(P) PS 4/99
CAPE FINANCE CORPORATION LTD vs BEZER'S TRAILERS & BODY CRAFT CC
LEVY, AJ 2000/05/25
PRACTICE: APPLICATION FOR LEAVE TO APPEAL
SUMMARY JUDGMENT - A person who knowingly accepts a postdated cheque for value prior to maturity takes the cheque subject to equities.
Leave to appeal granted by reason of varying judgments on the subject and another Court could reasonably adopt a different view.
CASE NO. (P) PS 4/99
IN THE HIGH COURT OF NAMIBIA
In the matter between:
CAPE FINANCE CORPORATION LTD APPLICANT
versus
BEZER'S TRAILERS & BODY CRAFT CC RESPONDENT
CORAM: LEVY,
A.J.Heard on: 2000.05.25
Delivered on: 2000.05.25
JUDGMENT
LEVY, A.J.: This is an application for leave to appeal against the judgment
delivered by this Court on 7 March 2000. Mr Coetzee appears for Applicant. There was no appearance for Respondent.
Prior to the 30 June 1999 the document which is described herein as a postdated cheque was not a cheque. The Plaintiff therefore was not an "endorcee" when it came into possession thereof. There were no rights which be could get as endorcee whether he gave value therefore or not. If anything he took the "cheque" subject to equities.
When a post-dated cheque falls due, it most certainly becomes a cheque and as such the payee can present if for payment on due date or thereafter. Inasmuch as plaintiff was not the payee, the plaintiff could not present it for payment.
When Plaintiff came into possession it knew full well that the "cheque" was post-dated and therefore the question of equities comes into operation.
The authorities quoted by Mr Coetzee, do not deal with this point as I have set out above.
Authorities from foreign countries depend upon the legislation in those countries.
The only academic writers in South Africa, do not consider whether a document which will on some due date in the future become a cheque can be "endorsed" before due date and whether the "endorcee" then acquires the rights which an endorsee of a cheque would have acquired. If the endorcee in those circumstances does do so, this appears to be contrary to the provisions of the statute defining a cheque.
The aforesaid notwithstanding in view of the confusion which exists, a pronouncement on the subject by the Appellate Division is desirable and that Court may reasonably come to a different conclusion to that which I have come to.
Leave to appeal is therefore granted, costs of this application to stand over for decision by that Court.
ON BEHALF OF APPLICANT Instructed by:
ADV COETZEE P F Koep & Company