Court name
High Court of eSwatini
Case number
243 of 1997

Swaziland Fluid Precision v First National Bank of Swaziland (243 of 1997) [2003] SZHC 100 (29 October 2003);

Law report citations
Media neutral citation
[2003] SZHC 100
Coram
Matsebula, J









HIGH
COURT OF SWAZILAND


CASE
NO.243/97


In
the matter between:


SWAZILAND
FLUID PRECISION PLAINTIFF


AND


FIRST
NATIONAL BANK OF SWAZILAND DEFENDANT


CORAM MATSEBULA
J


FOR
THE PLAINTIFF MR. MDLADLA


FOR
THE DEFENDANT ADV. FLYNN


JUDGMENT


29th
OCTOBER 2003


The
plaintiff issued summons against the defendant for the following
relief:


1. Payment
of a sum of E176,000.00;


2. Interest
thereon at the rate of 9% a tempore morae;


3. Costs
of suit;


4. Further
and/or alternative relief.


The
cause of action arises out of the making of a cheque made payable to
the plaintiff in the amount of E176,000.00. The cheque was duly
banked with the defendant. The cheque was in respect of certain parts
of some machinery as per quotation annexure "D" which
reflects the total amount as being E192,096.00 less 8% bringing it to
E176,728.00. It would seem the total amount, as reflected in annexure
"D" is incorrect. However, that is the figure reflected by
the officer of the plaintiff. The


2


court
will deal with this figure further in my judgment. For the present, I
should mention that this figure was to be reduced further per
telephone conversation between the Managing Director of plaintiff and
the maker of the cheque whose name is Koos van Vryk according to
annexure "D". The figure was reduced to E176,000.00.


According
to Bheki Gamedze he had not consented to the said Koos van Vryk to
effect the payment by a cheque. In his absence Mr. van Vryk came and
left the cheque in the amount of E176,000.00 instead of the amount
reflected on annexure "D". Confronted with this anomaly Mr.
Gamedze told this court that it did not matter that Koos paid a
lesser amount than the amount reflected in the quotation. This
arrangement was reached between the parties per telephone.


After
the cheque had been deposited and according to Mr. Gamedze he had
been informed that the cheque had been cleared, he allowed the man
Koos to collect the items as per quotation. That was the last that he
heard or seen Mr. Koos. Mr. Koos disappeared into thin air to this
date. So too the cheque. In regard to the cheque it subsequently
emerged that the leaf of this cheque came from a stolen cheque book
in the Republic of South Africa. There are other strange behaviour on
the part of Mr. Bhekie Gamedze the plaintiff's representative. Mr.
Gamedze failed to explain the clear discrepancy in dates appearing on
the cheque, "A" i.e. 6th December 1996 and "D"
the quotation issued to Koos van Vryk dated 17th December 1996. In
other words the cheque was deposited before the quotation was made.
The question is how the maker of the cheque would have known about
the figure of E 176,728.00 appearing on "D" if the cheque
was banked on 6th December 1996. This is apart from the discrepancies
in figures as well. The invoice at page 18 also differ from the
quotation at page 19.

Mr.
Gamedze first went to the bank on 4th January 1997 and on 6th January
1997 he was told that the money had been paid out over the counter.


Mr.
Gamedze does not have the original invoice made out to Mr. Koos van
Vryk. He does not have a delivery note. No proof that goods were
infact delivered. It is plaintiff who bears the onus on a balance of
preponderance. The question is, has the plaintiff discharged this
onus?


3


Mr.
Mdladla argued that the plaintiff suffered damage when he was
informed that he cheque had been cleared. It was on the strength of
this information that he dispatched the goods. The clearance referred
to is the one on the print-out. Presenting the print out to a lay
client by the defendant constituted negligence on defendant's part,
so argued Mr. Mdladla.


This
Court was not favourably impressed by the manner Mr. Gamedze went
about enquiring about what exactly happened to the cheque banked by
Koos. The court gained the impression that Mr. Gamedze was not very
anxious in finding out about the cheque "A". He left
everything to his erstwhile attorneys after he had failed to see the
bank officer Mr. Cornelius Dlamini.


The
evidence of Mr. Wright of what the print out means is to me very
credible. There can be no reason why I should not accept it.


From
what Mr. Mdladla said, if I understood his argument correctly is that
defendant is liable and its liability based on its negligence in that
plaintiff's representative Mr. Gamedze would have been told that the
cheque had been cleared. It was on the basis of this information that
he released the goods to Koos. It subsequently turned out that infact
the cheque had not been cleared.


According
to Mr. Gamedze he was also furnished with a print out which also
indicated that the cheque had been credited. Mr. Gamedze's evidence
on this point centres around very shaky and unsteady grounds. Shaky
and unsteady because defendant has explained the true position of the
print out and Mr. Gamedze was unable to bring a witness to support
what he alleges was passed on by the bank junior officials to him.
That in my view is the negligence on which Mr. Gamedze relies.


As
I have indicated earlier in my judgment the behaviour and attitude of
Mr. Gamedze from day one of the transaction is not that of a
businessman dealing with a purchase of above half a million worth of
goods.


4


I
can find no basis for a finding that defendant was vicariously
liable. It is not denied that the cheque book from which the cheque
was made out was stolen. I am not prepared to speculate how Koos
obtained the stolen cheque. The defendant has denied that Cornelius
Dlamini would have told Gamedze that the cheque had been cleared.
Even though the defendant was unable to call Mr. Dlamini, in the
final analysis, it cannot be said the bank was in anyway negligent.
In the result, I find that the plaintiff has not succeeded in
discharging the onus that rests on it. It follows the action is
dismissed with costs, costs to include those of counsel.


J.M.
MATSEBULA


Judge