Are provisional sentence proceedings constitutional?

1 are provisional sentence proceedings constitutional ? By Zamazulu Nkubungu A provisional sentence summons may be issued when suing on a liquid document. This compels the defendant to appear before court to admit or deny liability in relation to the liquid document. If the court is satisfied that the defendant is liable in relation to the liquid document, the debtor will be ordered to pay the amount set out in the document; and is not permitted to defend the summons until payment has been made. In this article I will discuss the purpose and origins of r 8 of the Uniform Rules of Court, the rule s constitutionality and how the courts have ruled on it over the years.

2 Nature of provisional sentence proceedings provisional sentence is a special procedure designed to give a plaintiff with a liquid document and prima facie proof of his claim a speedy judgment without the expense and delay that ordinary trial action entails. A liquid document in terms of which provisional sentence can be granted was set out in Rich and Others v Lagerwey 1974 (4) SA 748 (A) at 754H as follows: If the document in question, upon a proper construction thereof, evidences by its terms, and without resort to evidence extrinsic thereto, is a conditional acknowledgement of indebtedness in an ascertained amount of money, the payment of which is due to the creditor, it is one upon which provisional sentence may properly be granted.

3 Once provisional sentence has been granted, the plaintiff is entitled to immediate payment or, failing that, to issue a writ of execution against the defendant s property. However, in terms of r 8(9) of the Uniform Rules, the defendant can demand security de restituendo against such payment or execution (ie, security from the plaintiff that he will be able to repay the defendant if he successfully defends the main action). If the plaintiff cannot provide acceptable security, he is not entitled to provisional relief and must wait for his money until he can obtain a final judgment in the principal case.

4 The plaintiff is thus entitled to payment under security and the defendant may only enter the principal case if he has paid the judgment in full or if the plaintiff has failed, on demand, to furnish security. The equivalent to r 8 in the magistrates courts rules is r 14, which is titled Summary judgment and provides for an application in a matter where the defendant has filed a notice of intention to defend, however the plaintiff believes that the defendant has no bona fide defence to the action. Constitutionality of r 8 One may argue that r 8 violates ss 9 and 34 of the Constitution in that it allows the plaintiff to execute against the defendant s property in circumstances that deny the defendant a fair hearing.

5 Section 34 of the Constitution reads: Everyone has the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. In the case of Twee Jonge Gezellen (Pty) Ltd and Another v Land and Agricultural Development Bank of South Africa t/a the Land Bank and Another 2011 (3) SA 1 (CC) the constitutional Court ruled that in some instances the provisional sentence procedure for debt recovery can limit a defendant s right to a fair trial.

6 In this case winemaker Twee Jonge Gezellen signed an acknowledgment of debt in favour of the Land Bank for R 39 million in 2003. The Land Bank instituted a claim for provisional sentence in the Western Cape High Court for the outstanding amount after the winemaker failed to pay the instalment owing. The first applicant had argued that although it had a valid defence against the claim namely that it owed the bank only R 20 million in terms of an oral agreement between the parties it was precluded from entering into the principal case by the court rules.

7 The applicants had unsuccessfully sought an order in the High Court declaring the common law remedy of provisional sentence and r 8 invalid for being inconsistent with the right to a fair hearing, the right to equality before the law and to equal protection and benefit of the law in terms of the Constitution. According to the court, the provisional sentence procedure constitutes a limitation of the defendant s right to a fair hearing before a court in terms of s 34 of the Constitution in certain cases. It is worth noting that, in respect of s 34 of the Constitution, the constitutional Court has held that the section guarantees that any constraint upon a person or property shall be exercised by another only after recourse to a court recognised in terms of the law of the land (Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC)).

8 In the case of Metcash Trading Ltd v Commissioner, South African Revenue Service, and Another 2001 (1) SA 1109 (CC) the constitutional Court stated that measures that assist creditors to obtain rapid and cost-effective execution against the property of debtors are not in violation of the prohibition of self-help unless they remove the possibility of any recourse to the judicial system. I submit that the provisions of r 8 do not necessarily result in the defendant receiving an unfair hearing, nor do they remove a defendant from judicial scrutiny. In this regard, r 8 recognises that a plaintiff is required to have recourse to the court before he can execute against the property of the defendant.

9 The entire procedure that governs r 8 does not exclude proper judicial intervention. Consequently, the court retains its jurisdiction to refuse the granting of provisional sentence in certain circumstances. It is crucial to have regard to the principal objective of provisional sentence . In this regard, r 8 provides speedy relief to a plaintiff who has a liquid document and who is entitled to the payment of the debt. In my opinion, it is thus imperative that the judgment debt be satisfied accordingly. Furthermore, I submit that the r 8 measures that assist the plaintiff to obtain rapid and cost-effective execution against the property of the defendant are not in violation of the prohibition of self-help unless they remove the possibility of any recourse to the judicial system.

10 In the event that the defendant does not satisfy the judgment by making the necessary payment, the execution of property is an alternative means of satisfying the debt to be paid. The defendant is also afforded an opportunity to demand that the plaintiff pay security in the event that the defendant enters into the principal case. Since r 8(9) provides for the furnishing of security by the plaintiff, it is submitted that this ameliorates the defendant s hardship and ensures that the latter does not suffer any irreparable harm. Accordingly, r 8(9) creates a balancing act that ensures fairness to both parties to the proceedings .