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[2011] ZACC 2
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Twee Jonge Gezellen (Pty) Ltd and Another v Land and Agricultural Development Bank of South Africa t/a The Land Bank and Another (CCT 68/10) [2011] ZACC 2; 2011 (5) BCLR 505 (CC) ; 2011 (3) SA 1 (CC) (22 February 2011)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 68/10
[2011] ZACC 2
In the matter between:
TWEE JONGE GEZELLEN (PTY) LTD
…................................................
First
Applicant
NICOLAS CHARLES KRONE
…...........................................................
Second
Applicant
and
LAND AND AGRICULTURAL
DEVELOPMENT BANK OF SOUTH AFRICA t/a
THE LAND BANK
…...............................................................................
First
Respondent
MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
…..........................................
Second
Respondent
Heard on : 18 November 2010
Decided on : 22 February 2011
JUDGMENT
BRAND AJ:
Introduction
[1] This
is an application for leave to appeal against the judgment and order
of the Western Cape High Court (High Court), Cape
Town on 24 November
2009.
1
[2] What
the applicants unsuccessfully sought in the High Court was an order
declaring the common law remedy of provisional sentence
and rule 8 of
the Uniform Rules of the High Court (the Rules) inconsistent, and
therefore invalid, with the right to a fair hearing,
2
the right to equality before the law and to equal protection and
benefit of the law
3
and therefore invalid.
4
Their application to appeal to the Supreme Court of Appeal was
likewise unsuccessful.
5
The order the applicants now seek in this Court is substantially
narrower, yet still comes down to a constitutional challenge to
the
provisional sentence procedure. The precise nature of this challenge
will be better understood against the background facts
and the common
law principles pertaining to provisional sentence. I therefore
propose to deal with each of these matters in turn.
But before that,
it is necessary to consider whether leave to appeal should be
granted.
Should
leave to appeal be granted?
[3] Leave
to appeal to this Court will be granted only if two preconditions are
satisfied. The first, which relates to the jurisdiction
of this
Court,
6
is that the case must raise a constitutional matter or an issue
connected with a constitutional matter. The second is that it must
be
in the interests of justice to grant leave.
7
[4] As to
the first requirement, the question squarely raised is whether
provisional sentence is consistent with the rights to equality
and
fair hearing protected by the Constitution. That, in my view, is a
constitutional issue. As to the interests of justice, it
cannot be
gainsaid that provisional sentence is an important part of our civil
procedure. It comes before our courts every day.
Its
constitutionality is therefore of considerable import in everyday
legal practice. In my view, these considerations warrant
the granting
of the application for leave to appeal without further consideration
of the applicants’ prospects of success.
Background
[5] The
first applicant is Twee Jonge Gezellen (Pty) Ltd. It conducts wine
farming operations near Tulbagh in the Western Cape.
The second
applicant, Nicolas Krone, is a director of the first applicant. The
first respondent is the Land and Agricultural Development
Bank of
South Africa trading as the Land Bank (Land Bank).
8
The second respondent is the Minister for Justice and Constitutional
Development (Minister).
[6] On 6
June 2005, Mr Krone signed an acknowledgement of debt in his personal
capacity and on behalf of the first applicant, in
favour of the Land
Bank. In terms of the acknowledgement of debt, the applicants
admitted their liability to the Land Bank, jointly
and severally, for
the sum of R39 714 027,01 as well as for the costs incurred
by the Land Bank in earlier litigation
against the applicants. The
only other provisions of the acknowledgement of debt relevant in the
present proceedings are: (a) an
undertaking by the applicants to pay
the principal debt by way of agreed instalments and (b) a recordal of
the applicants’
consent that their failure to pay any
instalment on the due date would render the balance of the admitted
debt on that date outstanding
immediately due and payable.
Proceedings
before the High Court
[7] On 26
November 2008, the Land Bank issued a provisional sentence summons,
based on the acknowledgement of debt, for the sum
of R37 914 027,01
out of the High Court. One of the allegations in the summons was
that, instead of the aggregate instalments
in excess of R20 million
that the applicants were supposed to have paid by that time to comply
with their undertaking, they had
only paid R1,8 million. In
consequence, the Land Bank contended, the sum claimed, which
represented the balance of the admitted
debt then outstanding, became
due and payable.
[8]
Answering and replying affidavits were filed but these were not
included in the record before this Court. We can nevertheless
glean
from the papers before us and the judgment of the High Court that the
defence on the merits was two-fold:
(a) that the total amount of the Land Bank’s claim in terms of
the acknowledgement of debt had been reduced in terms of an
oral
agreement between the parties to an amount of R20 million; and
(b) that the Land Bank had undertaken to afford the applicants an
extension of time within which to pay the agreed debt of R20
million.
By virtue of this undertaking, the R20 million could not be claimed
without reasonable notice to them. Given the considerable
amount
involved, reasonable notice would call for a period of at least three
months. Since no notice had been given, the institution
of
proceedings was premature.
[9] The
Land Bank denied the factual allegations upon which the applicants
sought to rely for their two defences. Moreover, the
Land Bank
pointed out that the original debt, which gave rise to the
acknowledgement of debt on which it now claimed, was the subject
of
earlier legal proceedings. In those proceedings, so the Land Bank
alleged, the applicants relied on defences essentially similar
to
those they now raise. But prior to the date of the hearing, these
defences were abandoned by the applicants. In consequence
the
applicants signed the acknowledgement of debt for the full amount of
the Land Bank’s claim together with the costs it
incurred in
those earlier proceedings.
[10] Some
months after the replying affidavit had been filed, the applicants
sought and obtained the leave of the High Court to
file additional
papers in order to raise the constitutional issues which eventually
gave rise to this application. In the process,
it also joined the
Minister pursuant to the provisions of rule 10A of the Rules.
9
[11] The
High Court decided against the applicants on both the merits and
their constitutional arguments. To the latter I shall
presently
return. As to the former, the court found that the two defences
raised by the applicants were against the probabilities,
even on the
applicants’ version of the facts.
Provisional
sentence
[12] This brings me to the common law principles pertaining to the
institution of provisional sentence. The procedure for obtaining
this
form of remedy in the High Court is governed by rule 8. I will come
back to some provisions of the rule in more detail. Pertinent
at this
stage, however, is that rule 8 is merely procedural and has not
altered the principles of our common law.
10
[13] Until
recently, provisional sentence was available only in the High Court.
In 1994, however, it was introduced into the Magistrates’
courts
11
through rule 14A of the rules pertaining to those courts.
