C of A (CIV) No.
9/2005

IN
THE COURT OF APPEAL OF LESOTHO

In
the matter between:

STANDARD
BANK LESOTHO LIMITED APPELLANT

and

TROPICAL
INFO. TECH. SOLUTIONS

(PTY)
LIMITED RESPONDENT

Held
at Maseru.

CORAM:

Steyn,
P

Smalberger,
JA

Kumleben,
JA

JUDGMENT

Summary

Appellant
paid a sum of M40,000 from the respondent’s bank account. The
presented cash cheque on the face of it bore the signatures
of two
directors of respondent. It was alleged that one was a forgery. On
appeal it was held that, whether or not fraud was proved,
the
signature of the alleged forger was unauthorized in the light of an
interdict protesting payment of a cheque signed by the alleged
forger. The order of the High Court granting a refund confirmed.

Kumleben JA

In the High Court the
respondent (the “Company”,) applied for relief against the
appellant (the “Bank”) as a matter of urgency
by way of motion
proceedings. The substantive order sought was for payment of M40,000
from the Bank. It had notice of the application
and lodged on
answering affidavit in response to the averments in the founding
affidavit. No replying affidavit was forthcoming.
The matter was
argued before Majara A.J., who ordered the refund of an amount of
M40,000 “fraudulently withdrawn from applicant’s
[the Company’s]
account No. 0140098060301.”

The grounds of appeal
against this decision are rather prolix. They raised a number of
preliminary and procedural objections inter alia that there
are disputes of fact that cannot be resolved in motion proceedings
and that on this account the matter should be referred
to trial
action or that the application be dismissed. These submissions were,
however, not pursued before us. In any event, if
on appeal the
cardinal issue on the merits can be decided upon facts in respect of
which there is no dispute, it is in the interests
of the parties and
the cause of justice to do so. The facts that are relevant are the
following:

(i) As at 7 August 2003,
according to a minute of the Company, Mr. Lebohang Sepepane
(described as a “representative” of the Company)
and two of its
directors, namely Mr. Thabiso Thakaso (“T”), who deposed to the
founding affidavit, and Mr. J. Makhalanyane (“M”)
had signing
powers in respect of the Company account with the Bank. Any two of
them were authorized to co-sign a cheque drawn on
the Bank.

(ii) Apparently
Sepepane did not remain in good standing with the Company for, on 28
June 2004 the Company obtained an interdict from
the magistrate’s
court at Maseru in these terms:

“1. That Respondent [Sepepane]
should release to the applicant [the Company] all company documents
in his possession, including the
trading licence.

2. That
Respondent [Sepepane] should stop carrying on business in the name of
the applicant [the Company] and/or using the applicant’s
[the
Company’s] logo.”

(iii) On 15 September
2004 Sepepane presented for payment a Company cheque for M40,000
bearing on the face of it the signatures of
“T” and Sepepane as
drawers. These signatures appear under the imprint on the cheque
“TROPICAL INFO TECH SOLUTIONS.” It
was a cash cheque and the sum
of M40,000 was paid to Sepepane.

The contention of “T”,
as stated in his founding affidavit, is that his signature on this
cheque was forged by Sepepane. It
was on this footing that the case
was argued in the High Court and before us on appeal. The sequence
of events in this regard, were
these: On 15 September 2004 the
cheque was cashed. On 22 September 2004 the Managing Director of the
Company wrote to the Bank
alleging that one of its ex-employees had
fraudulently cashed the cheque. The Bank’s reply by letter dated
22 September 2004,
did not admit or deny the fraud. It said the
matter was still under investigation and, when finalized, the Company
would be told
of the outcome. Such finality either way was not
reached when the answering affidavit was sworn to sometime in October
(its date
is omitted and the date stamp is not sufficiently legible).
In this affidavit it is again said that the matter “is presently
being
investigated by the Police”. In the judgment the learned
judge is correct in concluding on these facts that the Bank is
“saying
‘I am still in the process of verifying your allegation’
which means ‘I am in no position to either deny or admit it’”
but is plainly wrong in concluding that this amounts to an admission
of the forgery. The reply simply cannot be thus interpreted.
Having
said this, I find it unnecessary to consider whether on a full
conspectus of all the evidence the forgery was established
on the
papers. I prefer to decide the matter on the supposition – some
might say a charitable one – that the forgery alleged
by the
Company has not been admitted by the Bank and that this question
remains in issue.

I
return to the Magistrate’s Order and particularly the second
paragraph that interdicts Sepepane from “carrying on business
in
the name of the Company”. The general manager of the Bank in the
answering affidavit has this to say, after acknowledging that
the
Bank had received the order:

“The
contents of the Court Order are admitted. The Respondent points out
that the interdict order does not stop Sepepane from signing
any
documentation on behalf of or as an authorize director of the
Company. There is no allegation by the Applicant that Sepepane’s
signing powers to cheques and other Company documents were ever
stopped.” (Emphasis added).

This proposition is
untenable. For what reason, one may ask, would the Company inform
the Bank of this court order if it were not
to ensure that Sepepane
would not be permitted to operate on the Company account with the
Bank? The cheque, with the inscription
of the Company on it, was on
the face of it clearly being cashed for business purposes and as
plainly falls within the proscription
in the court’s order.

Mr. Buys, who appeared
for the appellant, in due course during his argument quite correctly
conceded that this was the import of
the interdict. He, however,
submitted that it was not satisfactorily proved that the order was
received by the Bank before the cheque was presented and paid.
There is no substance in this submission. Had that been the case
the general manager of the
bank in the answering affidavit would
never have sought to avoid the effect of the order by contesting that
its terms did not apply
to the payment of a cheque presented
by Sepepane. His obvious reply would have been that the Bank was not
bound by its terms because it was only after such payment that
the injunction was brought to its notice.

It was accepted without
debate that the unauthorized payment of the cheque entitled the
Company to the refund Cf TEDCO MANAGEMENT
SERVICES (PVT) v GRAIN
MARKETING BOARD (1997 (1) SA 196 (ZSC) at 202).

In the result the Bank
on account of its unauthorized payment is liable to refund the
M40,000 to the Company as ordered by the High
Court.

The appeal is dismissed
with costs.

____________________

M.E.
KUMLEBEN

JUDGE
OF APPEAL

I agree:
_______________

J.H. STEYN

PRESIDENT
OF THE COURT OF APPEAL

I agree:
_________________

J.W. SMALBERGER

JUDGE
OF APPEAL

DELIVERED ON THIS THE
20^TH DAY OF OCTOBER, 2005

For
Appellant : Mr. S.C. Buys

For
Respondent : Mr. T. Matooane