REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 1106/2024
In the matter between:
PEXMART CC PLAINTIFF
And
JOHANNES ALBERTUS TALJAARD DEFENDANT
_______ _____
JUDGMENT
KGANYAGO J
(1)
(2)
(3)
REPORTABLE: YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
DATE ........... . 81 G NATURE: ............ .
[1] The plaintiff (Pexmart) has issued provisional sentence summons against the
defendant (Taljaard) seeking payment in the amount of R2 086 058.27. It is
alleged that Taljaard has signed two separate deeds of suretyship which both
incorporate acknowledgement of debt agreements. Taljaard had si gned as
surety and co -principal debtor for Whaleback Piping Specialist (Pty ) Ltd
(Whaleback). Taljaard is the sole director of Whaleback. Part of Pexmart
business is the selling of HDPE piping and fittings to its clients. Whaleback
was one of Pexmart clients . Pexmart and Whaleback had entered into a
consignment stock agreement, for purposes of regulating the treatment of the
consignment stock.
[2] According to Pexmart from 1 st August 2021 up to 31st December 2021, it
provided HDPE piping and fittings to Whaleback . Thereafter Pexmart
rendered invoices to Whaleback in respect of the products sold and delivered.
Whaleback failed to make full payments in respect of the invoices rendered by
Pexmart. On 21 st May 2021 and 30th June 2021 Taljaard entered into two
personal deeds of suretyship in favour of Pexmart for the due and proper
fulfilment of all the obligations of Whaleback, and for the payment o n demand
of any amounts which are or may become due by Whaleback. He also signed
two acknowledgements of debts on the same dates that he had signed the
two sureties.
[3] Ta ljaard had signed both the acknowledgement of debt s and sureties that the
amount owed to Pexmart was R3 243 811.28. After enter ing into the
agreements, Whaleback made payments which did not extinguish the whole
debt. Pexmart through its attorneys issued a letter of demand in terms of
section 345(1) of the Companies Act 61 of 1973 demanding payment of
R2 212 057.27. Whaleback tried to make an offer of settlement which was
rejected by Pexmart. Whaleback was disputing the amount it was alleged that
it owed Pexmart . Despite disputing the amount, Whaleback made further
payments which reduced the debt to R2 086 058.26. Pexmart is therefore
claiming this amount from Taljaard as a surety and co-principal debtor.
[4] Taljaard is opposing Pexmart action and has filed his answering affidavit. In his
answering affidavit Taljaard has submitted that Pexmart ha d instituted action
against Whaleback under case number 15 01/2022, which action is still
pending. Whaleback under case number 1501/2022 has filed i ts plea a nd
counter claim for damages in the amount of R3 000 000.00. In the
counterclaim Whaleback is alleging that it had a verbal agreement with
Pexmart. The terms of the verbal agreement were to the effect that if Pexmart
secures a specific service level agreement with Dwarsr ivier Chrome Mine it
will appoint Whaleback as a subcontractor to render specific services to
Pexmart and the mine on Pexmart specific request. After securing the specific
service level agreement it is alleged that Pexmart breached the agreement by
appointing another service provider as a subcontractor.
[5] Taljaard has pleaded that the arrangements and agreements between Pexmart
and Whaleback was dependent on, alternatively, based on the verbal
agreement between Pexmart and Whaleback regarding the securing of the
service level agreement betwee n Pexmart and Dwars rivier Chrome Mine .
Further that Whaleback has suffered damages in the amount of
R3 000 000.00 as a direct resul t of Pexmart breach of the verbal agreement .
Taljaard has speci fically pleaded that th e current action be stayed until the
finalisation of the counterclaim under case number 1501/2022.
[6] Taljaard conceded that certain invoices were delivered but denies that Pexmart
was entitled to payment, alternatively that he is not liable to effect payment to
Pexmart. According to Taljaard he had signed the two acknowledgement of
debts which were confined to specific purchase orders which were paid in full.