12
Save for differences relating to time periods, rule 14A reflects the
provisions of High Court rule 8 in all respects. It therefore
requires no special consideration.
[14] The institution of provisional sentence has its origin in early
French law. From there it was received in Holland during the
16
th
century, where it became known as
handvulling
or
namptissement
.
13
As part of the law of Holland, it made its way to the Cape. Since
then, provisional sentence, as an institution, has remained part
of
South African law. The remedy afforded by the institution has, on
occasion, been described as extraordinary.
14
That it is, in the sense that there is no other remedy like it. But,
in the light of its long history and frequent use, it can
hardly be
described as uncommon.
[15] The primary element of provisional sentence, which was inherent
to the institution from the start, is that it is only available
to a
plaintiff who is armed with a liquid document.
15
Over the centuries, the issue whether a particular document can be
described as “liquid” for purposes of provisional
sentence has given rise to much debate in litigation.
16
In principle, however, a document is liquid if it demonstrates, by
its terms, an unconditional acknowledgement of indebtedness
in a
fixed or ascertainable amount of money due to the plaintiff.
17
Many different sorts of documents have been found to qualify as
“liquid” in terms of this definition and therefore
sufficient to found provisional sentence. They include
acknowledgments of debt, mortgage bonds, covering bonds, negotiable
instruments,
foreign court orders and architects’ progress
certificates.
18
[16] Two
further inherent characteristics of provisional sentence have always
rendered it distinguishable from other remedies. The
one is that it
only leads to a provisional or interlocutory order. Final judgment is
still to be considered in the principal case.
In the final instance,
the claim against the defendant can still be dismissed. The other is
that, while on the one hand it entitles
the plaintiff to payment of
the judgment debt immediately, that is, before entering into the
principal case, on the other hand
it affords the defendant the right
to insist on security for repayment pending the final outcome. As
pointed out by Grosskopf J
in
C.G.E. Rhoode Construction Co (Pty.)
Ltd.
,
19
earlier law required provisional sentence to be satisfied by payment
into court, pending the outcome of the proceedings. Towards
the end
of the 16
th
century, however, the law was changed in
Holland to provide that payment should be made to the plaintiff. The
reason for the change
appears to be fairly obvious: without the use
of the money, provisional sentence would be of little benefit to the
plaintiff. But,
in exchange for that indulgence, the defendant is
entitled to insist on security for repayment and the court has no
discretion
to dispense with that requirement.
[17] More
recently it has been held that security has to be provided against
payment, that is, simultaneous with payment.
20
The plaintiff is not thus entitled to demand payment first and put up
security later, which means in practice that the plaintiff
cannot use
the defendant’s money to obtain security for repayment. A
defendant who has paid the judgment debt is therefore
properly
secured to receive repayment if the claim is dismissed in the
principal case.
[18]
Conventional wisdom maintains that the purpose of provisional
sentence has always been to enable a creditor who has liquid
proof of
his or her claim to obtain a speedy remedy without recourse to the
expensive, time-consuming and often dilatory processes
that accompany
action proceedings following upon an illiquid summons.
21
Conversely, the procedure precludes a defendant with no valid defence
from “playing for time”. Or, as Huber explained
some
centuries ago:
22
“
This
usage of provisional payment . . . has been . . . introduced as a
matter of good practice, since people are wont to bring up
any sort
of excuse against even clear debts, in order to have the case
referred for evidence and so to gain time.”
[19] Rule
8(1) requires provisional sentence to be initiated by a summons in
the prescribed form.
23
A defendant who denies liability is required to set out the grounds
for that denial in an answering affidavit. In this event, the
plaintiff is afforded a reasonable opportunity to file a replying
affidavit.
24
Though the rule provides for two affidavits only, the courts have
assumed a discretion in terms of rule 27(3),
25
to allow a further affidavit on good cause shown.
26
[20] The
theoretical justification traditionally advanced for the institution
of provisional sentence is that a liquid document
gives rise to a
rebuttable presumption of indebtedness. The plaintiff must therefore
allege in his or her summons that the document
(a copy of which is
required by rule 8(3) to be annexed to the summons) is genuine and
that, on the face of the document, the amount
claimed is owing. If
the defendant disputes these allegations, the onus is on the
plaintiff to prove that they are true. That includes,
for example,
the authenticity of the defendant’s signature, the authority of
the defendant’s agent, or the fulfilment
of a “simple
condition”.
27
[21] But a defendant who relies on a defence
28
which goes beyond the liquid document 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.
29
If there is no balance of probabilities either way with regard to the
principal case, the court will grant provisional sentence.
It follows
that if there is a balance in favour of the plaintiff, provisional
sentence will also be granted. There is no closed
list of defences on
which a defendant can rely. Examples in practice of defences going
behind the liquid document are numerous.
They include the defence:
that the plaintiff never advanced the amount claimed;
30
that the liquid document was tainted with illegality;
31
or that the document had been obtained by fraud.
32
[22] It
has been said that the balance of probability which the defendant
must raise must be substantial before the court will refuse
provisional sentence.
33
However, as was pointed out in
Rich and Others v Lagerwey
,
34
our law knows only two standards of proof, namely, proof beyond
reasonable doubt which applies in criminal cases and the civil
standard of proof on a preponderance of probability. In order to
escape provisional sentence, the defendant must therefore satisfy
the
court on a preponderance of probability that the plaintiff is
unlikely to succeed in the principal case.
[23] This
onus, moreover, can only be discharged upon facts raised on
affidavit. The court has no inherent discretion to hear oral
evidence
on issues other than the authenticity of the defendant’s
signature on the document, where the plaintiff, in any
event, bears
the onus. This was the position in Holland
35
and is still the position in our law today.
36
The reason why this is so, is directly linked to the nature of
provisional sentence as a speedy remedy. The calling of witnesses
will effectively take one back to trial proceedings.
The
constitutional challenge
[24] As I
have already indicated, the order sought by the applicants in the
High Court was essentially that the common law institution
of
provisional sentence be declared unconstitutional with the
concomitant setting aside of rule 8. As the basis for their
constitutional
challenge they relied on sections 9(1) and 34 of the
Constitution. Section 9(1) provides:
“
Equality
Everyone is equal before the law
and has the right to equal protection and benefit of the law.”
And
section 34 provides:
“
Access
to courts
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.”
