|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South Africa: Supreme Court of Appeal |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
EMERGENCY TRUCK AND CAR HIRE
JAGATHESAN JOHN CHETTY
and
THE STANDARD BANK OF SOUTH AFRICA LIMITED
SMALBERGER, JA :-
521/82
N v H
521/82 N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION) In the matter between:
EMERGENCY TRUCK AND CAR HIRE First Appellant
JAGATHESAN JOHN CHETTY Second Appellant
and
THE STANDARD BANK OF SOUTH AFRICA
LIMITED Respondent
CORAM: JOUBERT, SMALBERGER, JJA,
et BOSHOFF, AJA
HEARD: 16 MAY 1986
DELIVERED: 26 MAY 1986
JUDGMENT
SMALBERGER, JA :-
The respondent (as plaintiff) successfully
sued the appellants (as defendants) in the Natal Provincial
Division /
2
Division for payment of the sum of R5 921-00, plus costs
The appellants now appeal to this Court against the judgment
of the trial judge (KUMLEBEN, J).
The present appeal concerns a question of agency,
The only issue on appeal is whether the second appellant's
son, D K Chetty, in purchasing apples from a certain
C J Johnston, acted as the second appellant's agent, and
with his authority. There were certain other issues that
fell to be decided in the court a quo, but these were
decided in favour of the appellants. The respondent
initially cross-appealed in respect of one of these issues,
but subsequently abandoned its cross-appeal.
The following facts are either common cause or
not in dispute. The second appellant is the sole proprietor
of the /.......
3
of the first appellant. As such they may be regarded as
a single legal entity. The first appellant, despite its
name, is engaged in the fruit trade. It operates a
current banking account with the respondent at one of the
latter's Pietermaritzburg branches. The cheque forms
issued in respect of this account bear the printed name of
the first appellant as drawer. The second appellant
and his wife, Mrs S Chetty, were authorised to sign cheques
drawn on the first appellant's account. The account was
operated upon regularly. The second appellant's son,
D K Chetty, was the sole proprietor of a business known as
"The King of Fruit and Vegetables". This business con=
ducted a current banking account with the same branch of the
respondent as the first appellant. D K Chetty died on
31 December /......
4
31 December 1980 in insolvent circumstances.
The main witness for the respondent was
Mr C J Johnston, an apple farmer in the Uniondale district
He testified that he first met D K Chetty at the commence=
ment of the 1977 apple season when D K Chetty came to his
farm to purchase apples. From then until 1979 D K Chetty
was a fairly regular visitor to his farm to make apple
purchases. At times he purported to purchase apples on
behalf of the second appellant; at other times he purchased
them om his own behalf. The initial purchases were paid for
in cash. Subsequently the purchases made on behalf of the
second appellant were paid for by means of cheques
bearing the name of the first appellant and signed by the
second appellent (or his wife). D K Chetty paid for his
own /.......
5
own purchases with different cheques signed by him personally. Certain
of D K Chetty's visits were preceded by telephone calls from
someone who
identified himself as "J J Chetty" enquiring as to the availability of apples.
Johnston was unable positively to identify
the person who so called as the
second appellant. The truck in which D K Chetty travelled, and in which the
fruit purchased was loaded,
had the name of the first appellant painted on it.
On the back of the truck there was an advertise= ment for "The King of Fruit and
Vegetables". In his
records, in respect of purchases made by D K Chetty,
Johnston reflected the name of the purchaser on each occasion as either "J J
Chetty" or "D K Chetty" depending upon whether payment was tendered by D K
Chetty personally
or on behalf of the second appellant. Johnston's
invariable
practice /
6
practice was to regard the person who paid for the fruit
purchased, or on whose behalf payment was made, as the
purchaser thereof. On this basis, according to Johnston,
most of the purchases made by D K Chetty during 1977 were
made on behalf of the second appellant. In 1978, with one
exception, all the purchases were made by D K Chetty per=
sonally.
I come now to Johnston's evidence concerning
the transactions giving rise to the amount in dispute.
He testified that D K Chetty purchased apples on 31 January
1979 to the value of R3 143-00; on 9 February 1979 to the
value of R544-00; and on 13 February 1979 to the value
of R2 234-00, i.e., for an amount of R5 921-00 in all.
The three purchases were reflected in a single invoice,
No 34 /........
7
No 34, and paid for by D K Chetty on 13 February 1979 by
means of a signed cheque bearing the printed name of the
first appellant as well as the name "J J Chetty" - a cheque
apparently similar in appearance to those tendered previously
in respect of purchases purportedly made on behalf of the
second appellant. It appears from Johnston's evidence under
cross-examination, however, that when acquiring the apples
for R3 143-00 on 31 January 1979 (which were not paid for at
the time) D K Chetty indicated that he would be purchasing
them for his own account. Johnston duly made out an
invoice to D K Chetty reflecting the transaction. However,
when D K Chetty eventually paid for all three purchases on
13 February 1979 he indicated that they were all to be for
the account of the second appellant. This resulted in the
effective /.......
8
effective cancellation of the previous invoice. It is
common cause that D K Chetty took delivery of the apples
purchased on the aforementioned three dates. In due
course Johnston took the cheque which had been tendered
to him as payment to the respondents Uniondale branch
and deposited it there for collection.
The evidence establishes that the cheque was
subsequently lost and therefore never presented for payment
Consequently Johnston never received payment for the apples
sold by him to D K Chetty in the circumstances outlined
above. Johnston eventually ceded his rights for the
recovery of the purchase price of the apples so sold to
the respondent, hence the respondents' claim.