Further that the amount reflected in the acknowledgement of debt s and the
amount reflected on the purchase orders do not correspond. Taljaard denies
that Whaleback did not make sufficient payments, but that it had made certain
payments directly to the member of Pexmart by the name Andre Jansen van
Rensburg at his specific request during the time Pexmart was under business
rescue. Taljaard concede that there were settlement negotiations by the
parties in an attempt to minimize a lengthy and costly litigation, but that
Pexmart failed to allocate payments towards the correct invoices , but yet
demanded payment for invoices already paid.
[7] In reply to Taljaard answering affidavit, Pexmart has conceded that it had
instituted action against Whaleback under case number 1501/2022 . The
action instituted against Whaleback is for unpaid invoices in respect
consignment goods supplied and delivered . Pexmart denies indebtedness to
Taljaard as per Whaleback’s counterclaim under case number 1501/2022.
The current proceedings can still proceed and be determined as Taljaard had
not been cited as a second defen dant under case number 1501/2022 ; the
counterclaim under case number 1501/2022 cannot avail or discharge
Taljaard in these proceedings from his liability for the debt owed to Pexmart ;
Taljaard’s counterclaim has no prospects of success; and Taljaard can
demand security from Pexmart as a means to protect itself until such time as
the matter under case number 1501/2022 has been adjudicated to finality.
[8] T here is no reason to stay these proceedings until the final adjudication of the
matter under case number 1501/2022 as Taljaard will not suffer any pr ejudice
in these proceedings. Whaleback had made certain payments in reduction of
its debt but were not sufficient to extinguish the outstanding amount due and
owing to Pexmart. That resulted in Taljaard entering into the two
acknowledgement of debt s with Pexmart with accompanying suretyship
agreements wherein he bound himself as surety and co -principal debtor for
the due and proper fulfilment of all the obligations of Whaleback and for
payment on demand of any amount which was or may be due by Whaleback .
Payments made to Andre van Rens burg by Whaleback were credited to
Whaleback’s account . Pexmart denies that it was under business rescue
when Whaleback made payments to Andre.
[9] Counsel for Pexmart has submitted that the matter before court concerns a
provisional sentence summons brought by Pexmart against Taljaard in
respect of two separate deeds of suretyship which incorporate two separate
acknowledgement of debts. Taljaard had signed the two acknowledgement of
debts for the amount of R3 243 811.28 and R976 288.82 which were in
respect of goods sold and delivered by Pexmart to Whaleback.
[10] Counsel Pexmart further submitted that Taljaard has raised many bare denials
in his answering affidavit and has not disputed his signature or the authenticity
in respect of the acknowledgements of debt s and the deeds of suretyship.
Taljaard answering affidavit does not disclose a defence on a balance of
probabilities that will succeed in the main case. The deeds of surety ship,
which incorporate the respective acknowledgement of debt s, are liquid
documents upon which the court may grant provisional sentence against
Taljaard. Taljaard answering affidavit is contradictory in that he denies
Pexmart provisional sentence summons in its totality but conceded to having
signed the acknowledgement of debts.
[11] In relation Taljaard seeking the staying of the proceedings pending the
adjudication of Whaleback counterclaim , counsel for Pexmart has submitted
that Taljaard has provided a scant substantiation in respect of the facts
surrounding the counterclaim averring that there was an oral agreement
between Pexmart and Whaleback regarding Whaleback securing a service
level agreement between Pexmart and an entity known as Dw arsrivier
Chrome Mine. Even though a surety can put a counterclaim of the principal
debtor as a defence , such counterclaim must disclose fully the nature and
grounds of the defence and the material facts relied upon.
[12] For Taljaard in order to escape provisional sentence he must satisfy the court
that it is unlikely (on a balance of probabilities) that Pexmart will succeed in
the principal case. Taljaard has not discharged the burden cast upon him that
he will be successful in the principal case against Pexmart. Taljaard will not
suffer any prejudice as the provisional sentence proceedings are interloc utory
in nature and he can still enter the main case.
