Cape Finance Corporation Ltd v Bezer's Trailers & Body Craft CC (2) (Application for leave to appeal) (4 of 1999) [2000] NAHC 18 (25 May 2000)

CAPE FINANCE CORPORATION LTD vs BEZER'S TRAILERS & BODY CRAFT CC (P) PS 4 / 99 LEVY, AJ 2 0 0 0 / 0 5 / 25 PRACTICE: APPLICATION FOR LEAVE TO APPEAL SUMMARY JUDGMENT - A p e r s on who knowingly accepts a p o s t d a t ed c h e q ue for value prior to m a t u r i ty t a k es t he c h e q ue subject to equities. Leave to appeal granted by r e a s on of varying j u d g m e n ts on the subject a nd a n o t h er Court could reasonably a d o pt 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