IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2023-086644
In the matter between:
GLOBAL MICRO SOLUTIONS PROPRIETARY LIMITED
(Registration number: 1995/005280/07) Plaintiff
and
AVENG AND LENNINGS RAIL PROPRIETARY LIMITED
(Registration Number: 2018/585611/07) First Defendant
MATHUPHA CAPITAL PROPRIETARY LIMITED
(Registration Number: 2010/0233850/07) Second Defendant
Delivered: 14 November 2025 – This judgment is handed down electronically by
circulation to the parties' representatives via email and uploading it to CaseLines.
ORDER
1. Provisional sentence is entered against the first and second defendants, jointly
and severally, in favour of the plaintiff, in the amount of R653 572.00.
2. The first and second defendants are ordered to pay interest on the amount of
R653 572.00 at the rate of 11.75% per annum, calculated from 1 July 2023.
3. Provisional sentence is refused in respect of the balance of the claim and
interest thereon.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
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4. The first and second defendants are permitted to deliver a plea to the balance
of the claim and interest thereon within 20 days from judgment.
5. The first and second defendants are liable, jointly and severally, for the costs
of the provisional sentence proceedings on the scale as between attorney and
client.
JUDGMENT
BESTER AJ:
Introduction
[1] The plaintiff sues for provisional sentence against the first defendant, founding
its claim upon a written acknowledgment of debt. It also seeks provisional sentence
against the second defendant, as surety and co- principal debtor for the same debt,
based upon a suretyship embodied in the same document. The defendants admit that
the document was signed on behalf of both the first and second defendants.
[2] Summons was originally issued for payment of R3 880 098.56. Consequent
upon a payment, the plaintiff persists with a claim in the amount of R3 693 515.60.
[3] The defendants raise several defences. They contend that various clauses of
the acknowledgement of debt are void for vagueness and consequently the entire
document is void for vagueness; they deny that it is a liquid document; they contend
that certain clauses sought to be enforced constitute penalty stipulations under the
Conventional Penalties Act, 15 of 1962 which should be reduced to nil or alternatively
are contrary to public policy and not enforceable; and they contend that the document
was signed in circumstances that amounted to severe economic duress, rendering the
document unenforceable.
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Provisional summons
[4] Rule 8 governs the procedure for obtaining provisional sentence in the High
Court and has not altered the principles of our common law.1
[5] The theory behind provisional sentence is that –
“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 debt disclosed in the documents
must therefore be unconditional and liquid (zuiwer en klaar of liquid).”
2
[6] A document is liquid for purposes of provisional sentence –
“If the document in question, upon a proper construction thereof, evidences by
its terms, and without resort to evidence extrinsic thereto, is an unconditional
acknowledgment of indebtedness in an ascertained amount of money, the
payment of which is due to the creditor.”
3
[7] The onus is on the plaintiff to prove that the document relied upon is genuine
(an issue not in dispute here) and that, on the fac e of the document, the amount
claimed is owing.4
[8] Where a defendant relies on a defence which goes beyond the liquid document,
it is required to produce sufficient proof of that defence to satisfy the court that the
probability of success, in the principal case, is against the plaintiff , before provisional
sentence can be refused.5
1 Twee Jonge Gezellen v Land & Agricultural Development Bank 2011 (3) SA 1 (CC) at [12].
2 Harrowsmith v Ceres Flats (Pty) Ltd 1979 (2) SA 722 (T) at 728C-D, quoted with approval in Joob Joob
Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA) at [26].
3 Rich and Others v Lagerwey 1974 (4) SA 748 (A) at 754H. Approved in Joob Joob above in [26] and Twee Jonge
Gezellen above in [15].
4 Twee Jonge Gazellen above in [20].
5 Twee Jonge Gezellen above in [21]. In Twee Jonge Gazellen, the Constitutional Court found that a court has a
discretion to refuse provisional sentence in specified circumstances, not relevant here.
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The acknowledgment of debt
[9] In clause 1 of the acknowledgment of debt, the first defendant acknowledged
to be truly indebted in favour of the plaintiff in the sum of R653 572.00 –
“… as is reflected on the statement attached hereto, indicating the total arrear
amount as at date hereof, being the agreed indebtedness due, owing and
payable by ourselves to the Creditor in respect of Services rendered up to 30
June 2023 and being in arrears (“total arrears”).”
[10] The attached statement runs from 1 January 2023 to 1 May 2023, and reflects
a balance due of R855 318.00. The only match with the amount stipulated in clause
1 of the acknowledgement of debt, namely R653 572.00, is found in the running
balance as at 1 April 2023.
