claim and counterclaim will be
adjudicated together ...
and the Court may in its discretion make a single order to both claim
and counterclaim. But the fact remains
that the two actions are
separate and distinct.’
[28] It follows from this
elementary principle that any admission embodied in the pleadings in
relation to the claim in convention
is only relevant in relation to
the claim in reconvention if and to the extent that the admission is
incorporated into the pleadings
in relation to the claim in
reconvention. That did not occur in the present case. Where s 15 of
the Civil Proceedings Evidence
Act refers to a ‘fact admitted
on the record of such proceedings’ it should in my view be
interpreted in a sense consistent
with the principle I have stated.
Mr Venter pleaded that the Bank was obliged to meet all cheques drawn
on his account, either
on the basis of his alleged general overdraft
facility or on the basis of a special arrangement in relation to
these three particular
cheques. The Bank, in its plea to these
allegations, pleaded specifically in relation to all three cheques
that at the time each
was presented for payment Mr Venter did not
have sufficient funds in his account and no arrangements for an
overdraft facility
had been made that would have obliged it to pay
the cheque. On the pleadings in respect of the claim in reconvention
there was
accordingly no admission as contended for on behalf of Mr
Venter. The case was conducted on the basis that the existence of
adequate
funds or an overdraft facility at the time these three
cheques were presented for payment was in dispute between the
parties.
[29]
This approach to questions of pleadings may seem technical, although
it is no more technical than the approach adopted in order
to achieve
substantial justice in the case of
Dinath
v Breedt
, supra, relied on by the court
a quo, but it would be an extraordinary result were Mr Venter able to
rely upon an admission contained
in the pleadings between him and the
Bank in relation to the Bank’s claim to recover the balance
owing on the overdraft,
whilst ignoring the pleadings in the claim in
reconvention, where he advanced his claims of iniuria and defamation,
where the facts
were expressly put in issue. If a court is to adopt a
less technical approach then it must at least have regard to all the
pleadings
in the action, that is, both those in relation to the claim
in convention and those in relation to the claim in reconvention. If
that is done, and the pleadings are construed as a whole, there was
no admission that at the time the three cheques were presented
for
payment Mr Venter had either a general overdraft facility or a
special arrangement for overdraft facilities that would have
entitled
him to require the Bank to honour these cheques. The Bank expressly
denied the existence of any such overdraft facilities
or any such
arrangement. The statement in the particulars of claim that Mr Venter
was accorded a current account ‘met ‘n
oortrokke
fasilitiet’ must be construed in the light of the express
denials that such facility existed and was available
to him at the
time the three cheques were presented for payment. Litigants cannot
pick and choose those portions of the pleadings
that suit them whilst
disregarding those portions that are against them.
[30]
It is salutary in this regard to remember what Innes CJ said in
Robinson v Randfontein Estates GM Co Ltd
1925 AD 173
at 198:
‘
The
object of pleading is to define the issue; and parties will be kept
strictly to their pleas where any departure would cause
prejudice or
would prevent full enquiry. But within those limits the court has a
wide discretion. For pleadings are made for the
court, not the court
for pleadings.’
It is
for that reason that courts have always held themselves entitled to
determine an issue, even though not raised on the pleadings,
where
that issue has been fully canvassed at the trial and both parties
have had every facility to place all the facts before the
trial
court. See
Shill v Milner
1937
AD 101
at 105. Were one to ask in this case, as De Villiers JA did in
Shill v Milner
,
what the substantial issue was between the parties in the court
below, there could be only one answer. It is that the issue was
whether Mr Venter had access to appropriate overdraft facilities at
the time that each of the three cheques was dishonoured. That
being
so, there is no reason to give to the pleadings a strained and
unnecessary meaning inconsistent with the understanding of
the
parties and the basis upon which this litigation was conducted.
Properly construed the statement in the particulars of claim
meant
nothing more than that at a stage of the relationship between the
Bank and Mr Venter the latter was allowed overdraft facilities
and
those overdraft facilities gave rise to the claim eventually made by
the Bank against Mr Venter. That approach not only accords
with
reality, but is consistent with the benevolent approach that courts
normally adopt towards pleadings in the magistrates court.
