MODULE :CLA2602
,CLA2602 Exam Pack
Contains:
• Exam Pack Question & Solutions
• Workbook Questions & Answers
,
Page |3
MAY/JUNE 2011
SECTION A
QUESTION 1
a) (i) Transferable. No longer negotiable but remains transferable
(ii) Transferable. The true owner of a lost or stolen cheque acquires rights under s 81 only if the cheque is
crossed and marked ``not negotiable''.
(iii)Transferable. ``a/c payee only'' do not affect the transferability of the cheque but are simply an
instruction to the collecting bank that a certain payee must receive payment of the cheque.
b) (i) B Bank – No, section 79 will protect B Bank if B Bank, as the drawee bank, paid to the wrong person a
non-transferable cheque with ``not negotiable'' written on it. Section 79 is applicable to both transferable
and non-transferable cheques. The protection offered by section 79 will also cover both the traditional
non-transferable cheque in terms of section 6(5) and the section 75A(1) non-transferable cheque on
which the words ``not transferable'' appear.
(ii) D – Yes, the true owner will have a right of recourse against the thief who was mala fide. His right of
recourse is based on delict (or enrichment), and not on the cheque itself.
(iii) E – Yes, in terms of section 81,C, the true owner, acquires a right of recourse against E, since the
following requirements of s 81(1) have been met:
- The cheque was crossed and marked ``not negotiable.''
- The cheque was stolen while it was crossed and marked as above.
- The drawee bank paid under circumstances which, in terms of the BEA, do not make the bank liable
against the true owner.
- The plaintiff is the true owner.
- C(true owner)must be able to show that he suffered damage as a result of theft.
- E had the cheque in his possession after the theft or loss.
- E gave a counter performance for the cheque (he took the cheque for value).
(iv) G Bank - According to s 81(5), a bank which receives a cheque which is crossed and marked ``not
negotiable'' is not to be regarded as having given consideration therefore merely because it has in its own
books credited its customer's account with the amount of the cheque before receiving payment thereof
or because any such payment is applied towards the reduction or settlement of any debt owed by the
customer to the bank. However, the collecting bank will lose its protection if it paid out cash over the
counter for such a cheque, or agreed that its customer could immediately draw against that cheque.
c) ATM
EFTPOS
Home banking
Mobile banking
,
Page |4
QUESTION 2
a) Minors
Prodigals
Mentally disturbed persons
Insolvent persons
Persons prohibited by legislation
b) any FIVE of these rights, powers and duties.
(i) taking custody of the estate;
(ii) the opening of a banking account ;
(iii) to submit executor’s inventory to the Master ;
(iv) advertisement of notice to creditors to lodge their claims against the estate;
(v) examination of claims against the estate;
(vi) determination of solvency of the estate;
(vii) determining who the legatees and heirs are;
(viii) lodging and advertising of the liquidation and distribution account ; and
(ix) liquidation of the estate.
c) Bewind Trust (aka bewindvoerder)
d) Garry’s failure to comply with his duties as trustee constitutes a breach of trust. A trustee may be
removed if his actions were mala fide. If elements of delictual liability are present, the trustee is
personally liable to make a good any loss.
QUESTION 3
a) Applicant entitled to apply in terms of section 9(1)
Debtor committed act of insolvency
Sequestration will to the advantage of creditors
b) (i)
1. Property owned before marriage to the insolvent.
2. Property acquired under a marriage settlement.
3. Property acquired by marriage settlement during the marriage.
4. Property protected under certain other provisions (eg, insurance legislation).
5. Property acquired with proceeds of the above.
(ii) • It is applied for the benefit of the creditors of the insolvent spouse.
• The solvent spouse will have to provide security to the insolvent estate.
• It will vest in the master or the trustee once the period for which the order was granted has expired.
SECTION B
1. T
,CLA2602 Exam Pack
Contains:
• Exam Pack Question & Solutions
• Workbook Questions & Answers
,
Page |3
MAY/JUNE 2011
SECTION A
QUESTION 1
a) (i) Transferable. No longer negotiable but remains transferable
(ii) Transferable. The true owner of a lost or stolen cheque acquires rights under s 81 only if the cheque is
crossed and marked ``not negotiable''.
(iii)Transferable. ``a/c payee only'' do not affect the transferability of the cheque but are simply an
instruction to the collecting bank that a certain payee must receive payment of the cheque.
b) (i) B Bank – No, section 79 will protect B Bank if B Bank, as the drawee bank, paid to the wrong person a
non-transferable cheque with ``not negotiable'' written on it. Section 79 is applicable to both transferable
and non-transferable cheques. The protection offered by section 79 will also cover both the traditional
non-transferable cheque in terms of section 6(5) and the section 75A(1) non-transferable cheque on
which the words ``not transferable'' appear.
(ii) D – Yes, the true owner will have a right of recourse against the thief who was mala fide. His right of
recourse is based on delict (or enrichment), and not on the cheque itself.
(iii) E – Yes, in terms of section 81,C, the true owner, acquires a right of recourse against E, since the
following requirements of s 81(1) have been met:
- The cheque was crossed and marked ``not negotiable.''
- The cheque was stolen while it was crossed and marked as above.
- The drawee bank paid under circumstances which, in terms of the BEA, do not make the bank liable
against the true owner.
- The plaintiff is the true owner.
- C(true owner)must be able to show that he suffered damage as a result of theft.
- E had the cheque in his possession after the theft or loss.
- E gave a counter performance for the cheque (he took the cheque for value).
(iv) G Bank - According to s 81(5), a bank which receives a cheque which is crossed and marked ``not
negotiable'' is not to be regarded as having given consideration therefore merely because it has in its own
books credited its customer's account with the amount of the cheque before receiving payment thereof
or because any such payment is applied towards the reduction or settlement of any debt owed by the
customer to the bank. However, the collecting bank will lose its protection if it paid out cash over the
counter for such a cheque, or agreed that its customer could immediately draw against that cheque.
c) ATM
EFTPOS
Home banking
Mobile banking
,
Page |4
QUESTION 2
a) Minors
Prodigals
Mentally disturbed persons
Insolvent persons
Persons prohibited by legislation
b) any FIVE of these rights, powers and duties.
(i) taking custody of the estate;
(ii) the opening of a banking account ;
(iii) to submit executor’s inventory to the Master ;
(iv) advertisement of notice to creditors to lodge their claims against the estate;
(v) examination of claims against the estate;
(vi) determination of solvency of the estate;
(vii) determining who the legatees and heirs are;
(viii) lodging and advertising of the liquidation and distribution account ; and
(ix) liquidation of the estate.
c) Bewind Trust (aka bewindvoerder)
d) Garry’s failure to comply with his duties as trustee constitutes a breach of trust. A trustee may be
removed if his actions were mala fide. If elements of delictual liability are present, the trustee is
personally liable to make a good any loss.
QUESTION 3
a) Applicant entitled to apply in terms of section 9(1)
Debtor committed act of insolvency
Sequestration will to the advantage of creditors
b) (i)
1. Property owned before marriage to the insolvent.
2. Property acquired under a marriage settlement.
3. Property acquired by marriage settlement during the marriage.
4. Property protected under certain other provisions (eg, insurance legislation).
5. Property acquired with proceeds of the above.
(ii) • It is applied for the benefit of the creditors of the insolvent spouse.
• The solvent spouse will have to provide security to the insolvent estate.
• It will vest in the master or the trustee once the period for which the order was granted has expired.
SECTION B
1. T
