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[2013] ZAGPPHC 74
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Kirsten and Thomson CC t/a Nashua, East London v Commissioner for South African Revenue Services and Another (1681/08) [2013] ZAGPPHC 74 (6 March 2013)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number: 1681/08
DATE:06/03/2013
In
the matter between:
KIRSTEN
AND THOMSON CC t/a
NASHUA
..........................................
PLAINTIFF
EAST
LONDON
and
THE
COMMISSIONER FOR
SOUTH
......................................................
1st
DEFENDANT
AFRICAN
REVENUE SERVICES
ABSA
BANK
LIMITED
...............................................................................
2nd
DEFENDANT
JUDGMENT
FABRICIUS
J,
Plaintiff’s
managing owner Mr. Thomson, was “done-in”, as First
Defendant’s senior counsel put it to him
during cross
examination. He seeks justice in these proceedings but, in a
constitutional state governed by the Rule of Law, justice
can only be
achieved if a judge applies the law. In order to achieve his aim he
relied in the main claim on the condictio indebiti
against the First
Defendant, and at the commencement of the trial withdrew the claim
against Second Defendant. The condictio indebiti,
is an equitable
remedy, which, subject to certain conditions, seeks to ensure that no
one is unjustifiably enriched at the expense
of another. It must
however always be remembered be it in this context, or in any other,
that a court must do justice not only
to a Plaintiff, but also to a
Defendant. As will be shown, First Defendant was not paid twice by
Plaintiff, and was also not enriched
at Plaintiff’s expense.
2.
In
Nortje en ‘n Ander v Pool NO
1966 (3) SA 96
(A), the majority
of the court held that there was no general enrichment action in our
law, but that such an action could develop
in future. I only intend
to deal with this particular topic very briefly, because whether or
not the time is now right for the
recognition of such an action was
not fully argued before me. A wise court does in my view not easily
deviate from well established
principles or authorities, in the
absence of thorough argument, and of course if it is necessary to
decide the issues before it
I have however read the views of JE
Sholtens in this particular context in a number of South African law
journals, but more particularly
in
1966 SALJ 393
to 402 which,
according to Eisefen and Pienaar, in Unjustified Enrichment, a Case
Book, 2nd edition, Butterworth Publishers at
22, convincingly proves
that a general enrichment action had in fact developed in the
Roman-Dutch Law of the 18th century. D Visser
in Unjustified
Enrichment, Juta and Company, 2008 at 12, writes that recognising a
general enrichment action is clearly a big move.
I agree with that
view. Apart from Sholtens, Feenstra referred to by Visser at 35
footnote 167 also showed convincingly that a
general enrichment claim
existed in 18th century practice in Roman-Dutch law. It is in this
context somewhat ironic that Hefer
JA in Willis Faber Enthoven (Pty)
Ltd v Receiver of Revenue and Another
[1991] ZASCA 163
;
1992 (4) SA 202
(A) reminded us
that the Roman-Dutch Law is “virile living system of law. ever
seeking, as every such system must, to adapt
itself consistently with
its inherent basic principles to deal effectively with the increasing
complexities of modern organised
society." The condictio
indebiti, as I have said, has since Roman times always been regarded
as a remedy ex aequo et bono
to prevent one person being
unjustifiable enriched at the expense of another. In that decision
the distinction between a payment
made in error of law and error of
fact was held to be illogical and of no further application in our
law. An indebitum paid as
a result of a mistake of law could
therefore be recovered, provided that the mistake was found to be
excusable in the circumstances
of the particular case.
3.
As
I have said the majority judgment in the Nortje v Pool supra ought to
be revisited in the light of all the authorities that convincingly
argue in favour of the adoption of the general enrichment action. It
is unfortunate that I cannot do so in these proceedings for
the
reasons that I have mentioned, but in any event, it would best be the
function of the Supreme Court of Appeal itself.
4.
Plaintiff’s
alternative claim was formulated on the basis that the First
Defendant owed Plaintiff a duty of care, relevant
to the manner in
which it dealt with the first cheque that had been delivered by
Plaintiff to its offices. Elements of negligence
and wrongfulness had
been pleaded within the ambit of what was held to be required in the
decision of McCarthy Limited/ Budget
Rent- a -Car v Sunset Beach
Trading 300 CC T/A Harvey World Travel and Another
2012 (6) SA 551
(GNP).
