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The provisional sentence procedure is an overlooked yet useful mechanism in South African procedural law. It operates from the premise that a plaintiff who proves a debt based on liquid documentary grounds, is entitled to an order for provisional payment by the defendant, against the plaintiff’s furnishing of security de restituendo to the defendant.
This drastic procedure can assist litigants to obtain judgment particularly fast. It may save clients both time and costs compared to action proceedings in the normal course. Provisional sentence is regulated in r 8 of the Uniform Rules of Court and r 14A of the Magistrates’ Courts Rules. The two rules are virtually identical, and High Court practice should be followed in the lower courts (GN R498 GG15567/11-3-1994; T Broodryk Eckard’s Principles of Civil Procedure in the Magistrates’ Court 6ed (Cape Town: Juta 2019)).
This article describes provisional sentence and compares it to arguably less-expedient procedures. The comparison seeks to point out that it is useful for practitioners to master the procedure early on in their careers. Confidence with provisional sentence equips practitioners with a further arrow in their quiver to serve clients in a relatively simple, efficient and solution-focused fashion. This article also briefly investigates why the provisional sentence procedure is often overlooked and argues that those reasons do not diminish the value of provisional sentence as a useful skillset for practitioners to master.
Provisional sentence derives from the Roman-Dutch law as namptissement or ‘handvulling’ (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) at para 14; DE van Loggerenberg Jones & Buckle: The Civil Practice of the Magistrates’ Courts in South Africa 2022 RS 32 p 14A-2). Handvulling, literally translated from Dutch and Afrikaans as ‘filling the hand’, aptly describes how the procedure may swiftly satisfy a plaintiff’s claim. This aids a plaintiff who is out of pocket due to the defendant’s default on a debt. A liquid document raises a rebuttable presumption of indebtedness, and a plaintiff must allege that the document is genuine and the debt therein due. If the defendant disputes these allegations (by, for example, challenging the signature and/or the authority of the signatory or denying that the debt is due), the plaintiff bears the civil onus to prove its allegations (Twee Jonge Gezellen at para 20).
A defendant wishing to enter the proceedings after provisional sentence was granted, must make secured payment to the plaintiff (r 8(10) of the Uniform Rules of Court and r 14A(10) of the Magistrates’ Courts Rules). If the defendant is successful in the principal case, the amount paid to the plaintiff provisionally is accordingly secured for the defendant to reclaim (S Peté, D Hulme, M Du Plessis, R Palmer, O Sibanda and T Palmer Civil Procedure: A Practical Guide (Cape Town: Oxford University Press 2016 at 431)).
In the original practice in the courts of Holland, the defendant would pay the provisional judgment debt into court, known generally as ‘consignation’ (Twee Jonge Gezellen at para 16; see further F van Dyk ‘Consignatio as ’n prosesregtelike remedie tydens skuldeisersversuim’ (2020) 56 Responsa Meridiana 185). Since the 16th century, defendants paid the plaintiff instead, against the plaintiff’s furnishing of security (Twee Jonge Gezellen at para 16). Importantly, a plaintiff who obtained provisional sentence can execute against a defendant, ‘filling the hand’ before the judgment becomes final two months after it was granted (r 8(11) of the Uniform Rules of Court, r 14A(11) of the Magistrates’ Courts Rule; Peté et al (op cit) at 431).
The common law relating to provisional sentence was developed in Twee Jonge Gezellen (Pty) Ltd, the authoritative case on provisional sentence in the constitutional era. The development allows the court a discretion to refuse provisional sentence where the defendant shows its inability to satisfy the judgment debt, an even balance of prospects of success in the main case on the papers, and a reasonable prospect that ‘oral evidence may tip the balance of prospective success in his or her favour’. These three requirements are to be read conjunctively (Twee Jonge Gezellen at paras 66 and 78. See M Christian and T Bekker ‘’n Aanval op die grondwetlikheid van die voorlopige vonnisprosedure – Twee Jonge Gezellen (Pty) Ltd v Land and Agricultural Development Bank of South Africa t/a the Land Bank 2011 (5) BCLR 505 (CC)’ (2012) 75 THRHR 509 at 513-514).
Combined or simple summonses initiate action proceedings, and the latter may be used where the claim is for a liquid amount or for the delivery of a specified thing. A plaintiff may apply for default judgment where a defendant files no notice of intention to defend, or files no plea and is subsequently barred in terms of
r 26 of the Uniform Rules of Court or r 21B of the Magistrates’ Courts Rules.
Provisional sentence allows the defendant to file an opposing affidavit before the hearing date. Plaintiffs are afforded a ‘reasonable opportunity’ to reply to an opposing affidavit (r 8(5) of the Uniform Rules of Court and r 14A(5)(b) of the Magistrates’ Courts Rules). The court date in provisional sentence proceedings must be no less than ten days after service of the provisional sentence summons
(r 8(1) of the Uniform Rules of Court and r 14A(1) of the Magistrates’ Courts Rules). As little as ten court days may accordingly run between service and the hearing.
A plaintiff using provisional sentence proceedings is assured of a hearing, to be set down for at least ten days after date of service. A plaintiff using normal summons proceedings on liquid documentary grounds knows, however, that the earliest opportunity to apply for default judgment is when no intention to defend is filed in time. Such a plaintiff must budget ten court days after service of the summons, plus the typically lengthy administrative period taken by the clerk or registrar to award default judgment. During provisional sentence proceedings, the court will award judgment on the hearing date, particularly where a defendant fails to file an opposing affidavit or cannot garnish its defence by meeting the Twee Jonge Gezellen requirements for the court to exercise its discretion. This is a significantly shorter and less drafting intensive route from service to executable judgment.
