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REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT

JOHANNESBURG

 

CASE NO: 14443/13

  

In the matter between:

 

ESTER BITTON	Plaintiff
and
ODED YAKOV	First Defendant
MONIQUE YAKOV	Second Defendant

 

JUDGEMENT

 

CARSTENSEN AJ:

1. The Plaintiff seeks provisional sentence in the amount of R508 675.00.

2. The Plaintiff’s cause of action arises out of an acknowledgement of debt signed by the Defendants in favour of the Plaintiff on the 3^rd of September 2012.

3. The counsel, Mr Jorge on behalf of the Plaintiff and Mr McTurk on behalf of the Defendant, agreed that the provisions of the National Credit Act 34 of 2005 do not apply in this instance.

4. Although there was argument addressed on the amount of the indebtedness, (being the balance owed after payments made by the Defendants to the Plaintiff), it is apparent that this aspect can be resolved by accepting that the Defendants paid an amount of R100 000.00 and then a further amount of R21 325.00 to the Plaintiff.  This would leave the balance as claimed by the Plaintiff.

4.1.  The Defendants contended (apart from disputing that the indebtedness was unconditional), that the amount of R630 000.00 must be reduced by the amount of R121 325.00 and the amount of R21 325.00. 

4.2.  The Defendants, however, provided no proof of the payment of these two amounts and the Plaintiff, who accepts that certain payments have been made, persists in claiming an amount of R508 675.00, an amount less than set out in the acknowledgement of debt. 

4.3.  I pay no regard to the certificate clause which makes the certificate of indebtedness conclusive proof.  Consequently, in my view, that clause is contra bones mores.

5. The core issue in this matter is whether the acknowledgement of debt, annexure A to the provisional sentence summons, is a liquid document.  The document contains the following clauses:

5.1.  “1.1  The debtors hereby acknowledge and admit that the capital sum is due, owing and payable by the debtor to the creditor”.

5.2.  “2.1… the repayment of the money as stipulated herein and by virtue of this clause, is not meant to make repayment of the loan subject to the sale of the stock referred to herein”.

6. Those clauses stand in stark contrast to clause 2.1:  “The debtors agree to pay the capital amount immediately upon the sale of stock held as at date of signature hereof in Lipawn Cash Loan CC and within a reasonable time, whether in instalments or in lump sum payments, …”.

7. It was agreed by counsel during argument that payment was due upon the sale of stock and indeed, this is emphasised in paragraph 1.2.1 of the summons and both paragraphs 9.3 and 13.1 of the reply.

8. Consequently, it is necessary to determine when the sale of stock took place as that is the trigger which causes “immediate” payment of the capital amount.

9. In Rich v Lagerwey, 1974 (4) SA 748 (A) at 754 H the court found that, in order to be unconditional document, the document must, on a proper construction thereof, evidenced by its terms, and without resorting to evidence extrinsic thereto, be an unconditional acknowledgement of indebtedness in an ascertainable amount of money, the payment of which is due to the creditor.

10.  Although the first two requirements have been met, the third in my view is not.

11.  There is no question that on a proper interpretation of the acknowledgement of debt, as a whole, payment only becomes due on the sale of stock.  I accept that the funds from the sale of stock do not necessarily need to fund the repayment but the sale of stock renders the repayment due and thus until this stock is sold, payment is not due, although owing.

12.  In order to ascertain whether or not the stock is sold, one must take into account and refer to extrinsic evidence.  No such evidence was placed before me.

13.  Consequently, the acknowledgement of debt does not meet all three requirements of a liquid document and in the premises, the Plaintiff is not entitled to provisional sentence.

14.  In the result, I order:

14.1. provisional sentence is refused;

14.2. the Defendants are ordered to file a plea within 10 (TEN) days from date hereof;

14.3. costs of this action, including argument, are reserved for determination by the trial court.

 

P L CARSTENSEN

ACTING JUDGE OF THE

HIGH COURT

 

 

HEARD:  28 MAY 2013

DELIVERED:  3 JUNE 2013

 

COUNSEL FOR PLAINTIFF: ADV. M. JORGE

INSTRUCTED BY: AFZAL LAHREE ATTORNEYS

 

COUNSEL FOR DEFENDANTS: ADV. C McTURK

INSTRUCTED BY: PULE INC.

 

 

 

 (jmt.29.5.13)

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