5.
Plaintiff’s
first claim based on the condictio was formulated as follows in the
particulars of claim, and, the factual allegations
contained therein
were essentially not disputed in these proceedings:
“
5.
5.10n or about 5th April 2007 Plaintiff delivered cheque number
015981 drawn on Plaintiff's Bankers, being the East London branch
of
First National Bank Limited (hereinafter referred to as “the
cheque”) to First Defendant s East London branch office.
5.2The
cheque was drawn in favour of First Defendant, was post dated to 25
April 2007 was crossed and marked “not transferable”
and
was made payable in an amount of R432 375.34.
4.3
A copy of the cheque is attached hereto marked Annexure “A”.
5.4The
cheque was hand delivered on behalf of Plaintiff and was signed for
in Plaintiff’s delivery record by a receptionist
acting in the
course and scope of his or her employment by First Defendant, one
NOX, whose full and further particulars are to
Plaintiff unknown.
5.5The
cheque was issued in favour of First Defendant in the discharge of
Plaintiff s liability for the payment of VAT arising from
Plaintiff’s
trade activity during February and March 2007.
5.6Delivery
of the cheque in the aforementioned circumstances constituted payment
by the Plaintiff to the First Defendant thereby
discharging the
Plaintiff’s obligations to the First Defendant in respect of
VAT for the period February/ March 2007.
5.7On
or about 18 May 2007 and in the erroneous but bona fide and
reasonable belief that it was obligated to do so, Plaintiff provided
the First Defendant with a replacement cheque, made out in favour of
the First Defendant in the amount of R432 375. 34, which cheque
was
presented for payment by an authorised employee of First Defendant in
due course and the amount of R432375.34 debited from
Plaintiff’s
Bank account.
5.8The
aforesaid second payment constituted a duplication of the first
payment for which the Plaintiff was not liable in law.
5.9The
plaintiff has accordingly been impoverished in the aforesaid amount
of R432 375 34 and the First Defendant has been unjustly
enriched in
the aforesaid sum.
5.10
The First Defendant is accordingly liable in the premises to pay to
the Plaintiff the aforesaid sum of R432 375.34.”
6.
As
far as the alternative claim was concerned Mr. Ford SC, on behalf of
Plaintiff said in argument that this claim only arose in
the event
that it being held that the first cheque was indeed delivered to the
offices of First Defendant, but not in circumstances
establishing
that the First Defendant thereby accepted payment, became the true
owner of the cheque and bore the risk in respect
thereof Before I
deal with Plaintiff's first claim, it must be said that Mr. P Louw SC
on behalf of First Defendant admitted after
Plaintiff’s
evidence, that the mentioned first cheque had indeed been delivered
to First Defendant, and that it had become
the “true owner”
thereof. Because Plaintiff did not retain ownership of the original
first cheque, there was no duty
upon First Defendant at all either to
Plaintiff or to anyone else in the context of the alternative claim
as pleaded, with the
result that this claim did not arise for
adjudication. Ownership of the relevant cheque passed upon delivery
because it is a moveable
corporeal. See: ABSA Bank Limited v
Greyvenstein
2003 (4) SA 537
HHA at 543 par 9. Mr. P Louw SC did not
tell me what a “true owner” was in the present context,
and accordingly I did
some reading on this topic and found that the
word “true'’ does not serve to qualify the ordinary
meaning of ’’owner”
as used in legal parlance. As a
matter of proper terminology therefore the word “true” is
unnecessary in the given
context.
See:
First National Bank of SA Limited v Quality Tyres (1917) (Pty) Ltd
[1995] ZASCA 65
;
1995 (3) SA 556
(AD) at 568 A to F. In this decision the court also
held that ownership of a cheque, viewed as a piece of corporeal
movable property
can be transferred only in accordance with the
general requirements of the law regarding transfer of ownership of
corporeal movables.
