Question 1(a) Janet signs a promissory note in favour of Pick n Pay and leaves the amount blank before giving it to her son, Daniel, to go and do the grocery shopping. Along the way to Pick n Pay, Daniel misplaces the promissory note. Janet is very angry, and instead does the grocery shopping herself. Five days later, Janet is approached by Jimmy, who presents the promissory note to her for payment. The amount filled in is now R10 000 and has been indorsed several times before it reached Jimmy. Jimmy describes himself as a holder in due course. Advise Janet as to the absolute defences available to her against Jimmy. (5)
Defences against a holder in due course I.Non est factum I.Where a party signs a document without knowing that it is a bill of exchange and is not negligent in doing so II.The drawer/maker may raise the defence that the bill was incomplete and not delivered – drawer/maker bears burden of proof III.Vis absoluta I.Where a drawer or maker was forced to sign the instrument IV.No capacity I.Only where there was no capacity at signature and at delivery to the first holder V.Forged or unauthorised signature I.An unauthorised signature may subsequently be ratified, but not a forged signature VI.Material alteration I.Where a material change has been made to the bill/note
Parties to a Bill The Act requires there to be 3 parties to a Bill: The drawer, who instructs the drawee to pay a specified person The holder of a bill is the person who may claim payment on a bill or negotiate it The payee or specified person (above) is the first holder of a bill The drawee also becomes the acceptor on acceptance of the bill
A sum certain in money The sum on the bill/note must be definite, although it does not necessarily need to be in South African currency Section 7(1) of the BEA provides that a bill will still be regarded as a sum certain in money where the bill is required to be paid: With interest By stated installments By stated instalments, and upon default in payment of an instalment, the whole amount becomes due by provision to that effect in the bill; or According to a rate of exchange indicated, or to be ascertained as directed by the bill
Van Tonder v Vorster  2 All SA 229 (A) A son had signed a cheque on behalf of his father by placing his own signature on the cheque Both the father and the son had the same name and surname The court considered the validity of the cheque in light of section 95 BEA: If by this Act, any instrument or writing is required to be signed by any person, it is not necessary that he should sign it with his own hand, but it is sufficient if his signature is written or printed thereon by some other person, by or under his authority… In this case the court found that the name of the father had been written on the cheques by the son with the fathers authority, and this was sufficient to satisfy section 95 of the Act.
Your exam 2pm on Friday 2 November in Mullins 1.5 Hours 3 questions (each 25 marks), answer 2 = total 50 marks Supp Exam: to be confirmed
November Exam: Question 1: 25 x MCQs 14 x Company Law (3 rd term)VJH 11 x Forms of Payment (4 th term)6 VJH, 5 JMcC Question 2: (a)Company Law (15)VJH (b)Forms of Payment (5)JMcC (c)Forms of Payment (5)JMcC Question 3: (a)Company Law (10)VJH (b)Company Law (7)VJH (c)Forms of Payment (8)VJH
Supp Exam Question 1: (a)Company Law (15) VJH (b)Forms of Payment (10)VJH Question 2: (a)Company Law (15)VJH (b)Forms of Payment (10)JMcC Question 3: (a)Company Law (10)VJH (b)Forms of Payment (5)VJH (c)Forms of Payment (10)JMcC Note: No MCQs