The next opportunity for a plaintiff, who sues on summons in the normal course, to obtain judgment prior to a full trial is when a plea does not disclose a bona fide defence, and where the plaintiff’s claims meet the requirements set out in r 32(1) of the Uniform Rules of Court and r 14(1) of the Magistrates’ Courts Rule (Nair v Chandler 2007 (1) SA 44 (T) at 46H). Such a plaintiff may apply for summary judgment. Accordingly, a plaintiff awaits the defendant’s plea for at most 20 court days. Only thereafter and on receipt of the defendant’s plea, can the plaintiff study the defendant’s averments in defence and decide whether summary judgment proceedings should be launched.
Considering such delay, it will be more cost effective and expedient to use the provisional sentence procedure for claims based on liquid documentary grounds. A defendant may present a defence on affidavit, to which a plaintiff is entitled to reply, which will cause a postponement (r 8(5) of the Uniform Rules of Court and r 14A(5) of the Magistrates’ Courts Rules). The court may refuse provisional sentence in terms of its greater discretion in Twee Jonge Gezellen and direct the defendant to file a plea, leading to normal action proceedings (r 8(8) of the Uniform Rules of Court and r 14A(8) of Magistrates’ Courts Rules). It may also refuse provisional sentence outright, so that the plaintiff must re-issue a summons in the normal course (Broodryk (op cit) 150).
For a plaintiff who pursues provisional sentence on the qualifying grounds and discharges its uncomplicated onus if the defendant disputes the claimability of the debt or the genuineness of the liquid document, there is the distinct possibility of obtaining provisional, executable judgment in as little as ten court days after service.
The judicial discretion developed in Twee Jonge Gezellen is advanced as a reason for the perception that provisional sentence proceedings is fading into obscurity. It is also advanced by M Dendy and C Loots that when a plaintiff wishes to sue on claims covered by the prerequisites of the National Credit Act 34 of 2005 (NCA), provisional sentence may be less suited, since its pleading format entails little more than a summons with a description of the liquid document (M Dendy and C Loots Herbstein and Van Winsen: The Civil Practice of the Superior Courts of South Africa 2021 vol 1 ch 9 p 30). The NCA requires a plaintiff to make numerous averments relating to compliance with the NCA and these averments, according to the authors, may lengthen the summons and create room for triable disputes (Dendy and Loots (op cit) 2021 vol 1 ch 9 p 30).
These perceptions deserve critical reconsideration. First, the Twee Jonge Gezellen discretion to refuse provisional sentence only arises where the defendant meets all three conjunctive requirements introduced in that case (Twee Jonge Gezellen at para 66). A defendant cannot avoid provisional sentence by, for example, simply stating its inability to satisfy the debt (Twee Jonge Gezellen at para 68). A defendant must also show that there is an even chance of success considering the case on the papers. Further, a defendant must show that oral evidence, which may not be led during provisional sentence proceedings except as to the authenticity of the signatures on the liquid document, the authenticity of the document itself or the authority of the signatories (r 8(7) of the Uniform Rules of Court and r 14A(7) of the Magistrates’ Courts Rules), may tip the balance of success in its favour. Twee Jonge Gezellen does not cast a debilitating spoke in the wheel of provisional sentence proceedings.
Secondly, even if a cut and dried claim within the NCA’s ambit requires more averments than usual, there are no absolute prescripts on the format of pleading. The prescribed Form 3 in the Uniform Rules of Court and Form 2A in the Magistrates’ Courts Rules are the closest to a prescript, but even so, does not require formalistic compliance. I submit that where a plaintiff properly traversed the NCA’s prescripts and assesses that it still has a clear case on liquid documentary grounds, there is no procedural bar to pursue provisional sentence. The length of the provisional sentence summons is no guarantee that the proceedings itself will necessarily be drawn out, to the extent that normal summons proceedings are preferable.
Furthermore, regulated credit agreements are hardly the sum total of provisional sentence’s application in practice. Acknowledgements of debt, architects’ or engineers’ certificates, negotiable instruments, lease agreements and bills of costs may all fit the definition of a liquid document (Van Loggerenberg (op cit) 2022 RS 32 p 14A-6 to 12). A concise description of a liquid document is a written instrument signed by the defendant or its agent, evincing an unconditional acknowledgement of indebtedness for a fixed sum (Peté et al (op cit) at 425). There is no closed list of documents that carry these characteristics. It does not follow that the benefits of provisional sentence should be overlooked simply because it may not be available in certain case-specific circumstances.
Provisional sentence proceedings are tailored for liquid documentary debts, to assist plaintiffs provisionally yet quickly. It is prudent for practitioners to consider avoiding the timelines inherent to other expedient proceedings where liquid documents are involved. Even if a defendant files its opposition, provisional sentence proceedings offer the chance at efficiently and expediently obtaining judgment, which is immediately executable, conditional on the furnishing of security. While there is no closed list of liquid documents eligible for provisional sentence, acknowledgements of debt that restructure defaulted dues are ubiquitous in legal practice and are particularly salient opportunities to deploy the procedure. Provisional sentence is indeed a well-tailored arrow, belonging in every practitioner’s quiver.
Frederik van Dyk BA Law LLB (SU) is a candidate legal practitioner at Smit Sewgoolam Inc in Johannesburg.
This article was first published in De Rebus in 2024 (Jan/Feb) DR 18.
