Robyn Shepherd | SchoemanLaw Inc  

Category: Civil Litigation | Civil Litigation 

Introduction  

In South African procedural law, the provisional sentence procedure is a highly effective mechanism. This legal tool allows plaintiffs to secure a provisional judgment for debts based on liquid documentary evidence. It provides a faster resolution compared to standard action proceedings and can significantly save time and costs. The procedure is regulated under Rule 8 of the Uniform Rules of Court and Rule 14A of the Magistrates' Courts Rules, both of which are nearly identical, ensuring consistency in application across different court levels. 

Overview of Provisional Sentence 

The provisional sentence is rooted in Roman-Dutch law, historically known as namptissement or handling—literally "filling the hand." This term captures the essence of the procedure, which aims to quickly satisfy a plaintiff's claim when a defendant defaults on a debt. A plaintiff must present a liquid document that implies an indebtedness, raising a presumption that the debt is due. If the defendant contests this by challenging the document's authenticity or the debt's validity, the plaintiff bears the burden of proving their allegations. 

Once the provisional sentence is granted, the defendant must pay the judgment amount to the plaintiff but can later reclaim it if they prevail in the main case. This process allows a plaintiff to execute the judgment before it becomes final, usually within two months of being granted. 

The provisional sentence procedure operates on the principle that a debt supported by clear documentary evidence merits swift judicial action.  

Key elements include: 

1. Liquid Document Requirement: A liquid document is a written instrument that acknowledges an unconditional debt for a fixed amount. Examples include acknowledgements of debt and certain certified statements. 

2. Judicial Discretion: Courts have the discretion to refuse a provisional sentence if the defendant shows: 

• Inability to satisfy the debt. 

• Even prospects of success in the main case. 

• Potential for oral evidence to alter the case's outcome. 

Provisional sentence offers a more expedited route compared to other legal procedures such as action proceedings and summary judgment: 

Action Proceedings 

Typically initiated by summons, these proceedings can be lengthy, especially if the defendant defends the claim. The earliest a plaintiff can obtain a default judgment is after a significant administrative period, making a provisional sentence a faster alternative. 

Summary Judgment 

Used when a defendant’s plea lacks a bona fide defence, summary judgment requires waiting for the defendant’s plea, potentially delaying the resolution. A provisional sentence can be more efficient, as it allows for a hearing within ten court days after service, provided the liquid document supports the claim. 

Practical Application and Benefits 

The provisional sentence is particularly beneficial for claims involving liquid documents, as it enables quick and provisional judgment execution. This procedure is not limited to credit agreements governed by the National Credit Act but extends to various types of liquid documents. 

Despite perceptions that the procedure is underutilized due to the discretionary power of courts post-Twee Jonge Gezellen, it remains a viable and efficient option. Practitioners should consider provisional sentences to avoid delays inherent in other proceedings, especially when dealing with clear and undisputed documentary evidence. 

Conclusion 

The provisional sentence procedure is a powerful tool in South African law for claims supported by liquid documents. It offers a swift resolution, reducing the time and costs associated with standard action proceedings. By understanding and effectively utilizing provisional sentences, legal practitioners can provide efficient solutions to clients, ensuring that justice is served promptly.  

Robyn Shepherd | SchoemanLaw Inc 

Attorney  

https://schoemanlaw.co.za/our-services/litigation-law/