Lesotho Milling Co. v Tlelai (CIV/T 83 of 80) [1980] LSHC 22 (31 March 1980)

C I V / T / 8 3 / 80 IN THE HIGH COURT OP LESOTHO In the Matter o f: LESOTHO MILLING Co. Plaintiff v PALEO TLELAI Defendant J U D G M E NT Delivered by the Hon. Judge Mr. Justice M. P. Mofokeng on the 31st day of March, 1980, In t h is action plaintiff claims provisional sentence on a cheque. In the summons it is alleged that the cheque was duly presented by plaintiff at the bank but the cheque was dishonoured by non-payment and was marked "uncleared effects". Notice of dishonour is dispensed with. Plaintiff is the lawful holder of the said cheque which said cheque has been handed into Court as Exhibit "A". Both the Provisional Sentence Summons and a subsequent Notice of Setdown have been personally served upon the defendant. The defendant has neither personally or through an attorney acting for him signed and filed with the Registrar an acknowledgement of the said claim, nor filed any affidavit. It is the duty of a banker to honour his customer's cheques when the account is in credit or other arrangements have been made. Once, however, the banker refuses, whether justifiably or not, to pay a customer's cheque on presentment and in whatever language that refusal is couched and with what- ever intimation as to the probable state of the customer's account at a future date, such as "Effects not Cleared", that / is a . . . . . .. -2- is a DTSHONOUR. Similarly, a request to re-present such a cheque amounts to a DISHONOUR, (See Cowen & Gering: The Law of Negotiable Instruments in South Africa, 4th Ed. p. 369). Unless, therefore, special arrangements are made with the banker, I with respect agree with the learned authors of the work just quoted above that " it would seem that the mere crediting of the cheques for collection as cash does not, of itself, entitle the customer to draw against such cheques before clearance", (See Cowen & Gering (supra) p. 373) With respect, t h is seems to me to be precisely what happened in the instant action before me. ( see who R v Bester, 1961(2) SA 52(Fc) at pp 55-) Provisional Sentence i s, therefore, grantod as prayed with costs. 31st day of March, 1980, Plaintiff's Attorneys : S,C. Harley & Co.