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. 

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’.

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.

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. 

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. 

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. 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)).

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. 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.

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. The r 8 proceedings are governed by the rules of court, which are at all times subject to judicial oversight. It therefore follows that the provisions of r 8 are in compliance with the provisions of the Constitution, in particular ss 9 and 34 of the Constitution.

To fully appreciate the scope of judicial intervention and scrutiny in provisional sentence proceedings, it is important to set out the principal purpose and historical genesis of r 8.

Historical genesis of r 8

Provisional sentence emanates from the early Roman-Dutch procedure that formed part of South African law and the principles of provisional sentence in South Africa are very similar to those of the original Roman-Dutch practice (see FR Malan, AN Oelofse, JT Pretorius and CJ Nagel Provisional Sentence on Bills of Exchange, Cheques and Promissory Notes (Durban: Butterworths 1986) at 14). Despite having been debated and criticised repeatedly, provisional sentence has stood the test of time. The court in Barclays Western Bank Ltd v Pretorius 1979 (3) SA 637 (N) at 652H, in acknowledging the less favourable aspects of provisional sentence, indicated as follows: ‘The historical explanation for the remedy is that, for all these undoubtedly oppressive by-products, it was necessary to meet the circumstances in which it was conceived.’ 

In Colonial Treasurer v Smit 1907 TS 747 Innes CJ supplied the following description of such historical factors at 750: ‘The fact is that in the 16th and 17th centuries the progress of an action at law, like that of many other transactions, was marked by a degree of formality and dignity which was in accordance with the spirit of the times. Even when the defendant did not appear, after having been duly summoned, judgment was never given at once. The suit proceeded in stately and deliberate fashion, through successive defaults and citations, to its ultimate issue. All this took time; and, in order to obviate the delay which was caused by the various stages in an ordinary action, the practice was introduced of allowing the plaintiff to ask for provisional sentence when he could produce liquid proof of the defendant’s obligation’. 

Setting out the historical genesis of r 8, in Ndamase v Functions 4 ALL 2004 (5) SA 602 (SCA) at 607H-J, Southwood AJA stated the following: ‘Provisional sentence procedure and the granting of the interlocutory relief of provisional sentence has remained a part of South African law. At the Cape, rules governing the procedure were introduced in the High Court and it became the practice to seek provisional sentence at the inception of the principal case by means of a special form of summons. This summons served a dual purpose. It instituted the principal case in which definitive relief was claimed; and it instituted the proceedings for the interlocutory relief of provisional sentence. That interlocutory relief was, as was the position in Roman-Dutch law, payment against de restituendo.’

It is clear from the authorities on r 8 that the plaintiff’s right to receive payment is not an unqualified one. The relief is for payment under security (solutio fiduciaria). It is often difficult for a successful plaintiff to find security de restituendo. Accordingly, in Van der Merwe v Bonaero Park (Edms) Bpk 2000 (4) SA 329 (SCA) at 334C-F the Supreme Court of Appeal held that the furnishing of security and the payment of the judgment debt must take place simultaneously as it would be unfair to expect the defendant to pay before the plaintiff has furnished security. In this way, the plaintiff will not be able to use the payment made by the defendant in order to obtain security. 

The above principles, as enunciated in the common law, clearly indicate that the provisions of r 8 have sufficient internal mechanisms for ensuring fairness to both parties involved in the procedure. In this regard, in Highfield Milling Co (Pty) Ltd v AE Wormald & Sons 1966 (2) SA 463 (E) at 465F–466A O’Hagan J stated the following: 

‘[C]onsiderations of justice and fairness must be of prime importance when the court is concerned with the interpretation of procedural rules. … Rules of court are designed for the court whose business it is to secure the conduct of litigation in a manner calculated to serve the just requirements of the parties. … I am of the opinion that very clear and explicit language would be needed to justify an inference that rule 8 contemplates the withholding from the court of a discretionary power which, over a period of many years, has been exercised in all the courts of South Africa and which has its foundation in principles of convenience and fairness. Indeed it is possible to conceive of cases where a defendant against whom provisional judgment has been granted and who cannot go into the principal case through inability to satisfy the judgment, is made to suffer, not because he has failed in the provisional proceedings to discharge the burden of proof resting upon him, but for the reason that he has not been given an adequate opportunity of putting his case before the court. I cannot think that rule 8 envisages such a possibility.’

The rule makes provision for the filing of two affidavits but the court has discretion to allow the filing of a further set of affidavits in exceptional circumstances. This may be done where required by considerations of justice and fairness and where it is shown that the defendant will not suffer any prejudice that cannot be remedied by an appropriate order as to costs. Although provisional sentence is an extraordinary remedy that is only available in limited circumstances, I submit that it holds advantages for defendants as well. As illustrated by the authorities cited above, the courts attempt to ensure consistency and fairness in the application of the rule. The procedure will not lead to a grave injustice in most cases. In fact, the rule facilitates access to justice by decongesting court rolls and by providing a speedy, cost-effective remedy. All parties benefit when matters are resolved quickly.

Conclusion

I submit that, in the light of the authorities cited, r 8 serves a useful and legitimate purpose in civil litigation and is in the public interest. Significantly, the defendant has an option of filing an affidavit in court in denial of liability of the plaintiff’s claim. I submit that the prohibition of a defendant from leading any evidence that challenges the basis of the document may fall foul of the provisions of the Constitution – s 34 in particular. The same holds true for denying the defendant the opportunity to cross-examine the plaintiff and his witnesses. It should further be noted that on the granting of provisional sentence summons, the defendant has two months in which to satisfy the judgment. Moreover, on refusal of provisional sentence the defendant is required to file a plea. The defendant’s chances of entering into the principal case are dependent on payment of the judgment debt or on the plaintiff’s failure to provide security. On fulfilment of the requirements, if the defendant fails to enter into the main case, then provisional sentence automatically becomes final and the security lapses.

It should be noted that provisional sentence is an interlocutory procedure. At this stage the plaintiff and the defendant bear the onus in respect of different issues. The plaintiff must discharge his onus on a balance of probabilities at the provisional stage, whereas the defendant must satisfy the court that, having regard to the onus in the principal case, the probabilities of success in the main case are against the plaintiff. The onus can only be discharged on facts raised in an affidavit and not merely based on inferences. That being the case, in my opinion the defendant’s onus is therefore less onerous than that of the plaintiff. 

I submit that the principal purpose served by r 8 is that it provides a speedy remedy to a plaintiff who clearly has a stronger case than the defendant. The procedure thus prevents a defendant who has no valid defence from delaying the resolution of the matter by unduly dragging out litigation to the prejudice of the plaintiff. 

Accordingly, from the moment both parties file their affidavits, the court is able to balance the interests involved and decide whether or not to grant the order. Authorities clearly indicate that provisional sentence seeks to strike a balance by ensuring fairness to both parties. It serves the rational constitutional objective of ensuring that indebted defendants do not unduly protract matters and avoid their obligations by engaging in inordinate, costly and lengthy litigation at the expense of legitimately owed plaintiffs.

Zamazulu Nkubungu LLB (Walter Sisulu University) is a legal adviser in Pretoria.