[11] In terms of clause 7, the first defendant consented to judgment for “the
outstanding amount at the relevant time”, together with “interest at Prime plus 2%” and
costs on the attorney and own client scale.
[12] Clause 8 provides that the first defendant undertook to pay the “outstanding
amount and interest” in monthly instalments of R113 177.00, commencing on 1 June
2023, until the total arrear debt with interest and costs have been paid” . The first
defendant further undertook to pay “the current indebtedness through monthly billing
in addition to the payment of total arrears”.
[13] Clause 9 stipulates that, in the event of any instalment on the arrears or current
indebtedness not being made, “the full amount per all agreements (acceleration of the
Master Agreement together with the total arrears payment arrangement and any
ancillary agreements to the Master Agreement) will become immediately due and
payable”. The clause continues as follows:
“For avoidance of doubt, a schedule of the total current indebtedness is
attached hereto (“current indebtedness”). This sets out the total contractual
obligation of the Debtor to the Creditor, regardless of the date of cancellation
of any service, due to whatsoever reason. The calculations in the schedule
of any service, due to whatsoever reason. The calculations in the schedule
exclude the total arrears.”
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[14] The attached schedule contains a table listing a number of entries, with
descriptions of what appear to be services still to be rendered, totalling R3 226 526.56.
This amount, together with the R653 572.00 referred to in clause 1, brings the
summons amount to R3 880 098.56.
[15] In terms of clause 10, the amounts due “per Master and ancillary agreements
are influenced by foreign exchange rates and annual escalation (invoiced in August to
take effect as of September)”. It further stipulates that t he actual amounts on
acceleration may differ from those quoted in the schedule initially.
[16] In terms of clause 11, the second defendant bound itself to the creditor as surety
and co-principal debtor in solidum for the due and proper performance of all the first
defendant’s obligations. The defendants further agreed that the amount owing may
be proven by a certificate issued on behalf of the plaintiff.
Is the acknowledgment of debt void for vagueness?
[17] The defendants raise three points in support of their argument that the
acknowledgment of debt is void for vagueness. First, they contend that the reference
to a ‘schedule’ in clauses 9 and 10 is vague, because it is not clear what is referred to.
They argue that it is no t clear that the table, which is the second attachment to the
acknowledgement of debt, is the schedule. The proposition has no merit. The
acknowledgment of debt has two attachments. The one is clearly the statement
referred to in clause 1, and the other is the schedule referred to in clauses 9 and 10.
There is no ambiguity or uncertainty.
[18] The second challenge is made with reference to ‘monthly billing’, used in
clauses 8 and 9. This concept, upon my reading of the acknowledgment of debt, refers
to the monthly invoicing of the plaintiff to the first defendant under the various
agreements referred to in clauses 9 and 10 (the “Master and ancillary agreements”).
agreements referred to in clauses 9 and 10 (the “Master and ancillary agreements”).
[19] Finally, the defendants point out that clause 7 requires interest to be calculated
“at Prime plus 2%” , but that the document does not define ‘Prime'. The proposition
appears to me to be sound. However, I do not agree with the defendants that this
renders the contract void for vagueness. In my judgment, the interest rate can easily
6
be resolved, either with minimal evidence or perhaps even with reference to some of
the other contracts referred to in the acknowledgment of debt.
[20] In Namibian Minerals Corp6 Harms JA, for the majority, remarked:
“Businessmen are often content to conduct their affairs with only vague or
incomplete agreements in hand. They then tend to rely on hoke, good spirits,
bona fides and commercial expediency to make such agreements work. But
when they are at loggerheads, it appears to be futile to consider whether they
would have been able to do so. Once a Court is called upon to determine whether
an agreement is fatally vague or not, it must have regard to a number of factual
and policy considerations. These include the parties’ initial desire to have
entered into a binding legal relationship; that many contracts (such as sale, lease
or partnership) are governed by legally implied terms and do not require much by
way of agreement to be binding…; that many agreements contain tacit terms
(such as those relating to reasonableness); that language is inherently flexible
and should be approached sensibly and fairly; that contracts are not concluded
on the supposition that there will be litigation; and that the court should striv e to
uphold – and not destroy – bargains.”
7
[21] Our courts have often referred to the judgments in Hillas & Co.8 Lord Wright
remarked:9
“Businessmen often record the most important agreements in crude and
summary fashion; modes of expressions sufficient and clear to them in the
course of their business may appear to those unfamiliar with the business far
from complete or precise. It is, accordingly, the duty of the court to construe
such documents fairly and broadly, without being too astute or subtle in finding
defects; …”
6 Namibian Minerals Corp Limited v Benguela Concessions Limited 1997 (2) SA 548 (A) at 561G-I.
7 References omitted.
8 Hillas & Co Limited v Archos Limited [1932] All ER Rep 494 (HL). See for instance Namibian Minerals Corp
above at 561J-562J.