[25] In
this Court, with reference to section 9(1), the applicants argued
that the principles of provisional sentence differentiate
between
those who can pay and those who cannot pay in determining who is
allowed to defend an action on the merits. Therefore,
what could
potentially occur is that a defendant who can pay succeeds with the
exact same defence as the one who cannot pay and
who is thus
prevented from putting his defence before the court. This, so the
argument concluded, is in conflict with the guarantee
of equal
protection and benefit of the law in section 9(1).
[26]
Broadly, the applicants’ argument, relying on section 34, was
that a defendant against whom provisional sentence had
been granted
and who cannot pay, is conclusively and unconditionally barred from
entering into the principal case. Consequently,
so the argument went,
a defendant with a bona fide defence, which could not be established
on affidavit and without the assistance
of pre-trial discovery, the
leading of oral evidence and the cross-examination of the plaintiff’s
witnesses, is precluded
from invoking these aids in presenting his or
her defence. This argument concluded that this is inimical to the
right to a fair
hearing in section 34.
[27] In
setting down the present application, this Court issued directions
which limited written argument to the following issue:
“
Whether
the common law remedy of provisional sentence, requiring a party
against whom provisional sentence has been granted to enter
the
principal case only if the amount of the judgment and taxed costs
have been satisfied, is unconstitutional.”
[28] What
the directions thus point to is the sting of the provisional sentence
procedure. If the defendant can pay the judgment
debt, no irreparable
harm can occur, even if provisional sentence was wrongly given. The
case proceeds in the normal way and the
defendant will be vindicated
in the end. Moreover, the plaintiff’s ability to repay is
ensured by the provision of security.
It is only where the defendant
cannot pay the judgment debt that he or she is precluded from
entering into the principal case and
thus deprived of the advantages
of a trial procedure.
[29] In
response to these directions, the applicants made it clear that they
no longer sought the abolition of provisional sentence
and rule 8 in
their entirety. This followed upon their concession from the outset
that provisional sentence serves a commercial
purpose of great import
in preventing defences without merit being raised as a means of
delay. They also conceded that, for the
most part, the application of
the provisional sentence procedure does not result in any injustice
and thus accords with both the
fair hearing requirement in section 34
as well as the equality guarantee in section 9(1).
[30] In so
far as the remedy is concerned, so the applicants further contended
in their heads of argument, it is not necessary to
do away with
provisional sentence completely. All that is needed is to afford the
court a discretion at two levels:
first,
to refuse provisional sentence even where the defendant fails to
show that the probabilities of success in the principal
case are in
his or her favour; and
second,
once provisional sentence has been granted, whether to require the
defendant to pay the debt before being allowed to enter
into the
principal case.
[31]
During oral argument before us, the applicants further conceded that
the payment discretion, at the second stage of their proposed
formula, is unsustainable. I agree with this concession. The payment
discretion presupposes that the court can give a provisional
sentence
which does not compel provisional payment. But, as I see it, a
provisional sentence judgment without an obligation to
pay is the
equivalent of no provisional sentence at all. In fact, that much had
already been stated in
Kent v Transvaalsche Bank
slightly more
than a hundred years ago.
37
As it turned out, the applicants therefore contended for the
introduction of one discretion only: that the judge, who would
otherwise
be obliged to grant provisional sentence because the
balance of success does not favour the defendant, should have a
discretion
to refuse the order so as to avoid an injustice which
would otherwise occur.
[32] A
discretion as to whether or not provisional sentence should be
followed by payment would require an amendment to rule 8(10).
38
But the provisions of the rule have no bearing on the court’s
decision whether or not provisional sentence should be granted.
The
introduction of the discretion at that stage would therefore have no
impact on the provisions of the rule at all. Once it was
accepted
that the proposed payment discretion would eviscerate provisional
sentence, the applicants abandoned their attack on the
constitutional
validity of rule 8.
The
respondents’ answer
[33] The
respondents’ answer to the original broad challenge was in
essence that provisional sentence does not limit the defendant’s
rights in terms of either section 9(1) or section 34 of the
Constitution. Alternatively that a limitation of these rights would
in any event be reasonable and justifiable having regard to, amongst
other factors, the important role that provisional sentence
plays in
our civil procedure. In response to the challenge as narrowed during
oral argument in this Court, that to afford the courts
a discretion
whether to grant provisional sentence was unnecessary and will
effectively mean the end of an important and useful
remedy, I propose
to deal first with the question whether the provisional sentence
procedure constitutes a limitation of a defendant’s
right to a
fair hearing before a court in terms of section 34 of the
Constitution.
Does
provisional sentence limit the right of access to courts under
section 34?
[34]
Having regard to the way the argument developed in the course of oral
argument before this Court, and in particular the concessions
on the
part of the applicants, the sole question for determination is thus
whether the absence of a discretion to permit a defendant
who cannot
pay the sum claimed to enter the principal case, where the
probabilities are evenly balanced, renders the provisional
sentence
procedure unconstitutional. Before deciding this issue, it remains
necessary to consider the respondents’ contention
that the
entire provisional sentence procedure is constitutionally sound.
[35] In
defending the existing procedure, the respondents argued that even on
its narrowed basis, the applicants’ challenge
loses sight of
the fact that the procedure is subject to judicial supervision. This,
so the respondents argued, renders provisional
sentence
distinguishable from the self-help provisions impugned in
Chief
Lesapo v North West Agricultural Bank and Another
,
39
which concerned the seizure and sale of a defaulting debtor’s
property without recourse to a court of law. This argument
is clearly
well-founded to the extent that provisional sentence is available
only by court order.
[36] The
respondents’ further argument was that the provisional sentence
requires both parties to satisfy the respective burdens
imposed upon
them and that the burden imposed upon a plaintiff is in fact
substantial. That is plainly so. In fact, I believe it
is true as a
general statement that in most cases the procedure will not be unfair
to the defendant. This is ensured by two measures
built into the
provisional sentence procedure. First of all the plaintiff must
establish on a balance of probabilities that the
defendant has
unconditionally acknowledged liability for the amount claimed.
Failure to do so entails that provisional sentence
is refused.
[37] In
the second place, the defendant gets an opportunity to set out his or
her defence on affidavit. Once the plaintiff has filed
a replying
affidavit, the defendant can seek a further opportunity to file a
response which will be granted in exceptional circumstances.
The
court is thus able to weigh up the two opposing versions as far as
the papers allow. If the outcome is dependent on issues
of law or,
say, the interpretation of a contract which does not involve a
dispute of fact, the defendant will usually not be prejudiced
at all.