There must be delivery of the thing, i.e.
transfer of possession, either actual or constructive, by the
transferor to the transferee,
and there must be a real agreement (in
the sense of “saaklike ooreenkoms”) between the
transferor and the transferee,
constituted by the intention of the
former to transfer ownership and the intention of the latter to
receive it. (At 568). The evidence
tendered by Plaintiff in this
context established without any doubt that such transfer of ownership
had taken place and Mr P Louw
SC was quite correct in conceding this
without any further ado. He is also correct when submitting that as a
result the alternative
claim did not arise for adjudication. Having
become the owner of the first cheque the First Defendant did not owe
a legal duty
towards Plaintiff or indeed anyone else, inasmuch that
there is nothing to suggest that it acted wrongfully. During argument
Plaintiff’s
counsel referred to First Defendant’s
affidavit resisting summary judgment, in which it was stated that the
cheque was in
all probability stolen by one of its employees or by a
third party. It was however also denied that such employee would have
acted
within the course and scope of his employment. There was no
evidence before me as to how this cheque was mislaid,
misappropriated,
or otherwise dealt with. First Defendant had pleaded
that it denied, as a matter of law, that delivery of the first cheque
discharged
the Plaintiff’s obligation to pay the relevant VAT.
It pleaded that the first cheque was not collected by the ostensible
collecting bank i.e. the Second Defendant, that it was not paid by
FNB, and that the First Defendant did not receive the proceeds
of
this cheque. Accordingly it was not paid in fact and in law. It did
admit that Plaintiff paid the outstanding VAT on 18 May
2007 by means
of the “second cheque”. It however denied that this
payment was sine causa in that it discharged the
Plaintiff’s
indebtedness to First Defendant to pay over the relevant VAT which
it, the Plaintiff, had received. It accordingly
pleaded that there
was no “first payment” as alleged, in that the first
cheque was not paid, and that there was also
no “second
payment” as alleged, in that there was only one payment, namely
the payment by means of the second cheque
on 18 May 2007. The First
Defendant was accordingly not enriched at all, in that the delivery
of the first cheque did not discharge
the Plaintiff’s debt, and
because First Defendant also did not receive payment under the first
cheque, nor had it been collected
or paid Moreover, it was pleaded
that Plaintiff had not been impoverished in that First National Bank
(FNB) had no right to debit
the Plaintiff’s account with the
amount of the first cheque under the relevant circumstances.
7.
Plaintiff
filed a replication, and pleaded that the first cheque, being crossed
generally and drawn on FNB, was paid in good faith
without negligence
by FNB to ABSA bank after such cheque had come into the hands of the
payee thereof, being the First Defendant.
The Plaintiff and FNB are,
so it was pleaded, in accordance with the provisions of s79 of the
Bills of Exchange Act 34 of 1964,
entitled to the same rights and to
be placed in the same position as if payment of the cheque had been
made to the true owner thereof,
namely the First Defendant. The fact
that the First Defendant may not, in fact, have received payment of
the first cheque is accordingly
irrelevant to Plaintiff’s
claims herein. The Plaintiff maintains that, both in fact and in law,
the delivery of the first
cheque, which was subsequently paid by FNB
to ABSA Bank debited to the Plaintiff’s bank account,
constituted payment to the
First Defendant of Plaintiff’s VAT
obligation in respect of the relevant period.
8.
Plaintiff’s
argument:
In
general payment by cheque is prima facie regarded as immediate
payment subject to a condition. The condition is that the cheque
be
honoured on presentation. When the cheque is so honoured the date of
payment of the debt is the giving of the cheque. Conversely,
if the
cheque is dishonoured there has been no payment See: Eriksons Motors
(Wefkom) Limited v Protea Motors Warrenton 1973 (3)
685 (A). In this
regard it was submitted that a common sense approach was required.
There was nothing to suggest that with regard
to the fulfilment of
the suspensive condition namely the cheque being honoured on
presentation, that there was any requirement
that this occur strictly
in accordance with normal banking practice or custom. The focus was
entirely upon whether the cheque was
honoured or dishonoured, and not
on the process by which this occurred. It was accordingly submitted
that Plaintiff had established
on a balance of probabilities that it
indeed effected payment of the VAT obligation by delivery of the
first cheque. The unjustified
enrichment, so I was told, arose upon
the payment of the second cheque as a result. In the context of the
replication and s79 of
the Bills of Exchange Act 34 of 1964 as
amended, it was submitted that the incidence of the onus of proof
must be determined without
regard to matters of practical convenience
and fairness, such as sources of knowledge. In regard to a bank
claiming the protection
afforded by this section such bank was
required to prove that a payment was made in good faith and without
negligence.
