Sibanda v Communications & Allied Industries Pension Fund (HC 7034 of 2014; HH 83 of 2017) [2017] ZWHHC 83 (8 February 2017)

1 HH 83-17 HC 7034/14 MICHAEL SIBANDA versus COMMUNICATIONS & ALLIED INDUSTRIES PENSION FUND HIGH COURT OF ZIMBABWE MATANDA-MOYO J HARARE, 29 January 2017 & 8 February 2017 Civil Trial A. M Mhaka, for the plaintiff D. Ochieng, for the defendant MATANDA MOYO J: The plaintiff issued summons against the defendant for the following relief: (a) an order directing that the defendant pay to the plaintiff a pension in terms of the pensions contract signed between the plaintiff and the defendant alternatively in terms of the group pension agreement entered into between the defendant and the plaintiff’s former employer (b) an order directing that the defendant pay the plaintiff the pension sum assessed by the court to be due and payable. (c) an order directing that the defendant pay interest on the pension payments in arrears from the time such payments fell due to the time of payment. (d) that the defendant pay costs of suit. The defendant pleaded that it owed nothing to the plaintiff. At the pre-trial conference the parties agreed that there are no disputes of facts in relation to this matter and agreed to proceed by way of a stated case. The parties agreed that the facts are as follows; the defendant is a pension fund registered in terms of the Pensions and Provident Funds Act [Chapter 24:09]. The plaintiff is a member of the fund having been employed by Tel One (Pvt) Ltd. On 3 January 2000, the defendant received instructions from Tel One to pay a refund of pensions contributions to the plaintiff on the basis that the plaintiff had been dismissed from employment with effect from HH 83-17 HC 7034/14 April 1999. The plaintiff had been discharged following an industrial action of which he was subsequently reinstated in January 2000. The plaintiff upon reinstatement paid a bridging lump sum premium to the fund. The resultant situation was that there had been no break in the plaintiff’s contributions. The defendant proceeded, after receiving instructions from Tel One, to pay out pension refunds to the plaintiff by way of a crossed cheque in favour of the plaintiff drawn on the defendant’s bank Barclays and sent by post to 6925 Pelandaba, Bulawayo. The cheque was presented at a Zimbank Branch in Bulawayo on 2 May 2000 and paid out. The plaintiff denied ever seeing the cheque. The plaintiff stated that at the time he resided in Harare. The plaintiff insisted he had never been a client of ZB Bank. Later the defendant received communication from Tel One that the plaintiff had been reinstated without loss of salary and benefits. The letter read as follows: “RE-EMPLOMENT OF DISMISSED TECHNICIAN This serves to advise that Mr/Mrs/Ms Sibanda M EC No. 181676C has been re-employed as a technician/engineer with effect from 17 January 2000. Please note that the conditions of his/her re-employment, which he/she accepted are as follows: He/she be responsible for pension bridging by paying through salary deductions both his/her contribution as well as the employer pension contribution for the period between his/her dismissal and re-employment. ………. Could you please effect this re-employment ensuring the conditions listed above are complimented. T. Chiweshe Manager Employee Service.” Such communication was received by the defendant on 1 February 2000. It is common cause the above communication makes no mention of the earlier instruction to pay out pension contributions. It does not specifically cancel that instruction. It only talks of pension bridging so that there is no period when pension is not payable. The defendant can therefore not be penalised for failure to stop carrying out the initial instruction. From the papers filed the earlier instruction to pay out was confirmed for processing on 4 January 2000, although payment was authorised on 13 April 2000. The plaintiff’s argument that by HH 83-17 HC 7034/14 processing payment the defendant was acting on a frolic of his own does not therefore hold water. The defendant accepted a payment from the plaintiff for such abridgement. In 2013 the defendant received instructions from Tel One to pay out the plaintiff’s pension on the basis that his contract of employment had been terminated on medical grounds. The defendant processed pension and paid out the sum of US$43 210, commuted lump sum. Such pension was commuted from 1 May 1999. The plaintiff had been receiving a monthly pension of US$561,00. The plaintiff has sued for the period 1 May 1999 dating back to 1989. The issues to be determined by the court are; 1) Whether there is still any pension due to the plaintiff? 