IN THE HIGH COURT OF SOUTH AFRICA 
[CAPE OF GOOD HOPE PROVINCIAL DIVISION]

CASE NO: 14918/2008

In the matter between:

and

THE MINISTER OF JUSTICE AND 

THE SHERIFF FOR THE MAGISTERIAL 

THE REGSITRAR OF THE HIGH 

[1] On 15 September 2008 the applicant launched an application in which the following orders are sought in the Notice of Motion:

1.1.	that it permits a plaintiff who has been granted provisional sentence automatically, by operation of law, to execute the provisional sentence judgment in circumstances in which there is potentiality of irreparable harm or prejudice being sustained by the defendant without the intervention or 	protection of judicial oversight to limit such irreparable 	harm or prejudice; and
1.2.	that it requires in all cases for a defendant to have satisfied the amount of the judgment of provisional sentence and taxed costs before being entitled to enter into the principal case;

2. a declaration that the writ of execution issued by the Fourth Respondent on 20 August 2008 in Case Number 11457/08 is unlawful, inconsistent with the Constitution and invalid;
3. a review and setting aside of the decision of the Fourth Respondent on 20 August 2008 to issue a writ of execution in Case Number 11457/08;
4. an order that the First Respondent and any other Respondent who opposes the application pay the costs hereof.

[2] The First Respondent filed a Notice of Intention to Oppose on 23 September 2008. The Second Respondent filed its Notice of Intention to Oppose on 25 September 2008. On 29 September 2008, the Second Respondent, filed a Notice of Withdrawal of Notice to Oppose and a Notice of Intention to Abide.
[3] On 15 October 2008, an answering affidavit on behalf of the First Respondent was filed. On 29 October 2008, the Applicant filed his replying affidavit. On 17 February 2009, an answering affidavit was filed on behalf of Second Respondent. The Applicant contends that this answering affidavit was filed out of sequence, out of time and without any application for condonation. Moreover, although the Second Respondent gave notice of his intention to abide the decision of this Court, the answering affidavit concludes with a prayer that the Applicant's application be dismissed. In the Heads of Argument filed on behalf of the Second Respondent it is, however, made clear that the Second Respondent does not oppose the application and will abide the decision of the Court.

The background

[4] After a trial before the Family Division of the High Court of Justice in the United Kingdom, the First Respondent obtained a judgment sounding in money against the Applicant. The Applicant thereafter exhausted his remedies in the United Kingdom in seeking to appeal the judgment, without success.

[6] On Wednesday, 20 August 2008, the First Respondent pursuant to the provisional sentence obtained from the Fourth Respondent a writ of execution over the Applicant's movable property, and pursuant to the writ attached certain movable property.
[7] On 15 September 2008, this application and an application for leave to appeal against the provisional sentence to the Supreme Court of Appeal, were launched. The application for leave to appeal was dismissed in a judgment delivered on 11 May 2009.
[8] The Applicant has not availed himself of the opportunity afforded by Rule 8(10) and (11) to enter into the principal case.
[9] The Applicant's case turns on Rules 8(9) to 8(11) of the Uniform Rules of Court. These sub-rules provide as follows:
9)	
10)	Any person against whom provisional sentence has been granted may enter into the principal case only if he shall have satisfied the amount of the judgment of provisional sentence and taxed costs, or if the plaintiff on demand fails to furnish due security in terms of subrule (9).
11)	
[10] The essence of the Applicant's case is stated as follows in the Heads of Argument filed on his behalf:

In summary, the Applicant contends that the Uniform Rules, properly interpreted, and for that matter the common law, do not authorise the execution of a provisional sentence until it has become a final judgment.

[12] The Applicant accordingly submits that the writ of execution issued by the Fourth Respondent on 20 August 2008 was issued unlawfully as there are no rules of Court or other provisions which authorised the issue of the writ at the time; that is, prior to the lapse of the period of two months.
[13] The Applicant further submits that if this Court were to accept that the issue of the writ of execution was unlawful, then, consistent with the principles of avoidance and reading down, the Court should not proceed to consider the constitutionality of Rule 8. If, on the other hand, the Court were to find that the issue of the writ of execution was lawful and that the Uniform Rules permit the execution of provisional sentence prior to it becoming a final judgment, then, in the alternative, the Applicant submits that Rule 8 is inconsistent with the Constitution and invalid to the extent that it unjustifiably violates a defendant's right to a fair hearing in terms of sec 34 of the Constitution. The Applicant accordingly, in the alternative, seeks an order, as set out in his Heads of Argument, in terms of section 172(a)(1) of the Constitution that the writ of execution issued by the Fourth Respondent on 20 August 2009 in favour of the First Respondent is inconsistent with the Constitution and invalid.

[14] It needs to be observed that in oral argument at the hearing of the application, and in their Heads of Argument, Applicant's counsel confined themselves to the issue of the validity of the writ of execution issued by the Fourth Respondent on 20 August 2009 in favour of the First Respondent. The wider relief envisaged in paragraph 1.2 of the Notice of Motion was not canvassed in any detail.

[15] The Applicant's case that a plaintiff is not entitled under Rule 8, nor for that matter under the common law, to obtain payment forthwith of the amount of the provisional sentence or to have a writ of execution executed until such time as the provisional sentence has become a final judgment, flies in the face of the very essence of the theory, history and practice of provisional sentence.

	it is granted on the presumption of the genuineness and the legal validity of the documents produced to the Court. The Court is provisionally satisfied that the 	creditor will succeed in the principal suit.
The debtor, who is sued on his own signature or a public document, must acknowledge or deny his signature, or the execution of the document, so that, if he cannot deny his signature -

	he is condemned by provision, that is preliminarily to pay the money due
by the document, and thus make provisional payment to the plaintiff under security of restoring the money if afterwards by a definite and final judgment, that is in the principal case, it should be decided that the money was not owing.

	the acknowledgement of the writing and the presumption of debt which springs from it are the foundations for laying on the duty of payment under security.