See:
Eskom v First National Bank of Southern Africa Limited
[1994] ZASCA 186
;
1995 (2) SA
386
(A).
Plaintiff called a witness Mr Ries,
from FNB. He was a rather reluctant speaker but when cross-examined,
he did concede that there
was a discrepancy between the date of the
cheque and the date of the stamp appearing thereon. Mr. Ford SC
submitted that in the
absence of any evidence suggesting that payment
in those circumstances would have constituted negligence on the part
of the drawee
bank, the Plaintiff had established its entitlement to
rely on the provisions of s79 of the Act. He referred me to the
general
requirements for liability for enrichment, and submitted that
all of them had been established on the evidence. There was nothing
to suggest that Mr. Thomson had been inexcusable slack when paying
the second cheque, inasmuch as he had been told by a representative
of First Defendant that his VAT obligations remained due, and that in
order to avoid penalties and interest in the amount of some
R 40 000,
payment was required. In any event, I do not deem it necessary to
deal with this particular requirement any further,
inasmuch as any so
called slackness in the given context was never put to Mr Thomson on
behalf of First Defendant or debated with
him. It is therefore not
necessary to deal with Mr. Ford SC’s invitation that I could
abolish the requirement that payment
must not be inexcusable. See in
this context: D Visser, Unjustified Enrichment supra at 316 to 318,
and Unjustified Enrichment,
Eiselen and Pienaar supra at 143
9.
First
Defendant s argument
Mr.
P Louw SC referred me to the requirements of all the condictiones
sine causa, including the condtctio indebiti as set out in
Kudu
Granite Operations (Pty) Ltd v Caterna Limited
2003 (5) SA 193
SCA.
These are that the Defendant must be enriched, that the Plaintiff
must be impoverished, that there must be a causal connection
between
the enrichment and the Impoverishment and that the enrichment must be
sine causa. Over and above these general requirements,
the special
requirements of the sine causa requirement of the condictio indebiti
are that the Plaintiff paid a sum to the Defendant,
that payment was
not due under any civil or natural obligation, or any other
reasonable cause, and that payment was made as a result
of an
excusable error Mr. P Louw SC then submitted that properly analysed,
the theory of Plaintiff’s claim was that the first
cheque was
paid because it was delivered and because the drawee bank, FNB, paid
the amount of the first cheque to ABSA. Plaintiff
then relied on s79
of the Bills of Exchange Act and tried to utilise it in two ways: in
the first place it used the section to
prove its own impoverishment.
In this regard it contended that FNB debited its account with the
amount of the first cheque in circumstances
covered by the section.
In the second place, it used the section as proof of a “deemed”
enrichment on the part of SARS.
It was then argued that Plaintiff’s
theory, if one can call it that, or premise underline the first
claim, was wrong on a
number of fundamental points. It was
accordingly submitted that s79 of the Act had no effect on an
enrichment claim. Its primary
role and function is limited to
regulating the contractual relationship between the drawer and drawee
bank where a crossed cheque
is lost or stolen and collected by
another bank. This section also places a subsidiary role in the
delictual relationship between
the drawer, as “true owner”
of a cheque, and the collecting bank. Chapter II of the Act deals
with cheques and sections
75 to 86 deals with crossed cheques. The
fundamental policy that underlies these sections is that a crossed
cheque is a special
instrument with special rules as between drawer
and drawee. If a cheque is crossed, it has to be collected by a bank,
and the drawee
must be the collecting bank (s78( 1)) This means, in
practice, that where a cheque is crossed the collecting and paying
functions
of a cheque are split between two banks, the collecting
bank and a drawee or paying bank. If a cheque is collected by a bank
other
than the drawee, the latter has no means of establishing for
whom the cheque is collected. The drawee bank’s duty is limited
to making payment to the collecting bank. This gives rise to two
consequences so it was argued. The first is that the errant
collection
of a cheque (that is for someone other than the named
payee) is a matter for which only the collecting bank can be
answerable.
The second is that the drawee bank must nevertheless
remain vigilant. Section 79 requires it to pay in good faith, the
meaning
of which is found in s94 of the Act.
10.
