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[2009] ZAGPPHC 362
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Ngcai v Minister Of Finance and Another (46640/09) [2009] ZAGPPHC 362 (11 December 2009)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NUMBER 46640/09
DATE:
11 DECEMBER 2009
NOT
REPORTABLE
in
the matter between:
SAZI
SONWABISO NGCAI
PLAINTIFF
And
MINISTER
OF
FINANCE
FIRST
DEFENDENT
LIZETTE
LABUSCAHGNE
DEFENDENT
JUDGMENT
TLHAPI
AJ
[1]
The plaintiff issued a provisional sentence summons against the
defencants for failing to honour a promissory note. The first
defendant was called upon to pay immediately to the plaintiff an
amount of R1 000 000 000 together with interest at the rate of
15 5%
as from the date of delivery of the summons. The summons was served
by the sheriff on the defendants on 5 August 2009.
[2]
The Cause of action reads:
“
Cause
of action arose within the jurisdiction of this Honourable Court in
that on the 22 May 2009 at Ministry of Finance 17
th
Floor,
240 Vermeulen Street. Pretoria, the Plaintiff presented a Demand
draft-Promissor Note ( annexed herein) to the 2
nd
Respondent. Lizzette Labuscahgne, who was acting within the course
and scope of his employment at Ministry of Finance (i.e. Processing
N.R.F transactions). The promissory note was dishonoured by
non-acceptance or non-payment.
The
plaintiff herein invoke ACT 181 (3) Constitution of R.S.A 1996 which
states on Auditor General that other organs of state, through
legislative and other measures, must assist and protect these
institutions to ensure independence, impartiality, dignity and
effectiveness
of these institutions. The plaintiff further invokes
ACT 181 (4) of R.S.A Consitution of 1996 which states on the Auditor
General-No
person or organ of state may interfere with functioning of
these institutions.
[3]
The promissory note reads:
PROMISSORY
NOTE
[DEMAND DRAFT]
I
Sazi Sonwabiso Ngcai [Successor],
Highest and Executive Organ of State [R.S.A.] I.D. No. [….........]
which observes '
International
Cusctomary Law'
Deemed through
'Schedule 6 of Constotion of R.S.A. of 1996 and Prospectus of Mr
Ngcai
on official Mandate and tactily
endorsed
by Presidency (R.S.A.) Hon President Thabo MbeKi Ref Registrar 174913
+ President of Senate Parliament of Australia Australia Hon.
Senatore
Alan Ferguson s office (See. E-mail of Thu July 31, 2008 @ 09:43
'
Acknowledged
on Prospectus of Mr SS Ngcai)+ Royal Proclamation Agreement with
Founder & Trustee Member South African Institute of Government
Auditors & On Agency & On Delegation through Act 238
Constitution of R S.A of 1996 Ex- Auditor General Mr W.Z. Yako (See
Prospectus)
N.B.
Promissory Note has a
Legal Guarantee
from South African Defence Force (SANDF) by Joint Operational
Tactical Headquaters' [Intelligence - JTA] [Eastern Cape] See.
Prospectus.)
ORDERS:
A bank and or Minister of Finance
[R.S.A.] I through Act 213
(2i
B Constitution of R S.A of 1996 to make a direct withdrawal/charge
fo
f
Expenses and Income for 2009-2010 from;
Sum:
R1 000 000 000 from National Revenue Fund (N.R.F.)
Ac
count
name:
[…................]
Bank:
[…................]
Branch
Cod
e: […................]
Street
Address
: […................]
Swift
Code:
[…................]
Account
Number:
[…................]
First
Allow for Transactional Charges thereafter Deposit/Pav
Balance @
Bank
[…................]
Branch […................]
Account
Type:
[…................]
Account Number:[…................]
Account
name
[…................]
On
Demand
“
[4]
The Director-General and Accounting Officer of the first defendant,
Mr EL Kganyago ('Kganyago) deposed to the opposing affidavit.
Points
in limine were raised that the plaintiff was not entitled to follow
the provisional sentence summons route in that:
1
The summons was materially defective
factually and legally unsustainable;
2
The promissory note annexed to the
summons was not a liquid document and not a valid negotiable
instrument contemplated in the Bills
of Exchange Act 34 of 1964.(‘the
Act’) for the following reasons;
2
.
1
the document was not signed by tne defendant or ms agent or
government authority who had authority to withdraw funds from the
National Revenue Fund, the withdrawal of such an amount from the
National Revenue Fund had to be preceded by a budgetary process
as
envisaged in terms of section 213 of the Constitution and
section 27
of the
Public Finance Management Act 1 of 1999
;
2.2
the document did not indicate any acknowledgement of debt which was
unconditional and was for a fixed amount;
3
The plaintiff lacked the necessary locus
standi in that he failed in the summons, to set out the basis upon
which he holds the purported
promissory note.
4
The piaintiff invoked Sections 181 (3)
and (4) of the Constitution but did not explain why these provisions
support his case;
5
The promissory note anc prospectus
attached to the summons were a compilation of incomprehensible
documents;
[5]
The defendants denied that they were in any way iiaole for payment of
the amount demanded;
[6]
Before proceeding with any submission in regard to this matter, the
court, in my view, is expected first to establish and satisfy
itself
that the provisional sentence summons and the document annexed to
such summons and upon which the plaintiff relies for the
grant of an
order conforms to the requirements of rule 8 of the Rules of Court In
this instance the court should further satisfy
itself that the
document annexed to the summons is what it purports to be a
promissory note as contemplated in section 87 of the
Act. This is
aptly put in In Harrowsmith v Ceres Flats (Pty) Ltd
1979 (2) SA 722
(T) at 728 C-D and Van der Walt v Eiendomsreg (Edms) Bpk
1986 (2) SA
461
(T) at 465 D-H.
“
The
theory behind provisional sentence ;s that it is granted on the
presumption of the genuineness of 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
debt disclosed in
the documents must therefore be unconditional and liquid (zuiwer en
klaar or liquid). It is proved either by
an admission of the debtor
or considered as acknowledged by him.”
[7]
The defendant correctly submitted that the plaintiff did not have the
necessary locus standi because the provisional sentence
summons
failed to set out the basis upon which the plaintiff held the
promissory and the said promissory note' annexed was not
a liquid
document. It did not comply with the requirements of the Act.
1
Section 87 (1) of the Act defines a
promissory as
“
A
promissory note is an unconditional promise in writing made by one
person to another, signed by the maker and engaging to pay
on demand
or at a fixed or determinable future time a sum certain in money to a
specified person or his order or to bearer,”
The
plaintiff s 'promissory note' did not comply with the provisions of
section 87(1). It was not a document where any one of the
defendants
had promised to pay the plaintiff at a fixed time and on demand a
certain amount of money It is not a liquid document.
Plaintiff is the
author of the purported promissory note. He cannot be the author and
beneficiary (payee/ drawee ) thereof at same
time.
2
Section 87(2) of the Act provides
“
An
instrument in the form of a note payable to maker s order is not a
note within the meaning of this section unless and until it
is
endorsed by the maker,”
The
'promissory note' was not endorsed by any of the defendants.
3
Section 88 of the Act provides
“
A
note is inchoate and incomplete until delivery thereof to the payee
or bearer"
The
'promissory note' was not delivered to the plaintiff by any of the
defendants and no allegation in this regard is mentioned
in the
provisional sentence summons. The action can theiefore not succeed
[8]
In the premises the following order is given:
'The
provisional sentence is dismissed with costs'
TLHAPI,
V
(ACTING
JUDGE OF THE HIGH COURT)