[13] Counsel for Taljaard has submitted that Pexmart has instituted an action
against Whaleback in which Taljaard has not been joined to the proceedings
despite been the surety. Whaleback has defended Pexmart action and had
filed a counterclaim in the amount of R3 000 000.00. In that action they are at
the pre-trial stage and the matter remained unresolved. The trial court had to
determine the liability of the main principal debt. If the main principal debt or is
found not to be liable and in the current case provisional sentence has been
granted against Taljaard, there will be conflicting judgments . The principal
debtor is ancillary to the surety. In avoiding a duplicating of processes, they
are asking for a stay of the current proceedings pending the adjudication of
the main case.
[14] Counsel Taljaard has further submitted that the acknowl edgement of debts
which Pexmart is relying on are for the specific purchase orders which
Whaleback has paid . The acknowledgement of debt is a liquid do cument
whilst the surety agreement is not. The court is called upon to inter pret the
agreement. The acknowledgement of debts which Taljaard have signed were
for specific orders which have been paid . These acknowledgement of debts
were not general to embrace every outstanding debt. Whaleback is linked to
the current matter hence they are seeking for a stay of the proceedings.
[15] Pexmart is relying on the continuing security of the suretyship which is not a
liquid document. It will not be in the interest of justice to shut the door of
Taljaard. This matter is not suitable for the granting of the provisional
sentence. The two agreements needed to be interpreted.
[16] The court is called upon to determine whether Pexmart has satisfied the
requirements for the granting of provisional sentence . Provisional sentence is
a speedy remedy to the plaintiff whose claim is based on a liquid document. It
enables the plaintiff to a quick payment of an amount acknowledged to be
owing pending the finalisation of the principal case. It is a provisional or
interlocutory order as the principal case is still to be determined. Should the
court grant the provisional sentence, the defendant had the option of entering
the principal case and even to request security from the plaintiff for amount
that the defendant might have paid as a result of the provisional sentence. A
defendant who denies liability is required to set out the grounds for that denial
in an answering affidavit by satisfying the court on a preponderance of
probability that the plaintiff is unlikely to succeed in the principal case.
[17] In Twee Jonge Gezellen v Land and Agricultural Development Bank1 Brand JA
said:
“It has been said that the balance of probability which the defendant must raise must be
substantial before the court will refuse provisional sentence. However, as was pointed out in
Rich and Others v Lagerwey , our law knows only of 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 preponde rance of proba bility that the plaintiff is unli kely to
succeed in the principal case”.
[18] Pexmart provisional sentence is based on the two ack nowledgment of debt s
signed by Taljaard. An acknowledgement of debt qualifies as a liquid
document. For an acknowledgement of debt to qualify as a liquid document it
must be an unconditional acknowledgement of indebtedness in a fixed or
ascertainable amount of money due to the plaintiff . The person who had
signed the acknowledgement of debt must also acknowledge his/her
signature or that of the perso n he/she has authorized to sign on his/her
behalf. In Ndamase v Functional 4 ALL 2 it was held that it is the essence of
the of a liquid document that, standing on its own , it establishes the
indebtedness of the debtor without the necessity for any evidence extrinsic
thereto.
1 2011 (3) SA 1 (CC) at para 22
2 2004 (5) SA 602 (SCA) at 607A-B
[19] In terms of the first acknowledgement of debt, Taljaard had acknowledged that
he was indebted to Pexmart in the sum of R3 243 811.28 being in respect of
goods sold and delivered by the supplier. Purchase order: 2346 (Q20202179).
In the deed of surety that accompanied the acknowledgement of debt which
Taljaard had signed as surety and co -principal debtor, he had agreed that he
will be liable for the due and punctual payment of all sums and the due and
proper performance of all obligations which the principal debtor may in the
past or now or in future owe to Pexmart or Pexma rt’s successor in title or
assigns and for the due and proper performance by the principal debtor of all
its obligations, whether actual, contingent or potential which it may be in the
past, or now or may in the future owe to Pexmart or Pexmart’s successor’s in
title or assign, arising out of or in connection with any cause of indebtedness
whatsoever whether now existing or which may come into being in the future.