Section
79 of the Act and the collecting bank
:
It
was submitted that the collecting bank is in principle liable for the
negligent collection of a crossed cheque for someone other
than the
named payee.
See Indac Electronics (Pty) Ltd v
Volkskas Bank Limited
[1991] ZASCA 190
;
1992 (1) SA 783
(A). The standing (“locus
standi”) of the Plaintiff is determined on the basis of the
ownership of the cheque, that
is, the piece of paper, not the rights
in them. The rule of practice is that if the drawer delivers a cheque
to the payee, the
ownership is transferred After delivery the payee
can sue the collecting bank for the errant collection, if the cheque
is of course
lost or stolen and deposited for collection by someone
else. Before delivery, the drawer has the necessary locus standi, or
standing
to sue.
See
First National Bank of SA Limited v Quality Tyres (1990) (Pty) Ltd
(supra) at 568 but also especially at 5681, where, in the
context of
the definition of “delivery” in the Act, Botha JA held
that the transfer of rights flowing from the cheque
is inextricably
tied up with the transfer of the ownership of the cheque.
The
inherent logic of the Act. so the argument continued, in respect of
lost or stolen crossed cheques that are deposited for collection
by
entities other then the named payees (where the cheques are marked
“not transferable”) is that the drawee bank may
debit the
drawer’s account, and, depending on the delivery, either the
drawer or payee can sue the collecting bank. Closely
linked to these
rules is the common law rule, to which I have referred, that
payment
by cheque is timed to take place when it is delivered, but subject to
the condition that it be paid by the drawee.
See
8 + H Engineering v First National Bank of SA Limited
[1994] ZASCA 152
;
1995 (2) SA 279
(A) 285H to 286C, Delivery of a crossed cheque marked “not
transferable” is not payment The cheque first has to be
deposited for collection, go through the collection process in one
bank and then send to the drawee bank, and the later must pay
the
collecting bank (not negligently and bona fide). All this postulates
that the cheque collected must be the cheque paid. It
is only if it
can be proven that the collecting bank collected the very cheque that
is in due course paid by the drawee, that the
collecting bank has a
case to answer. The reason was obvious, if the collecting bank
collects a cheque showing its customer to
be the payee, then it does
not act negligently.
All
these rules. Mr Louw SC submitted, primarily concern the law of
delict. They show when someone who is not the client of the
collecting bank can sue it for something that it did or did not do.
These rules amend the first principle of delict, namely that
everyone
has to bear the loss he or she suffers. Aquilian liability provided
an exception to the rule, as is well known.
See:
Telematrics (Pty) Ltd v ASA
2006 (1) SA 461
(SCA) at par 12. Mr. P
Louw SC contended that the attempt in this case to transport these
rules to realm of enrichment was interesting,
but doomed to failure.
A number of questions first had to be asked and answered.
11.
Payment
and the first cheque:
Whether
the first cheque was paid is a factual question. Mr. Thomson
confirmed that he was liable to pay VAT to SARS for its trading
activities for the month of February and March 2007 in the amount of
R432 375.34. In order to discharge this liability Plaintiff
drew a
cheque on 5 April 2007, but it was post-dated to 25 April 2007. It
was drawn on the East London branch of FNB. It was made
payable to
SARS it was crossed and marked “not transferable” This
was referred to as the genuine cheque and it was
handed in as an
exhibit This cheque was delivered to the East London branch of First
Defendant on 5 April 2007. This was conceded
after evidence was lead.
I have already mentioned, and this was conceded by Mr. P Louw SC,
that accordingly SARS became the owner
of this cheque on the facts of
the case. The genuine cheque was not deposited by SARS, SARS did not
receive its proceeds, and it
was probably stolen by a person unknown
to either Plaintiff or First Defendant. It was contended that from
the objective evidence
it could not be disputed that it was clear
that the unknown person or persons then copied the following
particulars of the genuine
cheque onto a piece of paper that looked
like a cheque, and this was referred to during argument as “the
cloned cheque '
11.1
The name of the drawer, K and T;
11.2
the name of the drawee, FNB;
11.3
the name of SARS-branch where K&T account was held, East London;
11.4
the branch code of this branch, 210121
11.5
the account number of K&T’s account. 52123947966;
11.6
the date of the genuine cheque, 25 April 2007.