[38] The
right embodied in section 34 is a right to a fair public hearing, not
a right to a trial. Many procedures that are the
daily stuff of court
business are decided on affidavit, and never go to trial. These
include summary judgment where, unless the
defendant on affidavit
sets out a bona fide defence, final judgment may follow.
[39] Even
where the outcome is dependent on resolving a dispute of fact,
defendants in provisional sentence proceedings will often
be able to
prove a balance of eventual success in their favour through
documentary evidence. So, for example, if the defence is
one of
payment, the defendant will usually be able to prove payment on
balance, despite a denial by the plaintiff, through producing
a
receipt or by way of an entry into bank statements. In this light I
agree with the sentiment expressed by Didcott J in
Barclays
Western Bank Ltd v Pretorius
,
40
that the criticism against provisional sentence procedure (relied
upon by the applicants) may well have been overstated by Tindall
J in
Rood v Van Rooyen
when he said:
41
“
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. But the procedure is an
old and well-established one, and I do not think that
I should be
justified in modifying it to an extent which is not covered by any
previous case that I am aware of.”
[40] But perhaps equally over-broad
at the other end, I believe, may be the statement from
Mahon v
Mahon and Others
(on which the first respondent relied) that:
“
A
defendant with a ‘solid defence’ . . . to the plaintiff’s
claim has no insurmountable barrier to overcome and
will in the
normal course be able to avert the grant of provisional sentence.”
42
[41] That might indeed be so in the normal course, but the
unfortunate reality is that it is indeed possible for a defendant,
with a solid defence, to find the barrier created by the provisional
sentence procedure insurmountable. It may happen when, having
regard
to the evidence available and the nature of the defence, the
defendant is unable to establish that defence on balance by
way of
affidavit, without the assistance of oral evidence or
cross-examination of the plaintiff’s witnesses, or both. Say,
for example, the defence is that the cheque sued upon was acquired by
fraud
43
or that the bill drawn on the defendant constituted the contract
price for a counter-obligation that the plaintiff had failed to
perform.
44
As some cases illustrate, where there are mutually contradictory
versions, it will be virtually impossible to predict which will
be
accepted at the trial after cross-examination of the witnesses on
both sides. So, the prospects of success will be regarded
as evenly
balanced and provisional sentence will follow.
[42] Once
provisional sentence is granted, the defendant must pay the full
amount of the judgment to enter into the principal case.
And if he or
she is unable to do so, the judgment becomes final. This, despite the
fact that the defendant never had the opportunity
properly to present
a defence, which the court predicted to have an even chance of
succeeding. The effect is that, although the
defendant had an equal
chance of winning, provisional sentence procedure deprives him or her
of that chance.
[43] I
find it self-evident that in these narrowly described circumstances,
the provisional sentence procedure constitutes a limitation
of the
defendant’s right to a fair hearing before a court in terms of
section 34. It is true that provisional sentence is
granted by a
court, but there is a second element to the section 34 guarantee. The
hearing before the court must be fair. And a
procedure that condemns
a defendant inevitably and without discretion to final judgment with
no proper opportunity to present his
or her case is simply unfair.
The question is thus whether there is a discretion.
Do the
courts have a discretion to refuse provisional sentence?
[44] I
find a convenient starting point for the enquiry in the following
statements by
Herbstein and Van Winsen
:
45
“
In
every case, therefore, . . . if the probabilities favour the
defendant, provisional sentence will be refused; if they do not
favour the defendant, provisional sentence will be granted except in
the special circumstances discussed immediately below. . .
. The
special circumstances that have been recognized by our courts arise
when the probabilities of success favour neither the
plaintiff nor
the defendant and the provisional sentence claim is part of a larger
transaction which is in dispute between the
parties.” (Footnote
omitted.)
[45] The “special circumstances” exception referred to by
the learned authors has its origin in
Fichardt’s Estates v
Mitchell and Others
.
46
Since then it has been followed in numerous cases.
47
The origin of the court’s authority to refuse provisional
sentence in these “special circumstances” was not always
considered. Where it was, it was ascribed to a judicial discretion,
though the term was used on occasion in a somewhat loose and
wide
sense.
48
Some cases went further to tell us about the nature of this
discretion. An example is
Levy v Fairclough et Uxor
where it
was said:
49
“
A
study of all the decided cases shows that . . . if substantially the
same issues are to be investigated [in the main action] as
those
raised in the provisional sentence case, then the court has a
discretion to postpone the claim for provisional sentence pending
the
trial of the larger issues . . . .
This
is surely equitable
.
Provisional sentence provides an extraordinary and swift remedy in
favour of a party armed with a liquid document, but if that
document
is merely part of a larger transaction, then it would be
grossly
unfair
to
grant provisional sentence while the larger dispute remains
outstanding . . . . The defendant is a man of very slender means
and
there is every possibility that if provisional sentence is given
against him, he will not be in a position to continue the
main
action. . . . In the present case, if it should transpire that the
defendant has been defrauded, he may be entitled to damages
far in
excess of the amount now claimed. By applying the swift and
extraordinary remedy of provisional sentence in this case therefore,
the result may be to
work
a grave and perhaps irremediable injustice
.”
(Emphasis added.)
[46] And in
Mao-Cheia
v Neto
,
50
the court refused provisional sentence on the
basis that “this is a matter in which justice would be better
done between the
parties if I should exercise my discretion in favour
of [the defendant]”. The considerations underlying the exercise
of a
discretion in favour of the defendant in “special
circumstances” are therefore fairness and the prevention of
injustice.
[47] Finally, some
of the older cases held out the promise that the operation of this
discretion, to do justice between the parties,
could be extended
beyond the strict confines of “special circumstances”. So
it was said in
Estate Late Morton Greene
v Spies
,
51
that
“[t]he special circumstances
which have so far been recognised by the Courts . . . may of course
be extended from time to
time as the law develops. . . .”
52
[48] But despite this promise of
expansion, the discretion was never applied outside the narrow ambit
of the special circumstances
recognised in
Fichardt’s.
Stated somewhat differently: the parties referred to no
authority, nor am I aware of any, where a court has applied its
discretion
to refuse provisional sentence outside the bounds of
“special circumstances”. What I therefore distil from all
this
is that:
the courts have on occasion
exercised a discretion to refuse provisional sentence, even where
the prospects of success in the
main case are evenly balanced;
they have indicated that this
discretion should be exercised on the basis of what is just and
fair;
but,
until now, special circumstances have been confined to where the
balance of probabilities is equal and the provisional sentence
claim
is part of a larger dispute between the parties.
