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

2

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M40.000 "fraudulently withdrawn from applicant's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

3

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

4

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

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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.

6

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.

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The
appeal is dismissed with costs.

M.E.
KUMLEBEN

JUDGE OF
APPEAL

I agree:

JH STEYN

PRESIDENT
OF THE COURT OF APPEAL

I agree:

J.W.
SMALBERGER

JUDGE OF
APPEAL

DELIVERED
ON THIS THE 20TH DAY OF OCTOBER, 2005

For
Appellant : Mr. S.C. Buys

For
Respondent : Mr. T. Matooane