The
name of the payee on the cloned cheque was changed from SARS to
“Bihlongwa Construction CC”. Apart from the constitutive
signatures of K&T on the genuine cheque, the name of the payee
was probable the only difference between the genuine and cloned
cheques.
The
objective evidence in this context consisted of the original cheque,
and a copy of the ABSA deposit slip which was discovered
by
Plaintiff. The account opening documentation of the Bihlongwa account
was also discovered, and was referred to by Mr. Ries who
testified on
behalf of Plaintiff. The ABSA statement of Bihlongwa on which the
credit of the amount of the first cheque is reflected,
was also
referred to by Mr. Ries. From these documents it is abundantly clear
that the stamp on the original cheque did not correspond
with the
stamp on the deposit slip. Moreover, on the Plaintiff’s bank
statement reference number appears that correlates
exactly with the
account number of Bihlongwa on the deposit slip. Given the evidence
of normal banking practice by the ABSA teller
who testified, the
probabilities are overwhelming that a cloned cheque was created with
Bihlongwa as payee, but with all the other
information on the cheque
the same as on the original cheque. I agree with this argument and I
do so in the light of the objective
facts that were placed before me
in this context I may just add that Mr. Thomson also testified about
the fact that the present
matter was similar to other frauds that
were reported in the media and Mr. P Louw SC himself “gave
evidence” to the
effect that an amount of some R85 000 000 was
apparently involved in this scam, if I can call it that.
The
cloned cheque was according to the Bihlongwa bank statement, and the
stamp on the deposit slip, deposited at ABSA’s Atteridgeville
branch on 30 April 2007 for the credit of Bihlongwa. ABSA probably
provisionally credited the account of Bihlongwa with the amount
appearing on the forged cheque. I was referred to authorities which
describe the process of collection of cheques in South Africa,
amongst others Volkskas Bank Bpk v Bank Corp Bpk
[1991] ZASCA 57
;
1991 (3) SA 605
A,
and Kwamashu Bakery Limited v Standard Bank of South Africa
1995 (1)
SA 377
(T) at 382 and 384 to 385. Plaintiff’s witness, Mr.
Ries, testified to the collection and paying functions of the bank
and
said that the following events probably took place:
11.11
ABSA forwarded the cloned cheque, as if it were a real cheque, to FNB
for presentment and payment probably through an inter-bank
collection
process;
11.12
before the cloned cheque could reach FNB, it was probably removed
from the cheque collection process and the genuine cheque
was
substituted for it (how else would the original cheque have come into
the procession of Plaintiff?);
11.13
The genuine cheque was physically received by FNB on 30 April 2007
FNB did not return the cheque as unpaid within the prescribed
inter-bank clearance period, and the genuine cheque was consequently,
from FNB’s point of view, ostensively paid.
12.
Although,
as I have said. Plaintiff did not proceed with the claim against ABSA
Bank Limited, Mr. P Louw SC made certain submissions
as to the
liability of ABSA on the mentioned facts. Again, one must have regard
to the probabilities he suggested, and I agree
therewith. The
probabilities were overwhelming that the teller of ABSA who received
a cheque for collection undercover of the deposit
slip did not handle
the original cheque, but a clone that indicated Bihlongwa to be the
payee. The ABSA teller who testified in
court in this context made
this clear inasmuch as the same stamp would be affixed on to the
cheque as that which would be affixed
to the deposit slip when a
deposit for collection is made. One could of course not deny that
ABSA might have had a fraudulent teller,
but the probabilities of the
fraud in this case show that the original cheque probably did not
accompany the deposit slip, a fact
which was proven by the two
different bank stamps. It appears that the cloned cheque was actually
taken in at the Atteridgeville
branch. The bank stamp on the genuine
cheque indicates that it was deposited at Pietersburg. and this bank
stamp must be fraudulent.
Accordingly
Mr P Louw SC submitted that the probabilities were overwhelming that
the teller at the Atteridgeville branch who took
in the deposit slip
together with the cloned cheque did not act negligently. It thus
matters not who would be the true owner of
the cheque i.e. Plaintiff
or SARS, neither of them would have a viable delictual claim against
ABSA. ABSA
simply
did not deal with the lost or stolen first, original cheque. As I
have said, there is no evidence as to what occurred when
the deposit
was made at ABSA bank, but a sensible practical approach in the
context of established banking practice indicates that
on the
probabilities, Mr. P Louw SC’s argument in this context is
sound.