2) If so who is liable for the loss on the cheque of Z$29 435,64? The plaintiff submitted that he was reinstated in January 2000 without loss of salary and benefits. The cheque was only paid out in April 2000 well after the plaintiff had been reinstated and was at work. He was not in Bulawayo when the cheque was sent there. The plaintiff argued that the cheque was purportedly sent in April 2000 when the plaintiff was at work, and was done so without authority from the plaintiff nor his employers. It is not in doubt that the defendant was instructed by the plaintiff’s employers to pay pensions contributions to the plaintiff as the plaintiff had been dismissed from work. There is no communication cancelling such instruction. In compliance thereof the defendants wrote a crossed cheque for Z$29 435,64 residential address in Bulawayo. Such address had been provided by the plaintiff’s employer. Section 2 (2) (c) of the Postal and Telecommunications Act [Chapter 12:02] deals with postal deliveries. It provides; “For purposes of this Act; The delivery of a postal article in terms of this Act shall be deemed to be delivered to the person to whom the article is addressed.” The law relating to payment by cheque is well established. The payment by cheque is a conditional payment; the condition being that the cheque will be paid on presentation. Once the cheque is presented to the payee then the risk passes to the payee upon such presentation. The question falling for determination is whether the cheque was presented to the plaintiff. The parties have agreed that the cheque was posted through the ordinary mail to plaintiff’s residential address in Bulawayo. The plaintiff argued that since the delivery was not done by registered mail there should be no presumption that the cheque was presented to him. The defendant on the other HH 83-17 HC 7034/14 hand argues that s 79 (4) of the Postal and Telecommunications (Postal Services) Regulation SI 238/2001 does not prescribe that cheques must be sent via registered articles. I agree with such submission. It was not illegal for the defendant to post the crossed cheque via ordinary mail. I was referred to the case of Stabilpave (Pty) Ltd v South Africa Revenue Service 2014 (1) SA 350 where the Supreme Court of South Africa said; “But when the creditor stipulated (or requests) a particular mode of payment and the debtor complies with it, any risk inherent in the stipulated method is for the creditor’s account. This is said to be the ‘ legal position’ (Greenfield Engineering Waks v NKR Construction 1978 (H) SA 901 N at 908 B-E), ‘the principle’ or ‘the law’ (Barclays National Bank Ltd v Wall 1983 (1) SA 149 at 156 H-157 C), at least when the post is to be employed for such purpose. And of necessity that must mean that; if the worst comes to the worst and the cheque is intercepted and misappropriated by a third party, the obligation to pay is deemed to be fulfilled even though the amount of the cheque was never credited to the creditor (cf Goldfields Confectionary and Bakery (Pty) Ltd v Norman Adam (Pty) Ltd 1950 (2) SA 763 (T) at 769)” Applying the above law to the facts of the current matter, Tel One the plaintiff’s employer instructed the defendant to pay the plaintiff’s pension contribution and provided the plaintiff’s address. That meant the defendant had to pay through the address. A cheque was then drawn and posted to the plaintiff’s address. The plaintiff has not denied that such was his address. The cheque was subsequently cashed and debited from the defendant’s account. Unfortunately parties have failed to establish from the collecting bank, the name of the account credited. It can be inferred that Tel One instructed the mode of payment by providing an address. That deeming presumption that payment was fulfilled is applicable. Even if the cheque was intercepted along the way the risk had already passed to the plaintiff. The cheque was also crossed. It was written “not negotiable”. In terms of s 79 of the Bills of Exchange Act [Chapter 14:02] a cheque is specifically crossed to a particular banker where it bears across its face an addition of the name of the banker either with or without the word “not negotiable”. Where the words “not negotiable’ appears the cheque is generally crossed. Section 82 (1) provides that where a cheque is generally crossed, the bank on whom it is drawn, shall not pay it otherwise than to a banker. This means the cheque is paid to someone with a bank account. In Rhostar v Netherlands Bank 1972 (2) SA 703 the court held that the effect of crossing a cheque makes that cheque non-transferrable. See also Philsam Investments v Beverley Building Society 1972 (2) SA 546, Bank of Credit and Commerce Zimbabwe Ltd v UDC Ltd 1990 (2) ZLR 397 (SC) at 403 where court quoted with approval a HH 83-17 HC 7034/14 passage by HOLMES JA in Standard Chartered Bank of South Africa Ltd v Sham Masazire Centre 1977 (1) SA 484 A @ 5049 G-H; “……. These words have no effect on the transferability of the cheque. They may operate as some safeguard of the cheque should fall into wrong hands. They are in effect a direction to the collecting banker that the specified payee should receive the money.” I am therefore satisfied that the defendant discharged the onus upon it by showing that it indeed wrote a cheque for $29 435.64 in favour of the plaintiff and posted same to the plaintiff’s residence. The defendant took an extra precaution of crossing the cheque. The cheque was not negotiable. The plaintiff on the other hand failed to discharge the onus on him of showing firstly that he was not the one who received and cashed the cheque. Even assuming the plaintiff did not receive the cheque the risk passed to him on posting the cheque. In the circumstances of the case, the plaintiff has no recourse against the defendant. His recourse may lie elsewhere. The cheque for $29 435.64 represented payment for the period 1999 dating back to 1989. In the result I order as follows; The plaintiff’s claim is dismissed with costs. Mhaka Attorneys, plaintiff’s legal practitioners Coghlan, Welsh & Guest, defendant’s legal practitioners