Conclusions
on limitation
[49] I
therefore conclude that the courts have over the years confined their
discretion to refuse provisional sentence to strictly
circumscribed
“special circumstances”. Though on occasion, the courts
seem to have recognised a discretion outside
the ambit of “special
circumstances” as presently recognised to refuse provisional
sentence where it would give rise
to unfairness and injustice, they
have never refused provisional sentence outside that narrow ambit.
[50] In
the light of these considerations, I hold that the provisional
sentence procedure constitutes a limitation of a defendant’s
right to a fair hearing in terms of section 34 where:
(a) the nature of the defence raised does not allow the defendant to
show a balance of success in his or her favour without the
benefit of
oral evidence;
(b) the defendant is unable to satisfy the judgment debt; and
(c) outside “special circumstances”, the court has no
discretion to refuse provisional sentence.
[51] I
must make it clear though that the limitation occurs only where two
lines intersect on the defendant’s case.
The first line
is that the nature of the defence raised does not allow the defendant
to show a balance in his or her favour without
the benefit of oral
evidence. The second line is that the defendant is unable to satisfy
the judgment debt. Absent either one of
these lines the provisional
sentence procedure will not limit the defendant’s right to
present his or her case, and thus
the right to a fair hearing, in any
way. If the nature of the defence allows a balance in favour of
the defendant to be shown
on affidavit, inability to pay the judgment
debt does not matter, since provisional sentence will be refused.
If, on the
other hand, the defendant can pay, it does not matter that
the defence can be established only with the benefit of oral
evidence.
The defendant will have that opportunity, after paying,
when he or she presents the defence during the principal case. The
defendant
will be no worse off than the plaintiff whose application
for provisional sentence is refused. Though it may give rise to
inconvenience,
his or her right to a fair hearing will eventually be
given effect to in the principal case.
[52] This
conclusion renders it unnecessary to enquire whether provisional
sentence procedure also limits a defendant’s right
under
section 9(1) of the Constitution. The question that remains is
whether the limitation of the defendant’s right under
section
34 is justifiable in terms of section 36 of the Constitution.
Justification
[53]
Section 36(1) provides:
“
Limitation
of rights
(1) The rights in the Bill of
Rights may be limited only in terms of law of general application to
the extent that the limitation
is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the
purpose of the limitation;
(c) the nature and extent of the
limitation;
(d) the relation between the
limitation and its purpose; and
(e) less restrictive means to
achieve the purpose.”
[54] What
the application of section 36(1) calls for, this Court explained, is
the following:
53
“
In
essence, the Court must engage in a balancing exercise and arrive at
a global judgment on proportionality and not adhere mechanically
to a
sequential check-list.”
And:
“
The
approach to limitation is, therefore, to determine the
proportionality between the extent of the limitation of the right
considering
the nature and importance of the infringed right, on the
one hand, and the purpose, importance and effect of the infringing
provision,
taking into account the availability of less restrictive
means available to achieve that purpose.”
54
[55] I now
proceed to this balancing exercise.
The
importance of the section 34 right
[56] There
can be no doubt about the importance of the fundamental right which
is guaranteed by section 34. As stated by this Court
in
De
Beer NO v North-Central Local Council and South-Central Local Council
and Others
:
55
“
This
section 34 fair hearing right affirms the rule of law, which is a
founding value of our Constitution. The right to a fair hearing
before a court lies at the heart of the rule of law. A fair hearing
before a court as a prerequisite to an order being made against
anyone is fundamental to a just and credible legal order.”
(Footnote omitted.)
The
importance of the purpose of the limitation
[57] It
cannot be gainsaid that provisional sentence is an important
instrument, particularly in the sphere of commerce. We all
know that
the pace at which the wheels of civil justice are turning is
unacceptably slow. Some of the contributing causes can be
eliminated;
others not. Achievement of the former is the subject of ongoing
effort and debate. Pertinent for present purposes,
however, is that
in these circumstances we can ill- afford to forgo one of the few
procedural instruments that enables a creditor
to obtain speedy
relief.
[58] Apart
from the interest of the individual plaintiff, exclusion of
unmeritorious defences also serves the interests of the
administration of justice itself. It renders scarce resources
available for the resolution of real disputes or, as was said in
Beinash and Another v Ernst & Young and Others
,
56
with reference to the prevention of vexatious litigation:
“
. . a
restriction of access in the case of a vexatious litigant is in fact
indispensible to protect and secure the right of access
for those
with meritorious disputes. . . . The vexatious litigant is one who
manipulates the functioning of the courts so as to
achieve a purpose
other than that for which the courts are designed.”
The same, in my view, can be said of
a defendant who opposes a claim with the sole purpose of delaying
payment of a debt which is
due.
[59] But
in the light of the narrowed challenge, the focus of the enquiry into
the purpose of the limitation must likewise be narrowed
down to the
confinement of the court’s discretion to refuse provisional
sentence under special circumstances only.
[60] A
discretion on the part of the courts always gives rise to a measure
of uncertainty in the outcome of litigation. In the case
of
provisional sentence, certainty in the outcome is of particular
importance to the plaintiff because the refusal of the application
will, from the plaintiff’s perspective, inevitably result in an
even further waste of time and legal costs. The apprehension
that
unacceptable uncertainty may be the death knell of provisional
sentence probably underlies the reluctance of our courts thus
far to
extend the application of their discretion beyond the confines of
special circumstances. Conversely, the confinement of
the court’s
discretion also serves the purpose of dissuading defenceless debtors
to proceed with litigation in the vain hope
that the court may be
persuaded to exercise its discretion in their favour.
The
nature and extent of the limitation
[61] As to
the factor in section 36(1)(c), that is the nature and extent of the
limitation, the respondents referred to the fact
that the provisional
sentence procedure imposes a limitation on a defendant’s
section 34 right only in exceptional circumstances.
That much is
true. But in those cases it effectively exposes the defendant with a
potentially good defence to final judgment without
allowing him or
her to put up that defence. In these narrowly described circumstances
the limitation is therefore a drastic one.
Comparison
with other procedures
[62] A
further argument relied on by the respondents under this rubric
rested on a comparison between provisional sentence and other
procedures that were held to pass constitutional muster or that were
at least not as yet subjected to constitutional challenge.
In this
regard they referred to the “pay now, argue later” remedy
found in tax legislation,
57
orders for security for costs
58
and, finally, summary judgment procedure.