13.
The
Drawee Bank (FNB):
Mr.
P Louw SC proposed to Mr. Thomson that he ought to have taken action
against FNB. Mr. Ries of FNB conceded that the incongruent
dates on
the cheque i.e. dated 25 April 2007, bearing collecting bank stamp of
20 April 2007, presented for payment on 30 April
2007, should have
raised queries.
Mr.
Louw SC accordingly submitted that payment was prima facie negligent
in the face of these irregularities, and referred me to
The Godfather
v CIR
1993 (2) SA 426
(N) at 434 to 435 and Eskom v FNB
[1994] ZASCA 186
;
1995 (2) SA
386
A at 390 to 394 regarding the requirement of negligence. The
topic is also dealt with by Malan and Pretorius, Bills of exchange,
5th edition at par 262. He submitted that if FNB was not entitled to
the protection of s79, then it was not entitled to debit Plaintiff’s
account, and the Plaintiff thus suffered no loss or prejudice. He
said that this issue was of importance in so far as the
impoverishment
requirement of the condictio was concerned. Mr. P Louw
SC’s argument in this context seems to be justified by the
facts but,
as I mentioned to him during argument, I do not intend to
make a finding against a
party
that is not represented before me or a party to these proceedings.
Having
regard to the evidence of Mr. Ries, Mr. P Louw SC’s submissions
in this context seem to have merit however. In recent
years would
markets have asked the question “do bankers have a conscience?”
Mr. Thomson too, could ask this on the
present facts
Payment
in our law:
Having
regard to the objective evidence it was submitted that on the
probabilities ABSA collected payment of one document and FNB
paid
another document. This would not constitute payment in our law.
Payment is a bilateral juristic act which requires the meeting
of two
minds and if the payer (drawee bank) intends to pay cheque or debt A,
whilst the payee (the collecting bank) intends cheque
or debt B to be
paid, there is no meeting of minds and therefore no payment.
See:
Nissan South Africa (Pty) Ltd v Marnitz NO
2005 (1) SA 441
(SCA) par
24 to 27
In
McCarthy Limited v ABSA Bank Limited
2010 (2) SA 321
(SCA) par 20,
it
was held that the collection and payment functions of a cheque are
the two sides of the same coin. There cannot be payment unless
there
is collection. There can thus only be one document that is collected
and paid. There can therefore not be consensus where
one bank
(branch) thinks that it pays one document, and the other thinks it
receives payment on another. Put differently: when
a bank pays a
cheque, as paying or drawee bank, it pays a cheque that is being
collected by the collecting bank But, where the
collecting bank has
one document on which it seeks to collect payment, whilst the paying
bank has another document which it purports
to pay, there are two
documents (as in this case, a fraudulent document and a genuine
cheque) and the collection function concerns
the one and the payment
function the other and therefore what is paid” is not what is
’’collected ”. Section
79 of the Act is to the same
effect The Act does not seem to contemplate a situation where a
cheque cloned so that there are two
documents in the given context.
I
was referred a decision of this court which “obliquely”
deals with the same issue, namely Trans-Atlantic Equipment
(Pty) Ltd
v Minister of Transport 2002 (2) SA167 (T). It is clear from this
decision that it supports the argument of Mr. P Louw
SC that payment
is a bilateral juristic act, and that this is an important
consideration when one deals, as in the present context,
with forged
cheques or the cloning’’ of certain details. (Mr. Ford SC
told me that he did not know what a “cloned
cheque” was,
but it seems that the word “cloning" made its appearance
in this decision in the context of facts
similar to those under
discussion). Mr Louw SC’s conclusion on this topic was
therefore that there was no payment in due
course of the genuine
cheque (see s1 of the Bill of Exchange Act), which meant that the tax
debt owing by Plaintiff to First Defendant
had not been discharged.
He also added that FNB did not pay the instrument collected by ABSA
and as a result the precondition for
FNB to debit the account of
Plaintiff with the amount of the cheque was absent. FNB could thus
not lawfully have debited Plaintiff’s
account. A bank could in
any event not unilaterally shift the risk of forgery to its
customers, and in the absence of an agreement
between the bank and
its customer relating to the risk in the case of a fraud cheque, the
drawee bank would continue to bear the
risk.
