Tek Appliances (Pty) Ltd v Ntlhasinye (CIV/T 149 of 91) [1991] LSCA 162 (16 December 1991)

CIV/T/149/91 IN THE HIGH COURT OF LESOTHO In the matter of: TEK APPLIANCES (PTY) LTD Plaintiff vs DAVID NTLHASINYE Respondent Before the Honourable Chief Justice Mr Justice B P. Cullinan on the 16th day of December 1991 For the Plaintiff Mr. T. Mahlakeng For the Defendant Mr S Phafane JUDGMENT Cases referred tor (1) Von & Manufacturers Ltd (1962) 35A 399, Siegler Anor v Superior Furniture (2) Steelmetals Ltd v Truck and Farm Equipt Ltd and Anor (1961)2 SA 372, (3) Dickinson v South African General Electric Co. (Pty) Ltd (1973) 2 SA 620 (A), -2- (4) Plascon Evans Points (Tvl) Ltd v Ming and Another (1980) 3 SA 378 This is an application for provisional sentence The defendant is a director of Modern Kitchen and Cupboards (Pty) Ltd On 11th September, 1990 he signed a cheque made out to the plaintiff company in the amount of M17.766 00 The cheque was dishonoured The defendant deposes that he signed the cheque on behalf of the former company There is nothing on the face of the cheque to indicate that such is the case I have considered a number of authorities, in particular that of Von Siegler & Anor v Superior Furniture Manufacturers Ltd (1) per Trollip J There is no doubt that on all the authorities the defendant is prima facie liable on the cheque, that is, ex facie the cheque. There is however the question of rectification The defendant, by inference, raises such defence in paragraphs 5 and 8 of his affidavit There are two points in his favour He deposes that the account number on the cheque is that of the company and not his There is no evidence indeed that the defendant had an account at the particular bank or branch thereof see Steelmetals Ltd v Truck and Farm Equipt Ltd and Anor (2) at p 375 at F per Trollip J -3- Again, it emerges that the plaintiff has previously filed an action in the matter against the company Modern Kitchens and Cupboards (Pty) Ltd, which points to a common understanding that the cheque was a company cheque - see Dickinson v South African General Electric Co. (Pty) Ltd (3) at p 629 at H per Jansen J. A. and see Plascon Evans Points (Tvl) Ltd v Mine and Another (4) at p 386 at F per Melamet J The facts of the present case are not as strongly in favour of the defendant as those of the Steelmetals (2) and the Plascon (4) cases, Nonetheless, it seems to me that on the probabilities he might succeed in a defence of rectification on the basis of error. Provisional sentence is a drastic remedy. 1 consider it is safer to allow the matter to go to trial. Provisional sentence is accordingly refused Costs shall be those in the main cause. Delivered at Maseru This 16lh Day of December, 1991. B P. CULLINAN CHIEF JUSTICE