59
[63] The
argument based on these comparisons was aimed at showing that the
limitation to a defendant’s right to a fair hearing
imposed by
these other procedures are in principle indistinguishable from
provisional sentence and that, what is good for the one
must be good
for the other. My conclusion is, however, that these comparisons are
not helpful. The constitutionality of each procedure
relied upon in
the comparison must be considered separately if and when it is
necessary. The only question we need to answer concerns
the
constitutionality of the provisional sentence procedure.
The
relationship between the limitation and the purpose
[64] The
next question is whether there is an appropriate relationship between
the limitation and its purpose. The limitation imposed
by provisional
sentence certainly achieves its purpose. It does enable the plaintiff
armed with a liquid document to obtain a speedy
remedy. Conversely,
it precludes a defendant from delaying payment of a debt due by
raising a bogus defence. Moreover, the restriction
of the court’s
discretion to “special circumstances” would contribute to
these purposes. But, while provisional
sentence is an important
remedy, the restriction of the court’s discretion to special
circumstances goes too far. Without
affording the court a discretion
to refuse provisional sentence where the result may be patently
unfair to the defendant, the remedy
goes further than is necessary to
protect any concomitant interests of the plaintiff. The limitation is
out of balance with its
purpose.
[65]
Having now undertaken the balancing exercise, I conclude that there
is no appropriate justification for the limitation to the
right of
access to courts that the absence of discretion as described earlier
entails.
Remedy
[66] The
defect lies in the absence of a discretion in the limited
circumstances described. The question is, what remedy should
be
afforded. One answer would be to leave it to the courts to refuse
provisional sentence whenever they regard it as just and fair.
But
that is too wide in the light of the narrow limitation I have found.
It seems to me that the procedure would be rendered constitutionally
consistent if the common law were developed in accordance with the
behest of the Constitution in a manner that gives the court
a
discretion to refuse provisional sentence only where the defendant
can demonstrate the following circumstances:
(a) an inability to satisfy the judgment debt;
(b) an even balance of prospects of success in the main case on the
papers; and
(c) a reasonable prospect that oral evidence may tip the balance of
prospective success in his or her favour.
[67] It
goes without saying that “inability to satisfy the judgment
debt” in the present context is not the same as
inconvenience
or even hardship to the defendant. A defendant who is unable to pay
because he or she does not want to sell or encumber
a particular
asset or who would rather not disturb the cash flow of his or her
business, is not entitled to seek what amounts to
an indulgence from
the court. As I see it, inability to pay in this context must require
the defendant to show that the judgment
debt is unlikely to be
satisfied by the attachment and sale in execution of his or her
property. For a defendant simply to state,
as the applicants did in
this case, that he or she is unable to pay the judgment debt will
therefore be insufficient to trigger
the court’s discretion to
refuse.
[68] Lest
I be misunderstood: I do not suggest that the court’s
discretion should again be absolutely confined to predetermined
conditions. The underlying consideration remains to protect the
defendant from an unjustifiable limitation to his or her fair hearing
right. What I am saying is that in the overwhelming majority of cases
a discretion exercised in accordance with the guidelines
I propose
will render the limitation to the defendant’s fair hearing
right justifiable.
[69] And
in the exercise of its discretion the court must bear in mind that it
is performing the balancing act between two legitimate
interests,
which section 36(1) of the Constitution requires. On one side of the
scale is the right of a plaintiff, armed with a
liquid document, to
obtain speedy relief. On the other side there is the defendant’s
right to a fair hearing in terms of
section 34 of the Constitution.
Summary
[70] What
this amounts to in sum is:
(a) Provisional sentence procedure constitutes a limitation of the
defendant’s right to a fair trial in terms of section
34 of the
Constitution in cases where:
(i) the nature of the defence raised does not allow the defendant to
show a balance of success in his or her favour without the
benefit of
oral evidence;
(ii) the defendant is unable to satisfy the judgment debt; and
(iii) the court has no discretion, in the absence of narrowly defined
“special circumstances”, to refuse provisional
sentence.
(b) Justification of the limitation requires the development of the
common law so that courts will in future have a discretion
to refuse
provisional sentence in the following circumstances:
(i) an inability to satisfy the judgment debt;
(ii) an even balance of success in the main case on the papers; and
(iii) a reasonable prospect that oral evidence may tip the balance of
success in the defendant’s favour.
[71] The
next question is what effect, if any, the new approach to the court’s
discretion proposed in this judgment will have
on the outcome of this
case.
Effects
on this case
[72]
Ordinarily the development of the common law by this Court in a
particular case will require that the case be referred back
to the
High Court for reconsideration in the light of the development. That,
however, cannot be the position when it is apparent
that the
variation in the common law brought about by the development can have
no influence on the outcome of the case.
[73] The
question is thus: can the amendment of the common law that I propose
lead the High Court to a different result in this
case? The answer, I
believe, is “no”. What the High Court found on the facts
is that the uncontroverted correspondence
between the parties favours
the Land Bank’s version of the disputed facts and that “on
the probabilities . . . an agreement
to that effect [on which the
applicants relied for their defence] does not exist.”
[74] It is
true that the affidavits which formed the basis of these findings
were not included in the record before us. But the
applicants took no
issue with these findings. On the contrary, in their application for
leave to appeal to this Court it was pertinently
stated that “the
Applicants do not seek leave to appeal against the Court
a quo
’s
findings on the merits”.
[75] What
this means, in short, is that this is not a case in which the
probabilities are evenly balanced on the papers. This is
a case where
the probability of eventual success in the principal case actually
favours the plaintiff. That being so, the case
falls outside the
ambit of the circumstances where, in the light of this judgment, the
court would now have a discretion to refuse
provisional sentence. As
I have indicated, a prerequisite for that discretion is that there
must be an even balance of prospects
of success in the main case on
the papers.
[76] What
is more, it appears that this matter has its origin in a summons
which was issued by the Land Bank in 2003. Though they
defended the
action, the applicants subsequently withdrew their defences and
signed an acknowledgement of debt for the full amount
of the claim
together with costs. That acknowledgement of debt in turn gave rise
to the present proceedings. In effect the applicants
have thus
succeeded in avoiding payment for more than seven years in a case
where the prospects of success had been found to favour
the Land
Bank. In these circumstances the applicants should not, in my view,
be afforded a further opportunity to frustrate the
Land Bank’s
legitimate claim.