9 At 503J.This, of course, does not mean that the court will make a contract for the parties. See Natal Joint Municipal
Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) in [18]
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[22] I conclude that the acknowledgment of debt is not too vague to be enforceable.
In the words of Nugent AJA in De Beer10:
“An agreement that is expressed in words that are capable of various meanings
when they are viewed in isolation is not for that reason alone too vague to be
enforced. The proper meaning of words that might at first sight appear to be
ambiguous, or ill- defined, or otherwise vague, might often emerge when the
words are seen in their context, or against the background to the transaction, or
when they are linked by admissible evidence to the circumstances in which they
were intended to apply.”
Is the acknowledgment of debt a liquid document?
[23] The acknowledgement of debt will be liquid if, in its terms, it reflects an
unconditional acknowledgment of an indebtedness in an ascertained amount of
money. C lause 1 of the acknowledgement of debt contains such an unequivocal
acknowledgement of a debt in the amount of R653 572.00. This much was conceded
in argument.
[24] Clause 8 further contains an undertaking to pay the current indebtedness,
which is defined in clause 9 as the full amount to be paid under the range of contract
between the plaintiff and the first defendant. The amount is set out in the schedule,
according to clause 9. The schedule stipulates the amount as R3 226 526.56. There
is no prohibition on an acknowledgement of a future indebtedness or where the
consideration is executory.11
[25] The acknowledgement of debt contains the condition that the whole of the
arrear indebtedness and the current indebtedness become due upon a failure to make
a timeous payment, as stipulated for each debt. Although the ‘monthly billing’ in
respect of the current indebtedness seems to require extrinsic evidence, the failure to
timeously pay an instalment on the arrear indebtedness constitutes the fulfilment of a
10 De Beer v Keyser 2002 (1) SA 827 (SCA) at 834 in [13].
11 Caltex (Africa) Ltd v Trade Fair Motors (Pvt) Ltd 1963 (1) SA 36 (SR).
8
simple condition, which does not affect the liquidity of the document. 12 The failure to
make the timeous payment is not disputed.
[26] The interest rate is not evident from the acknowledgement of debt, as has been
shown above. It is a separate and distinct indebtedness that, on its own, needs to be
evident fr om the document. 13 The acknowledgement of debt is thus not a liquid
document in respect of the interest claim.
[27] T he parties agreed that the current indebtedness is subject to foreign exchange
rates and an annual escalation (clause 10), which will be evidenced by a certificate.
As Mr Hollander, who appeared for the defendants, rightly conceded, since the plaintiff
does not rely on such an adjustment, the document remains liquid in respect of the
current indebtedness.
[28] In the result, I conclude that the acknowledgment of debt is a liquid document
for the principal sum claimed, but not for the interest.
Does clause 9 contain a conventional penalty provision?
[29] C lause 9 provides that, upon a default, the whole of the future claims against
the defendants become payable, irrespective of whether services have been or ever
will be rendered. This, the defendants contend, constitutes a conventional penalty.
They claim that the penalty is disproportional to the plaintiff’s prejudice, and should be
reduced to nil.
[30] Section 1 of the Conventional Penalties Act, 15 of 1962, stipulates that a
conventional penalty is enforceable. Section 3 provides that an excessive penalty may
be reduced:
“If upon the hearing of a claim for a penalty, it appears to the court that such
penalty is out of proportion to the prejudice suffered by the creditor by reason
of the act or omission in respect of which the penalty was stipulated, the court
may reduce the penalty to such extent as it may consider equitable in the
circumstances: Provided that in determining the extent of such prejudice the
12 Harrowsmith above at 729H.
12 Harrowsmith above at 729H.
13 Wedge Steel (Pty) Ltd v Wepener 1991 (3) SA 444 (W) at 446H-J.
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court shall take into consideration not only the creditor’s proprietary interest but
every other rightful interest which may be affected by the act of omission in
question.”
[31] It appears from the schedule that the plaintiff’s obligations to render services as
counter-performance stretch into the future, some until the end of March 2026. Thus,
as at the time of calling for payment under the acceleration clause in July 2023, a
substantial portion of the performance still had to be rendered, and may never be
rendered. In my view, payment of such amounts constitutes a penalty. Furthermore,
given the timeframe and the fact that a substantial proportion of the plaintiff’s
obligations still lay in the future when the debt was called up, there is ample room to
be concerned that the penalty is disproportional to the plaintiff’s prejudice.