[31]
It is unnecessary, in the light of those conclusions, to consider the
effect of the decision in this court in
Rance
v Union Mercantile Co Ltd
1922
AD 312
at 315; or whether as Greenberg J suggested in
Canaric
NO v Shevil’s Garage
1932
TPD 196
at 199
2
‘
the Court
may disregard an admission made in the pleadings, where it is clear
after a full investigation that this admission is
contrary to the
facts and where injustice would result from an adherence to the
admission’. Those issues do not arise in
the present case
because, for the reasons I have given, no such admission as contended
for by Mr Venter is contained in the pleadings.
[32]
I turn then to the facts.
The
bank records show that the monthly statements reflected a nil
overdraft from the initiation of the account – an assertion
that Mr Venter did not challenge or query. Only in January 2003 did
he furnish a balance sheet to enable the
bank to assess his
financial stability and even then he provided no security for the
advance of funds. After providing the balance
sheet his account was
allowed to run into debit. De Jager had no authority to approve an
unsecured overdraft to new clients on
a permanent basis. In the
period February to May, according to his own admission, Mr Venter
frequently sought Mr de Jager’s
verbal approval for the issue
of cheques. According to him there had been a standing facility in
place with a limit of R30 000
since August. Plainly it should have
been unnecessary to ask for approval unless there was a danger of
that limit being exceeded.
Yet Mr Venter did so. All things
considered the probabilities lean strongly against existence of a
permanent facility and, with
one reservation (referred to in para 32
below) in favour of Mr de Jager’s version that whatever leeway
was afforded to Mr
Venter was dealt with first on the basis of a
globular limit of R30 000 until the end of March and thereafter
on a case by
case basis.
[33] There is a further
item of documentary evidence that merits reference although it was
not referred to by the witnesses or the
parties’ counsel. It is
Exh A3 p 64 and forms part of a bundle of apparently contemporaneous
bank records. It is headed “Excess
Report – Agricultural
Segment’ and dated 4 March 2003. It plainly relates to an
application by Mr Venter for an extension
of his overdraft facility.
The relevant extracts are these:
‘
REASON
FOR EXCESS: Temporary facility expired R30 000 expected on
28/02/2003
SOURCE
& TIMING OF ADJUSTMENT: Customer still busy with the harvesting
of maize, will only commence on 05/03/2003 as the maize
was still too
wet.
.
. .
BRANCH
MANAGER’S RECOMMENDATIONS:
Kindly
extend facility of R20 000 till end March.’
[34] There is no document
that suggests a further approved extension after the end of March
2003. The significance of this evidence
is that:
1. It confirms Mr de
Jager’s evidence of the approval of a temporary facility of
R30 000 for the latter part of January
and the whole of February
2003.
2. It tends to show that
the facility was extended by Mr de Jager at the customer’s
request until the end of March at a lower
limit of R20 000.
3. It renders improbable
Mr Venter’s evidence that a permanent facility of R35 000
agreed in August 2002 ‘for the season’
ie 12 months,
remained in operation during the whole of this period (and
subsequently).
4. The absence of an
extension into April and May tends to support Mr de Jager’s
evidence that when, during those months,
the customer expected to
issue a cheque that might result in an excess he asked for (and was
granted) special approval to meet
the amount or occasion of the
payment.
[35] I accordingly think
that the Bank’s version that Mr Venter was not afforded a
general overdraft facility is more probable
than his claim to have
been granted such a facility. The onus accordingly rested on him to
prove in relation to each of the dishonoured
cheques, that he
obtained approval in advance for the issue of the particular cheque.
Should he not have discharged this burden
the trial court ought to
have concluded that the Bank was entitled to refuse to pay the cheque
because of an absence of funds.
[36] In the light of this
conclusion the circumstances prevailing at the time of the
presentation of each dishonoured require consideration.
The first cheque
[37] I am prepared to
assume in favour of Mr Venter that when this cheque was presented
sufficient funds were available to meet
it or, if that was not the
case, that he had made special arrangements for the bank to honour
it. As to what happened thereafter
the evidence of Mr Venter and his
son is supported by that of the creditor, Mr van der Bank, an
apparently impartial witness. The
last-mentioned had received the
cheque in payment for work being carried out on the defendant’s
farm. He deposited it. While
present in the defendant’s home
the latter received a telephone call. He informed Mr van der Bank
that the bank had phoned
to apologise for its error in stopping the
cheque. The bank had assured him that he could forthwith issue a
replacement cheque
for the same amount which would be met. While this
was happening the payee’s mother phoned to tell him that the
cheque had
been dishonoured. Mr van der Bank accepted the replacement
cheque, deposited it and was paid. He testified that the incident did
not affect his regard for Mr Venter or lead him to doubt his
creditworthiness.