Costs
[77] As to
the issue of costs in this Court, it appears to me that the
litigation between the applicants and the Land Bank arose
from a
commercial dispute. In that dispute the Land Bank was substantially
successful in vindicating its rights. It follows, in
my view, that
the applicants must pay the Land Bank’s costs. The position of
the Minister, on the other hand, is somewhat
analogous to that of an
amicus curiae
. The purpose of his intervention was to assist
this Court. In the circumstances I do not believe that a costs order
in his favour
would be warranted.
Order
[78] The
following order is accordingly made:
The
application for leave to appeal is granted.
The
appeal is upheld to the extent described in this order.
The
procedure for provisional sentence is declared to be inconsistent
with the Constitution and invalid to the extent that it
does not
give to courts a discretion to refuse provisional sentence where:
(a) the nature of the defence raised does not allow the defendant to
show a balance of success in his or her favour without the
benefit of
oral evidence;
(b) the defendant is unable to satisfy the judgment debt; and
(c) outside “special circumstances”, the court has no
discretion to refuse provisional sentence.
The
common law is developed so that courts will in future have a
discretion to refuse provisional sentence only in circumstances
where the defendant demonstrates:
(a) an inability to satisfy the judgment debt;
(b) an even balance of prospects of success in the main case on the
papers; and
(c) a reasonable prospect that oral evidence may tip the balance of
prospective success in his or her favour.
The
declaration of invalidity in paragraph 3 of this order will not
affect any claim for provisional sentence that has been finally
determined as at the date of this order by judgment at first
instance or by settlement.
The
first applicant, Twee Jonge Gezellen (Pty) Ltd, and the second
applicant, Nicolas Charles Krone, are ordered to pay the costs
of
the first respondent, the Land and Agricultural Development Bank of
South Africa trading as the Land Bank, including the costs
of two
counsel, jointly and severally.
There
is no order as to the costs of the second respondent, the Minister
for Justice and Constitutional Development.
Ngcobo CJ,
Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J,
Nkabinde J, Skweyiya J and Yacoob J
concur in the
judgment of Brand AJ.
For the Applicants: Advocate GM Budlender SC and Advocate PS van Zyl
instructed by Herold Gie.
For the First Respondent: Advocate DJ Jacobs SC and Advocate F
Jakoet instructed by Cliffe Dekker Hoffmeyr Inc.
For the Second Respondent: Advocate LT Sibeko SC and Advocate G
Ngcangisa instructed by the State Attorney, Cape Town.
1
Land
and Agricultural Development Bank of South Africa t/a The Land Bank
v Twee Jonge Gezellen (Pty) Ltd and Another
Case No 19694/2008,
24 November 2009, unreported.
2
Section
34 of the Constitution of the Republic of South Africa, 1996. The
full text appears in [24] below.
3
Section
9(1) of the Constitution. The full text appears in [24] below.
4
In
their supplementary answering affidavit to the rule 16A(1) of the
Rules notice in the High Court, the applicants also sought
an order
“refusing provisional sentence and allowing the matter to
proceed to trial in due course.”
5
It
was refused, first, by the High Court per Desai J on 25 March 2010
and subsequently by the Supreme Court of Appeal, per Ponnan
JA and
Pillay AJA on 24 June 2010.
6
Section
167(3)(b) of the Constitution provides that this Court “may
decide only constitutional matters, and issues connected
with
decisions on constitutional matters”.
7
Albutt
v Centre for the Study of Violence and Reconciliation, and Others
[2010] ZACC 4
;
2010 (3)
SA 293
(CC);
2010 (5) BCLR 391
(CC) at para 20 and
Phumelela
Gaming and Leisure Ltd v Gründlingh and Others
[2006] ZACC 6
;
2007 (6) SA 350
(CC);
2006 (8)
BCLR 883
(CC) at para 24.
8
Incorporated
in terms of the
Land and Agricultural Development Bank Act 15 of
2002
.
9
At
the time,
rule 10A
provided:
“
If
in any proceedings before the court, the constitutional validity of
a law is challenged, the party challenging the validity
of the law
shall join the provincial or national executive authorities
responsible for the administration of the law in the proceedings.”
(See
for example
Road
Accident Fund v Mdeyide (Minister of Transport Intervening)
[2007]
ZACC 7
;
2008 (1) SA 535
(CC);
2007 (7) BCLR 805
(CC) at para 27)
.
By
way of subsequent amendment of the rule by Government Gazette 32941
GN R86, 12 February 2010, the rule now further requires
that the
party “in the case of a challenge to a rule made in terms of
the Rules Board for Courts of Law Act, 1985 (Act
107 of 1985), cause
a notice to be served on the Rules Board for Courts of Law,
informing the Rules Board for Courts of Law thereof.”
10
See
for example
C.G.E. Rhoode Construction
Co (Pty) Ltd v Provincial Administration, Cape,
and
Another
1976 (4) SA 925
(C) at 928-9
and
Herbstein and Van Winsen
The Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa
5
ed vol 2 (Cilliers et al)
(Juta, Cape Town
2009) at 1314.
11
By
Government Gazette 15567 GN R498, 11 March 1994 (as corrected by
Government Gazette 15603 GN R625, 28 March 1994 and Government
Gazette 15634 GN R710, 12 April 1994).
12
A
challenge to rule 14A, on the basis that it was
ultra
vires
the provisions of the
Magistrates’ Court Act 32 of 1944, was dismissed by the
Supreme Court of Appeal in
Ndamase v
Functions 4 All
2004 (5) SA 602
(SCA).
13
Menzies
“Prefatory Remarks on Provisional Sentence” 1 Menzie
(1828) 5-10. At 6 he explains the terminology as follows:
“
Hence is derived the term
‘
Handvulling,’
by which provisional payment
is often designated in Dutch jurisprudence; while the yet more
common expression, ‘
Provisie
van Namptissement,’
points equally to the French
origin of the practice,—‘
namptissement’
signifying payment under
security, or rather the security itself (
pignus
),
into which the plaintiff is compelled to enter, in order to ensure
repayment to the defendant, should the final sentence so
adjudge.”
See
also
Malan et al
Provisional
Sentence on Bills of Exchange, Cheques and Promissory Notes
(Butterworths, Durban 1986) at 4.
14
See
Erasmus Superior Court Practice
(Farlam and Van Loggerenberg)
(Juta, Cape Town 2010) at B1-62 n 1 and the cases there cited.
15
See
for example
Harrowsmith v Ceres Flats
(Pty) Ltd
1979 (2) SA 722
(T) at 727G.