[32] In these circumstances, the court is obliged to investigate the circumstances 14
and provisional sentence would not be appropriate15. Therefore, in respect of the claim
for the current indebtedness, provisional sentence should not be granted.
Is the defence of duress available to the defendants?
[33] In Medscheme16 Nugent JA, for the court, pointed out that the principle of
economic pressure as duress has not been authoritatively accepted in our law. He
continued that there seems to be no principled reason why the threat of economic ruin
should not, in appropriate cases , be recognised as duress, but that such cases are
likely to be rare. This is so because:
“For it is not unlawful, in general, to cause economic harm, or even to cause
economic ruin, to another, nor can it generally be unconscionable to do so in a
competitive economy. In commercial bargaining the exercise of free will (if that
can ever exist in any pure form of the term) is always fettered to some degree
by the expectation of gain or the fear of loss. I agree with Van den Heever AG
(in Van den Berg & Kie R ekenkundige Beamptes
17 at 795E-796A) that hard
(in Van den Berg & Kie R ekenkundige Beamptes
17 at 795E-796A) that hard
bargaining is not the equivalent of duress, and that is so even where the bargain
is the product of an imbalance in bargaining power. Something more – which
14 Matthews v Pretorius 1984 (3) SA 547 (W).
15 See Du Plessis v Oribi Motors (Pty) Ltd 1972 (3) S A 75 (N).
16 Medscheme Holdings (Pty) Ltd and Another v Bhamjee 2005 (5) SA 339 (SCA) in [18].
17 Van den Berg & Kie Rekenkundige Beamptes v Boonprops 1028 BK 1999 (1) SA 780 (T).
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is absent in this case – would need to be exist for economic bargaining to be
illegitimate or unconscionable and thus to constituted duress.”
[34] The deponent to the defendants’ affidavit opposing provisional sentence, Mr
Barnard, contends for economic duress, on the basis that, when the first defendant fell
into arrears and was unable to pay the plaintiff, the plaintiff refused to give it access to
its email accounts (which, apparently, was under the practical control of the plaintiff,
who rendered inter alia services related thereto to the first defendant ), unless the
acknowledgement was signed. The first defendant could not conduct its business as
a result, according to Mr Barnard. He contends that the first respondent was , as a
result, under duress to sign the acknowledgment of debt, which was unconscionable
in the circumstances.
[35] The opposing affidavit does not provide any primary facts to show how the first
respondent was unable to conduct its business whilst unable to access its email
accounts. It is difficult to see that th is, without more, would hamper the first
defendant’s business to the extent alleged by Mr Barnard.
[36] I am thus not convinced that the defendants produced sufficient proof that this
defence will probably succeed in the principal case. In the result, I do not consider the
defendants’ reliance on economic duress as a basis to refuse the plaintiff provisional
sentence on the amount acknowledged to be owed in clause 1 of the
acknowledgement of debt.
Conclusion
[37] I find that the acknowledgement of debt is a liquid document for the capital
amounts claimed, but not for the interest thereon. As the interest rate is not set out in
the acknowledgment of debt, interest should run at the legal mora rate. However, the
amount owed as current indebtedness constitutes a penalty under the Conventional
Penalties Act, and an enquiry into a possible reduction should be made.
Penalties Act, and an enquiry into a possible reduction should be made.
[38] The second defendant bound itself to pay the acknowledged debts and is thus
bound by the liquid document.
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[39] The plaintiff has been substantially successful, and the costs should follow on
the scale agreed upon.
[40] I therefore make the following order:
a) Provisional sentence is entered against the first and second defendants,
jointly and severally, in favour of the plaintiff, in the amount of R653 572.00.
b) The first and second defendants are ordered to pay interest on the
amount of R653 572.00 at the rate of 11.75% per annum, calculated from 1 July
2023.
c) Provisional sentence is refused in respect of the balance of the claim
and interest thereon.
d) The first and second defendants are permitted to deliver a plea to the
balance of the claim and interest thereon within 20 days from judgment.
e) The first and second defendants are liable, jointly and severally, for the
costs of the provisional sentence proceedings on the scale as between attorney
and client.
________________________________________
A Bester
Acting Judge of the High Court of South Africa
Gauteng Local Division, Johannesburg
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Heard: 3 September 2024
Judgment Date: 14 November 2025
Counsel for the Applicant: A Ngidi, instructed by Werksmans
Attorneys.
Counsel for the Respondents: L Hollander, instructed by Swartz Weil Van
Der Merwe Greenberg Inc. Attorneys