The only /......
9
The only other witness whose evidence needs
specific mention is Mr V C Edwards, the manager of the
respondent's Pietermaritzburg branch at which the first
appellant has its account. He testified to a discussion
he had with the second appellant in connection with the
lost cheque. The second appellant told him that it was
the usual practice "to issue out cheques signed in blank
to enable them to make their purchases down in the Cape,
usually signed by his wife". In the context of the
discussion the cheques in question were cheques drawn on
the first appellant's account. He was also told that "(t)hey
had a son or sons who were drivers of their motor vehicles
and these sons used to go down to the Cape or wherever it was
to buy their produce and tender those cheques in payment of
that /........
10
that produce, they were filled in at that stage, at the
time of sale, for the exact amount". It is apparent
from this evidence, and indeed it is not in dispute, that
the second appellant provided D K Chetty with signed,
blank cheques drawn on the first appellant's account for
the purpose of purchasing and paying for fruit acquired
in the Cape. According to Edwards the second appellant
refused to provide a duplicate cheque to replace the missing
one.- He denied liability in respect of the cheque, his
attitude being "produce the evidence and I am prepared to pay"
Significantly, the second appellant at no stage specifically
denied that D K Chetty had authority to act on his behalf.
No evidence was led on behalf of the appellants
although the second appellant was present at court and
available to give enfluence The /......
11
The question arises whether, on the evidence,
the respondent established, on the requisite balance of
probabilities, that D K Chetty purchased the apples
reflected on invoice no 3 4 on behalf of the second appellant,
and that he had the necessary authority to do so. Counsel
for the appellants found himself unable to contend that this
had not been established in respect of the purchases made
on 9 and 13 February 1979 for an amount of R2 778-00
This is hardly surprising if one takes cognizance of the
undisputed evidence - the relationship of father and son
between the second appellant and D K Chetty which facilitates
an inference of agency in a case such as the present; the
telephone enquiries made by someone calling himself J J Chetty
followed some time later by the arrival of D K Chetty driving
a truck /........
12
a truck bearing the first appellant's name; the fact
that the first appellant's cheques, tendered in respect
of previous purchases which D K Chetty purported to make
on behalf of the second appellant, were met without demur;
the modus operandi that evolved over a period of time
whereby D K Chetty personally paid for his own purchases
and tendered first appellant's cheques in respect of
purchases claimed to be on behalf of the second appellant;
and the fact that D K Chetty was authorised to purchase
fruit on the second appellant's behalf and had been
furnished with blank, signed cheques drawn on the first
appellant for the payment of such purchases. As the facts
relating to D K Chetty's agency and authority (or lack of
it) were peculiarly within the second appellant's knowledge,
less /.......
13
less evidence would be required to establish a prima facie
case than would otherwise be necessary. But this apart.
the considerations I have mentioned established a strong
prima facie case which the second appellant did not, and
probably could not, meet, leaving the inevitable conclusion
that D K Chetty acted as the second appellant's agent and
was duly authorised to make the purchases in question.
The appellants' counsel, however, sought to
distinguish the purchase made on 31 January 1979 from the
other two purchases. His submission amounted to the
following: the apples purchased on 31 January 1979 were
purchased by D K Chetty personally; the transaction was
complete on that date; and the respondent failed to prove
that the cheque drawn on the first appellant which was
tendered /......
14
tendered as payment for this purchase was for the discharge
of a debt of the second appellant rather than D K Chetty's
own personal debt. Put another way, it was contended that
the sale on 31 January 1979 was one between Johnston and
D K Chetty personally, and one in respect of which no
indebtedness arose on the part of the second appellant
towards the respondent. It is of course trite law that
one person can discharge the debt of another. But counsel's
submission runs counter to the facts. If one has regard to
Johnston's evidence it is clear that D K Chetty always paid
for his own purchases with his own cheque, and for purchases
on behalf of the second appellant with a cheque drawn on the
first appellant's account. While D K Chetty initially
stated that the apples purchased on 31 January 1979 were
being /.......
15
being purchased on his own behalf, when the time came for payment he
indicated that they were to be paid for by the second appellant.
In this lies
the clear implication, in the light of his previous dealings with Johnston, that
the second appellant was meant to be,
or to become, the purchaser of the apples.
Johnston accepted that this was to be so. Whether one regards this as an agreed
rectifica=
tion of the previous agreement or an agreed substitution (delegation)
of the second appellant as purchaser in the place of D K Chetty
is of no
consequence. In either instance D K Chetty's authority to bind the second
appellant, if it existed, would prima facie have permitted such rectifi=
cation or substitution. If he did not have such authority one
would have
expected the second appellant to deny its existence
under /
16
under oath. This he failed to do, rendering it more
probable than not that the necessary authority existed
In this regard it is not without significance that it was
never specifically pleaded that the sale on 31 January 1979
was, and remained, one to D K Chetty personally, nor did the
second appellant ever suggest this to be the case to
Edwards. It follows that the submission made is without
merit, and the appeal cannot succeed.
The appeal is dismissed, with costs. The cross-
appeal is dismissed, with costs, if any
J W SMALBERGER JUDGE OF APPEAL
JOUBERT, JA) CONCUR BOSHOFF, AJA) CONCUR
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/cases/ZASCA/1986/62.html
.PDF of original document
.RTF of original document