See
Big Dutchmen SA (Pty) Ltd v Barclays National Bank Limited
1979 (3)
SA 627
(W) at 283 to 285.
In
this context Mr. Thomson testified that he had no special agreement
with the bank but merely the usual one that a customer would
sign.
14.
It
was against all of that some what detailed background that the
elements of the condictio mdebiti must be considered.
Impoverishment:
Having
regard to Plaintiffs own evidence by way of Mr. Ries, who commented
on the clearly visible discrepancies of the dates on
the original
cheque, he argued that FNB should on the 30th of April have refused
to pay the cheque and should have sent it back
to ABSA so that it
could be referred to drawer. This witness opened the door to a
finding of negligence on behalf of FNB, and Plaintiff
singularly
failed to provide any evidence to the effect that FNB was not
negligent Impoverishment had therefore not been established
on the
facts.
15.
Enrichment:
It
is common cause that First Defendant did not receive payment of the
first cheque. As I have pointed out, it was affectively Plaintiff’s
case that because of the rules concerning the discharge of cheques,
the VAT was paid. This is
an
erroneous approach, and I agree with Plaintiff’s counsel that
the rules concerning discharge of cheques do not constitute
deeming
provisions for enrichment purposes. Were it otherwise, it would be an
improper translation from one norm and law complex
to another, whilst
there is no obvious necessity therefore. Plaintiff had to prove that
First Defendant was enriched by the first
cheque. This, it could only
do, if it could show that First Defendant had a good and viable claim
in its state against ABSA which
is worth the same as the actual money
in its estate. Reference in this context was made to the so called
saldo teorie' that is
often used to determine enrichment.
See:
Eiselen and Pienaar supra at p62 and Visser supra at p105 and p717 It
was therefore argued that Plaintiff could not in light
of the
incongruities on, and between the deposit slip and the cheque prove
this requirement. It is for Plaintiff to prove that
SARS had received
either payment of the first cheque or that it had in its estate an
undefeatable claim against ABSA which had
the same value as the
original cheque. This is a factum probandum of Plaintiff’s
cause of action.
Sine
Causa:
This
issue can be approached from the perspective of the cause for paying,
the cause for receipt or both SARS clearly had a reason
to retain
payment of the second cheque; if it were to let it go it would
violate its statutory obligation to collect VAT. Plaintiff
also
clearly had a reason to make the second payment. It simply had to pay
the VAT that it had collected. It was never suggested
that the
position was otherwise, and obviously so. Plaintiff collected the VAT
on behalf of First Defendant. The second payment
was therefore not
sine causa I have already mentioned that Mr. Thomson testified that
he made the "second payment” because
he did not wish to
incur penalties, and also because he required a tax clearance
certificate for purposes of his business There
was thus no duress
exerted on him. The law required that all tax payers pay their taxes
and that all taxpayers pay over the VAT
collected to SARS if they are
registered for that purpose. Mr. Thomson certainly did not make the
second payment in error where
it was not due as a matter of fact and
law. He made the payment as a deliberate act taken for sound business
reasons and because
of the law, and he did so without any duress
There are other provisions in the VAT act whereby decisions of First
Defendant could
be objected to, and steps taken in any given context.
It is not necessary to debate this topic, which was apparently not
considered
by Plaintiff.
16.
The
result is that Plaintiff has not proven the requirements for the
condictio indebiti. He was obliged to pay the VAT collected
by
him,First Defendant did not receive the amount by way of the first
cheque of which he had become the owner. Having regard to
Mr Ford’s
approach to the alternative claim, and First Defendants concession
that it became the owner of the first cheque
the alternative claim
does not arise for adjudication. There was in any event no evidence
that would support it.
In
the result Plaintiff’s claim is dismissed with costs including
the costs of two counsel.
JUDGE H J FABRICIUS
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Case
number : 1681/08
Counsel
for the Plaintiff:Adv E. Ford SC
Instructed
by: Friedland Hart Solomon & Nicolson.
Pretoria
Counsel
for the First Defendant: Adv. P Louw SC
Adv.
A. South Instructed by: Adams & Adams
Pretoria
Heard
on: 20-22 February 2013
Date
of Judgment: 6 March 2013