It was one of a number of interlocutory proceedings whereby interim relief could be obtained pending final determination of an action	

In the light of the foregoing, Grosskopf J says that -

	The position under Roman-Dutch law was accordingly clear. If a plaintiff was unable 	to provide security .... he was at most entitled to have the amount of his provisional 	claim paid into Court to await the outcome of the proceedings.

	The Administration furthermore intends entering into the principal case.

Innes CJ says that the principle, embodied in the applicable Rule of the Transvaal Supreme Court at the time, that a defendant may only enter appearance to defend the action "after the judgment has satisfied, either by payment or by levy, "simply embodies the common law practice and principle upon this point".

Applicant submitted that it is, accordingly, not open to a plaintiff armed with a provisional sentence to rely on the notion "judgment of the court" as contemplated by Rule 45 when seeking the issue of a writ of execution.

[27] The First Respondent (as plaintiff) was entitled to obtain payment forthwith of the amount of the provisional sentence and to have a writ of execution executed. The writ of execution issued by the Fourth Respondent on 20 August 2008 was accordingly lawfully issued.

[28] As indicated above, the Applicant relies on an alternative submission in the event of this Court finding that the issue of the writ of execution by the Fourth Respondent on 20 August 2008 was lawful and that the Uniform Rules permit the execution of provisional sentence prior to it becoming a final judgment. The Applicant sets out the gist of his alternative submission in the following terms in the Heads of Argument filed on his behalf:

In the alternative, if this Court were to find that the Rules do authorise the execution of provisional sentence before it becomes a final judgment, then it is submitted that those provisions are unconstitutional and invalid to the extent that they prevent defendants who cannot satisfy the provisional sentence and taxed costs from entering into the principal case or, at the very least, to the extent that such provisions could result in a defendant who would be able to satisfy the provisional sentence plus taxed costs, but is prevented from so doing in consequence of the attachment, and possible sale in execution of assets which he or she could employ, i.e. to procure finance in order to put him or her in a position to satisfy the provisional sentence and taxed costs, and then to enter into die principal case.

[29]   Section 34 of the Constitution provides as follows:

Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
The Applicant submits that it is a violation of the rights entrenched in section 34 to allow for execution of any interlocutory order, such as provisional sentence prior to that order becoming a final judgment: all that provisional sentence does is place a burden on the defendant in regard to his ability to enter into the principal case. In this way, the Applicant says, a defendant's dispute with the plaintiff, which has not yet been resolved, would effectively be determined and resolved by the plaintiffs conduct in obtaining a writ of execution. The Applicant further submits that it is in any event unfair to require a defendant to satisfy provisional sentence before he can enter into the principal case. He may have a solid defence to the principal case but because of an inability to satisfy the provisional sentence and taxed costs, he is precluded from even entering into the principal case. This is patently unfair and may work hardship on many defendants. That is an infringement of sec 34 of the Constitution.

[32] The Applicant says that particular sets of circumstances may work hardship upon a defendant faced with execution immediately upon grant of provisional sentence. Such hardship can be avoided (1) by the provisions relating to the provision of security, and (2) by taking recourse to existing and readily available remedies. Rule 45A affords such a remedy: in the situation postulated by the Applicant, the affected defendant may seek an order suspending the execution of the provisional sentence for such period and on such terms as the Court may deem fit.
[33] The Applicant further says that a defendant with a good defence but who is unable to show the probabilities of success at the provisional stage and who lacks the means to satisfy the provisional sentence and enter into the principal case, will be precluded from having his defence adjudicated by a Court. Counsel for the First respondent submitted that the potential infringement of the rights of this (limited) class of defendant can be accommodated by having resort to sec 173 of the Constitution. By virtue of its inherent power to protect and regulate its own process, and to develop the common law, the Court provisional sentence may regulate and develop provisional sentence by permitting those defendants whose rights are potentially infringed in this way to approach the Court to obtain leave to enter into the principal case notwithstanding that the provisional sentence had not been satisfied.
[34] The Applicant is not such a defendant: he has not endeavoured to enter into the principal case: he has assiduous]y avoided revealing thenature of his defence, if any, to the substance of the claim against him, and he has not said (and all indications are that he cannot say) that he is unable to pursue his defence to the action by reason of the requirement of payment of the amount of the provisional sentence against the provision of adequate security.

If I could refuse provisional sentence, I should like to do so. because I am not enamoured of the procedure of provisional sentence. I should like to see the procedure abolished and to see it superseded by new Rules of Court providing a simplified and speedy procedure for hearing actions founded on liquid documents.
What is significant about this observation is that Tindall AJP recognises the need for "a simplified and speedy procedure for hearing actions founded on liquid documents", and proposes an orderly process involving the promulgation of new rules.

[37] If the potential infringement of the rights of certain defendants can be accommodated without jettisoning the undoubted benefits of provisional sentence, the Court should follow that route. The shortcomings of provisional sentence are not to be dealt with by setting aside as unconstitutional a single or subsidiary feature of the process, leaving on the face of it the rest of the edifice untouched, but in fact emasculating the entire process. This is what will happen if applications of the kind made in this matter were to be granted: it would be an order "which will in effect change the nature of the judgment for provisional sentence". If changes are to be made, the route envisaged by Tindall AJP ought to be followed.

[38]  In the result, I make the following order:

The application is dismissed. The Applicant must pay the costs of the First Respondent, such costs to include the costs occasioned by the employment of two counsel.