16
See
for example Menzies above n 13 at 7-8. See also Malan above n 13 at
14-15;
Herbstein & Van Winsen
above n 10 at 1328-74; and
Erasmus
above n 14 at B1-63 n 1.
17
See
for example
Joob Joob Investments (Pty)
Ltd v Stocks Mavundla Zek Joint Venture
2009
(5) SA 1
(SCA) at 10C-D and
Rich and
Others v Lagerwey
1974 (4) SA 748
(A)
at 754H.
18
See
for example
Herbstein & Van Winsen
above n 10 at 1328-74 and
Erasmus
above n 14 at B1-65.
19
Above
n 10 at
927E with reference to Van der
Keessel
Praelectiones
in
Gonin’s trans.
vol
4 at 179.
20
Van
der Merwe v Bonaero Park (Edms) Bpk
2000
(4) SA 329
(SCA) at para 8.
21
See
for example
Barclays National Bank Ltd
v Serfontein
1981 (3) SA 244
(W) at
249H and
Ashersons v Panache World
(Pty) Ltd
1992 (4) SA 611
at 613A.
22
Ulric
Huber
Heedensdaegse Rechtsgeleertheyt
5.30.14, referred to by
Herbstein
& Van Winsen
above n 10 at 1313 n
4.
23
Which
provides in relevant part:
“
(1) Where by law any person
may be summoned to answer a claim made for provisional sentence,
proceedings shall be instituted by
way of a summons as near as may
be in accordance with Form 3 of the First Schedule calling upon such
person to pay the amount
claimed or, failing such payment, to appear
personally or by counsel . . . upon a day named in such summons . .
. to admit or
deny his or her liability.”
24
This
is in terms of rule 8(5) which provides:
“
Upon the day named in the
summons the defendant may appear personally or by an advocate . . .
to admit or deny his or her liability
and may, not later than noon
of the court day but one preceding the day upon which he or she is
called upon to appear in court,
deliver an affidavit setting forth
the grounds upon which he or she disputes liability in which event
the plaintiff shall be
afforded a reasonable opportunity of replying
thereto.”
25
Rule
27(3) provides “[t]he court may, on good cause shown, condone
any non-compliance with these rules.”
26
See
for example
Dickinson v South African
General Electric Co. (Pty.) Ltd.
1973
(2) SA 620
(A) at 628F-G.
27
See
for example
Harrowsmith
above
n 15 at 731B and
Sonfred (Pty.) Ltd. v
Papert
1962 (2) SA 140
(W) at 143C.
See also
Erasmus
above
n 14 at B1-80 n 6.
28
Or
a counterclaim – see for example
C.G.E.
Rhoode Construction
above n 10 at
928F-H and
Erasmus
above
n 14 at B1-81-2 and the cases there cited.
29
See
for example
Froman v Robertson
1971
(1) SA 115
(A) at 120B.
30
See
for example
Trust Bank van Suid-Afrika
Beperk v Eastview Chalet Estates (Pty.) Ltd.
1971
(3) SA 928
(D) at 933D-F.
31
Joseph
v Hein
1975 (3) SA 175
(W) at 178G-H.
32
Abraham
v Du Plessis
1962 (3) SA 162
(T) at
169F-H.
33
See
Inter-Union Finance (Ltd) v
Franskraalstrand (Edms) Bpk. and Others
1965
(4) SA 180
(W) at 192F and
Herbstein &
Van Winsen
above n 10 at 1396 and the
cases there cited.
34
Above
n 17 at 760G-H. See also
Syfrets
Mortgage Nominees Ltd v Cape St Francis Hotels (Pty) Ltd
1991
(3) SA 276
(SE) at 286C-E.
35
See
Menzies above n 13 at 5.
36
See
for example
Rich and Others
above n 17 at 756A-G and
Extension Investments (Pty.) Ltd. v Ampro Holdings (Pty.) Ltd.
and Others
1961 (3) 429 (W) at 431A-G.
37
1907
TS 765
at 758:
“
The
object of granting provisional sentence was to afford a summary
remedy to plaintiffs who were prepared with liquid proof of
the
defendant’s liability, and to enable them to obtain payment of
their claims at once on giving security
de
restituendo
.
And if a defendant could, by entering appearance, without satisfying
the provisional judgment . . . [enter into the principal
case] . . .
the whole object of the procedure will be defeated.”
38
Rule
8(10) provides:
“
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).”
39
[1999]
ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR
1420
(CC).
40
1979
(3) SA 637
(N) at 653B-C.
41
1934
TPD 110
at 111.
42
[2009]
ZAWCHC 106
, Case No 14918/2008, 29 July 2009, as yet unreported, at
para 30.
43
See
for example
Abraham
above
n 32.
44
See
for example
Ottico Meccanica Italiana v
Photogrammetric Engineering (Pty) Ltd
1965
(2) SA 276
(D).
45
Above
n 10
at 1397.
46
1921
OPD 152.
47
For
a convenient summary of these cases see
Ottico
Meccanica
above n 44 at 282C-287B and
Mao-Cheia v Neto
1981
(3) SA 829
(C) at 833B-834G.
48
See
for example
Strachan & Company v
Murray
1939 WLD 93
at 101;
Ottico
Meccanica
above n 44
at
288F-G; and
Mao-Cheia
above
n 47 at 836F-H.
49
1950
(2) SA 240
(W) at 245-6.
50
Above
n 47 at 836G-H.
51
1933
NPD 328
at 331-2.
52
And
then followed the description of the
Fichardt’s
-type
special circumstances.
53
S
v Manamela and Another (Director-General of Justice Intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) (Madala J,
Sachs J, Yacoob J) at para 32.
54
Id
(O’Regan J and Cameron AJ, dissenting)
at para 66. See also
National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
[1998] ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at paras 33-5.
55
(Umhlatuzana
Civic Association Intervening)
[2001] ZACC 9
;
2002 (1) SA 429
(CC);
2001 (11) BCLR 1109
(CC) at para 11.
56
[1998]
ZACC 19
;
1999 (2) SA 116
(CC);
1999 (2) BCLR 125
(CC) at para 17.
57
Considered
in
Metcash Trading Ltd v Commissioner,
South African Revenue Service, and Another
[2000]
ZACC 21
;
2001 (1) SA 1109
(CC);
2001 (1) BCLR 1
(CC).
58
Considered
in
Giddey NO v JC Barnard and Partners
[2006] ZACC 13
;
2007 (5) SA 525
(CC);
2007 (2) BCLR 125
(CC).
59
See
for example
Joob Joob Investments
above
n 17 at paras 31-2.