[38] This evidence
establishes that, in accepting sole fault for the non-payment of the
cheque before Mr Venter or his payee was
aware of its dishonour, the
bank rebutted any presumption of a
nimus iniuriandi
arising
from its unwarranted action. Moreover it enabled Mr Venter to redress
the position at the earliest possible opportunity
with no blame
whatsoever attaching to himself. His creditor did not regard the
dishonour as a slur upon him and in so far as Mr
Venter testified
that he felt humiliated and embarrassed, his reaction, if not
exaggerated, was unreasonable in the circumstances.
This claim was
belied by the fact that he made no complaint to the Bank at the time
or until it sued him. In my view the trial
court should have
concluded that Mr Venter had not proved that he suffered any inuria
(actionable harm) in consequence of the dishonour.
The first and
second counterclaims should have failed for these reasons.
The second cheque
[39] Mr Venter’s
evidence was that he obtained express approval to overdraw his
account in advance of the issue of this cheque
from Mr de Jager. The
latter denied that. No probabilities favour Mr Venter’s
version. On the contrary, for the reasons I
have already advanced, he
must be disbelieved on the aspect of a prevailing permanent facility.
It also seems most unlikely that
Mr de Jager, having been obliged to
apologise shortly before for the unjustified dishonour of a cheque,
would have allowed that
to happen a second time despite having given
an express undertaking to meet the second cheque. Remarkably Mr
Venter, insulted and
humiliated as he claims to have been, took no
steps to complain or obtain redress until sued by the bank more than
a year later.
In the circumstances I am satisfied that he failed to
discharge the onus of proof in relation to the third and fourth
counterclaims
because the trial court must have been left in serious
doubt about the wrongfulness of the bank’s action in
dishonouring
the cheque.
The third cheque
[40] Much the same
considerations apply to the dishonour of this cheque. The
unlikelihood of Mr Venter’s quiescent response
is emphasised by
the fact that it would have been the bank’s third default and
the second within a short time period in relation
to the same
creditor, Novon Janwurm. Further material facts are these: the
account had reflected a steadily growing debit balance
from 10 April
and by 14 April stood R22 280 in the red. Mr de Jager denied that he
had been asked or had agreed to meet the cheque.
Mr Venter drew no
cheques after that date. The cheque in question (number 59) would
probably have been drawn towards the end of
March (since numbers 58
and 60, 61, 62, 63, 65, 66 and 67 are recorded as having been met in
the last week of March and the first
week of April). Cheque number 59
for R30 000 was dishonoured on 23 May and would have increased
the debit balance to R52 907,12
if paid. After its dishonour, Mr
Venter did nothing to reduce the debt to the bank and did not issue a
replacement cheque to the
creditor. Only in October 2003, without
intervening operation of the account, was a permanent overdraft
facility of R35 000
extended to him for a period of one year. In
all these circumstances I can find no reason why the trial court
should have favoured
Mr Venter’s version above that of Mr de
Jager. The fifth and sixth counterclaims also fell short of the mark
and should have
been dismissed.
[41] The magistrate’s
approach to the counterclaims was correct and the appeal to the high
court should not have succeeded.
[42] In the result the
following order is made:
1. The appeal by the Bank
in relation to the claim and counterclaims is upheld with costs.
2. The order of the court
a quo is set aside and in its place the following order is made:
‘
The appeal is
dismissed with costs.’
_________________
J A HEHER
JUDGE OF APPEAL
APPEARANCES
APPELLANT: D M Leathern
SC
A J Coetzer & De
Beer, Mokopane
p/a Bezuidenhouts Inc,
Bloemfontein
RESPONDENT: R du Plessis
SC
Joop Lewies Attorneys,
Pretoria
p/a Vermaak & Dennis,
Bloemfontein
1
Vilakazi
AJ had died in the interim. The parties agreed to accept the order.
2
And
Van den Heever AJ so held in
Fourie v Sentrasure Bpk
1997 (4)
SA 950
(NC) at 970B.