[20] With regard to the second acknowledgement of debt , Taljaard had
acknowledged that he was indebted to Pexmart in the sum of R9 76 288.82
being in respect of goods sold and delivered by the supplier. Purchase order
2362 (Q202029 08)-Consignment stock. In the deed of surety that Tal jaard
had signed, and which had accompanied the acknowledgement of debt,
Taljaard had agreed as a surety and co -debtor that he will be liable for the
due and punctual payment of all sums and the due and proper performance of
all obligations which the principal debtor may in the past or now or in the
future owe to Pexmart or to Pexmart’s successors in the title or assigns and
for the due and proper performance by the principal debtor of all its
obligations, whether actual, contingent or potential which it may in the past or
now or may in the future owe to Pexmart or Pexmart’s su ccessor’s in title or
assign, ari sing out of or in connection with any cause of indebtedness
whatsoever whether now existing or which may come into being in the future.
[21] The d eed of surety on its own do not amount to a liquid document as there is
no unconditional acknowledgement of indebtedness in a fixed or
ascertainable amount of money that is due to Pexmart . According to Pexmart,
after Taljaard had signed the two acknowledgement of debt s, Whaleback
made some payments in reduction of its debts but did not pay in full . The
outstanding balance as per Pexmart reconciliation record stand at
R2 086 058.27. Taljaard in his answering affidavit has pleaded that the
purchase orders as they appear in the two acknowledgement of debt s have
been paid for by Whaleback and has attached several proof of payments for
the period 17th June 2021 to 22nd June 2022. Taljaard in his answering
affidavit has stated that the amount reflected in the acknowledgement of debts
and the amount reflected on the purchase orders did not correspond. Further
that certain payments were made by Whaleback to Jansen van Rensburg ,
and that Pexmart had failed to allocate some payments towards the correct
invoices.
[22] Pexmart in its replying affidavit had attached a detailed reconciliation of all the
payments which Taljaard had attached to his answering affidavit for the period
17th June 2021 to 22nd June 2022, and it leaves a balance of R2 086 058.27.
Taljaard does not dispute having signed the two acknowledgement of debts.
Therefore, their authenticity is not placed in dispute. It will be immaterial
whether the amount as they are reflected on the purchase orders and
acknowledgements of debts correspond or not. Taljaard elected to sign the
two acknowledgement of debts well aware of those discrepancies that he tries
to raise now. In my view, what Taljaard is raising is not a good ground to
resile from the two acknowledgement of debts which he had conceded to
having signed.
[23] The reconciliation as prepared by Pexmart provides an ascertainable amount
that is due and owing by Taljaard . This amount flows from the capital amount
of the two acknowledgement of debt s which Taljaard had signed in his
capacity as surety and co -debtor for the due and proper fulfilment of all the
obligations of, and for the payment on demand of any amounts which are or
may become due to Whaleback. The two acknowl edgement of debt s which
Taljaard had signed are unconditional acknowledgement of debts, and he also
undertook to pay the outstanding amount owed by Whaleback to Pexmart.
[24] Taljaard had failed to show the court that the probability of success , in the
principal case is against Pexmart . There is no likel ihood that there is a
probability that if the matter proceed to trial Taljaard will be successful with his
defence. It will therefore not be in the interest of justice to stay the provisional
sentence pending the determination of the counterclaim in the principal case.
Taljaard will not suffer any prejudice if provisional sentence is granted as he is
still having the option to pay the amount c laimed, request security from
Pexmart and enter into the principal case. The mere fact that provisional
sentence has been granted is not automatic that Pexmart will succeed in the
principal case. Pexmart principal case may still be dismissed. Therefore, the
argument by counsel for Taljaard that there will be conflicting judgme nts has
no merit. The balance is in favour of Pexmart and it is therefore entitled to be
granted provisional sentence. The two ackn owledgements of debts provides
for costs on attorney and own client scale.
[25] Accordingly the following order is made
25.1 Provisional sentence is granted in the sum of R2 086 058.27 with
interest thereon at the rate of 24% from 1st January 2022 to date of payment.
25.2 Defendant is ordered to pay the plaintiff’s costs on attorney and own
client scale.
KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the plaintiff : Adv M Dames
Instructed by : Hahn & Hahn Attorneys
Counsel for the defendant : Adv MM de Jager
Instructed by : Kirk Twine Attorneys
Date heard : 23rd July 2026
Electronically circulated on : 7th August 2026