Court name
Bulawayo High Court
Case number
XREF HC 2223 of 2001
HC 2223 of 2001

Knight and Anor v Standard Chartered Bank (XREF HC 2223 of 2001, HC 2223 of 2001) [2002] ZWBHC 123 (16 October 2002);

Law report citations
Media neutral citation
[2002] ZWBHC 123

                                                                                    Judgment No. HB 123/2002

                                                                                    Case No. HC 2844/2001

                                                                                    X-ref HC 2223/2001



JOHN ANTHONY KNIGHT                                  1st Applicant








STANDARD CHARTERED BANK                     Respondent






Adv. P Nhererefor the applicants

Mellinfor the respondent


Application for Summary Judgment


            CHIWESHE J:          Both first and second plaintiffs were customers of the


Fife Street Branch of the defendant in Bulawayo, where each operated a current


banking account.


            During the period extending from 10 January 2000 to 22 February 2001 the


defendant bank on diverse occasions paid and debited to the current account of the


first plaintiff cheques totalling $984 990,93.  The first plaintiff avers that the


signature on each of these cheques had been forged by one Thandiwe Makalima, who


was not an authorised signatory on that account.


            Further during the period extending from 8 April 2000 to 9 October 2000 the


defendant bank paid and debited to the current account of second plaintiff on three


occasions cheques totalling $16 800,00.  The second plaintiff avers that the signatures


on each of these cheques had been forged by one Thandiwe Makalima who was not


an authorised signatory on that account.


                                                                                                            HB 123/02                                                                  -2-


            The plaintiffs issued summons against the defendant bank in order to recover


these sums of money on the basis that as the cheques so paid out and debited to their


respective accounts were forged, the defendant bank had no mandate to debit these


accounts for the amount of such cheques and is accordingly obligated in law to


reimburse the plaintiffs the amount of such debit.  The defendant bank has entered


appearance to defend both claims.  In response the plaintiffs filed an application for


summary judgment on the grounds that the defendant bank does not have a bona fide


defence to their claims and that it has entered appearance to defend solely for the


purpose of delaying the conclusion of the matter.  In this regard the applicants relied


on the founding affidavit of one Oliver Knight who is a director of the second


applicant and holder of a general power of attorney to manage the affairs of first


applicant.  The facts to which he deposed are within his personal knowledge as he was


personally involved in the compilation of the financial data relating to this case.  His


locus standi in respect of second applicant has been challenged in limine on the


grounds that he is not a director of the second applicant.  The objection in limine has


no merit given the existence of the power of attorney as well as the fact that the


deponent has personal knowledge of the facts giving rise to this action.  It must be




            In opposing the application the respondent relies on the affidavit of its


manager, fraud/risk cards, one Lionel Peters.  The respondent concedes that the


applicants are its customers at its Fife Street Branch, Bulawayo and that it paid and


debited cheques totalling $984 990,93 and $16 800,00 respectively.  The respondent


argues that the authentic signatories to the accounts have not filed affidavits






confirming that indeed the signatures complained of are not theirs and were therefore


forgeries.  Neither has it been established by way of affidavit or otherwise whether


Thandiwe Makalima admitted the forgery or whether she is merely assumed to have


forged the signatures.  The respondent also relied on the preliminary report from Mr L


T Nhari, a questioned document expert.  In it Mr Nhari is of the view that not all the


signatures are forged and that at least cheques to the value of $191 326,95 bear


authentic signatures.


            Respondent intends to obtain a further report from Mr Nhari and needs more


time to pursue this part of his internal investigation.  For that reason respondent


makes no admissions at this stage.  The respondent also contends that the applicants


may have been contributorily negligent as shown by the delay on their part in


detecting the fraud.  That delay would tend to suggest applicants’ audit control system


is weak.  There is also a possibility that the authentic signatories who at the time were


out of the country could have signed blank cheques for use during their absence. 


Whilst conceding that applicants would not normally be liable for a forged cheque the


respondent argues that the bank’s liability is not absolute, particularly where it can be


shown that the client caused it to pay the amount on the cheque or misled the bank by


his conduct.


            Does the respondent bank’s opposing affidavit disclose any good bona fide


defence?  In Jena v Nechipote 1986 (1) ZLR 29 SC at page 30 GUBBAYJA (as he


then was) said:

“All that a defendant has to establish in order to succeed in having an application for summary judgment dismissed is that there is a mere possibility of success, he has a plausible case, there is a triable issue or there is a reasonable possibility that an injustice may be done if summary judgment is granted.”





            It appears to me generally speaking that an application of this nature cannot


succeed where the respondent has revealed a prima facie defence.  An application


such as this is by its very nature drastic.  It can only be granted when the defences


proffered by the respondent are clearly unarguable.


            The thrust of the respondent’s defence is that these cheques or at least a good


number of them were not forged.  This defence is not far fetched.  An expert’s report


is relied upon in this regard.  It is intended to put the cheques under further scrutiny in


order to establish this fact.  The evidence in this regard is technical and involving.  In


the same vein the signatories of the two accounts have not filed affidavits denying the


authenticity of the signatures on the cheques.  The factual basis upon which it is


alleged that Thandiwe Makalima forged the cheques has not been established.


            In my view the respondent has established a prima facie defence.  The


question raised, whether the signature on the cheques were in fact forged is a triable


issue and one that is central to the applicant’s case.  The respondent must be given the


opportunity to conduct its defence.  A point of law has also been raised which


deserves attention, that is, whether the liability of the bank in cases where the client


has by word or conduct contributed to the resultant fraud, should remain strict and




            I am satisfied that it would not be in the interest of justice to grant this


application.  Accordingly it is ordered as follows:


            The application is dismissed and leave is granted to the respondent to defend


the action.  The costs of this application shall be met by the applicants.



Lazarus & Sarifapplicants’ legal practitioners

Ben Baron & Partnersrespondent’s legal practitioners