Provisional Sentence (PS) is an extraordinary remedy designed to enable a creditor who has

liquid proof of his claim to obtain a speedy judgment therefor without resorting to the more
expensive and dilatory machinery of an illiquid action (Ashersons v Panache World (Pty) Ltd
1992 (4) SA 611 (C) at 612J-613B). The claim must be based on a liquid document. In Rich and
Others v Lagerwey 1974 (4) SA 748 (A) at 754H the court defined a liquid document. In
particular, the court stated that: ‘[i]f the document in question upon a proper construction
thereof evidences by its terms, and without resort to evidence extrinsic thereto, an unconditional
acknowledgement of indebtedness in an ascertained amount of money, the payment of which is
due to the creditor, it is one upon which provisional sentence may properly be granted.’
In Rich v Lagerway the court approved the counsel submission referring to a practice of long
standing which authorised the grant of provisional sentence on bilateral contracts such as deeds
of sale and leases. In particular, the court indicated that ‘[s]uch a practice would be
unobjectionable, provided the document relied upon clearly evidences an unconditional
undertaking to pay and ascertained a sum of money and that payment is due.’ Clearly, there are
two instruments that qualify as liquid documents in the present case, i.e.: (i) the bond; and, (ii)
the cheque. Therefore, the validity of the defence raised by Mr Khakathi should be addressed in
relation to each of these two documents.
(i) Bond

The loan /bond agreement provides that in case of breach by the debtor, the creditor must first
issue a notice demanding the debtor to remedy the breach with 7 days.

Two important points emerges from the definition of what constitute a liquid document for the
purposes of PS proceedings, both of which are pertinent to issue under discussion here. First
point is that the defendant’s liability to the plaintiff must flow from the liquid document itself
‘without resort to evidence extrinsic thereto’. Second point is that the liquid document must
evidence ‘an unconditional acknowledgement of indebtedness’ by the debtor (defendant) to the
creditor (plaintiff).
First point is that the defendant’s liability to the plaintiff must flow from the liquid
document itself ‘without resort to evidence extrinsic thereto’.
The loan /bond agreement provides that in case of breach by the debtor, the creditor must first
issue a notice demanding the debtor to remedy the breach with 7 days. In terms of Uniform Rule
8(3) ‘[c]opies of all documents upon which the claim is founded shall be annexed to the
summons and served with it.’ This involves annexing all documents material to plaintiff’s cause
of action. The documents must be true copies in all material respects. If this requirement is not
complied with provisional sentence may be refused or the proceedings may be postponed to
enable the plaintiff to serve a proper copy, the plaintiff to pay the wasted costs. The court may
also condone the failure. The originals of the documents are handed up from the bar (technically
‘surrendered’) when the application is heard.
In light of the above, it is correct to assume that if the letter has been issued it is attached to the
summons in line with the provision of Rule 8(3). However, Mr Khakhathi argues that even if
SMS has a proof that they issued the notice such proof would constitute extrinsic evidence which
is not permissible in provisional sentence summons proceedings. The pertinent question is
whether a copy of the notice which is attached to the PS Summons constitutes extrinsic evidence
or not?
It is trite law that the plaintiff’s title and defendant’s liability must appear ex facie the summons
and the document upon which the claim is founded without resort to extrinsic evidence.
However, the allegation made by the parties in the court documents (plaintiff’s summons and the
defendant’s response) are not considered as extrinsic evidence and the court may have regard to
them. On this point, the court in Basil Read (Pty) Ltd v Beta Hotels (Pty) Limited [2000] 1 All
SA 1 (C), the court at paras 12 to 14 per Moosa J stated that: ‘[r]egard, however, could also be
had to the allegations in the summons and the defendant’s response thereto.’ Similarly, in
Coetzee & Solomon Real Estate (Pty) Limited v Texeira 1970 (1) SA 94 (D) at 95 the court
pointed out that: the document must be read with the summons and if the identity of a creditor,
who is indicated but not named in the acknowledgement of debt, is alleged in the summons, the
fate of the action for provisional sentence may well depend on the defendant’s response to that
allegation.’
The plaintiff in PS proceedings must provide liquid proof of his claim and the defendant’s
liability must appear ex facie the document on which the claim is founded and this without the
resort to extrinsic evidence. However, a court may have regard to allegations in the summons
and the defendant’s response. In Rich v Lagerwey the court indicated that the law enjoins courts
to look beyond the form or nature of the document relied on and determine whether it fits the
description of a liquid document.
In this case the defendant’s liability is clear ex facie the cheque, which document makes it clear
that payment is on 5 August 2018 depending on transfer. It thus does not meet the requirement
that it be a liquid document.
Second point is that the liquid document must evidence ‘an unconditional acknowledgement
of indebtedness’ by the debtor (defendant) to the creditor (plaintiff).
The loan / bond agreement provides that in case of breach by the debtor, the creditor must first
issue a notice demanding the debtor to remedy the breach with 7 days. In this regard, Mr
Khakhathi’s alleges that SMS has not issued the notice requesting him to remedy the breach
within 7 days as required in terms of the loan agreement. Therefore, his indebtedness to SMS is
not unconditional as required for the purposes of provisional sentence. This of course begged the
question: is the defendant’s indebtedness to the plaintiff’s unconditional? The answer depends
on whether the notice requirement can be categorised as a simple condition or not?

In Joosub v Edelson 1998 (3) SA 534 the court stated that:

The simplicity or complexity of a condition such as the one in issue cannot render unconditional
an otherwise conditional debt. The enquiry, when provisional sentence is sought, is a two-fold
one: one must first determine whether the debt in question falls within the parameters set in cases
such as Union Share Agency & Investment Ltd v Spain (supra) and Inglestone v Pereira (supra).
If it does, one then examines the condition to ascertain whether it qualifies as a simple condition.
If it is, then one can merely allege in the summons and, if necessary prove, fulfilment thereof. If
the claim fails the first test, however, one does not proceed to the second phase of the enquiry.

It is trite law that a ‘simple condition’ does not destroy the liquidity of document and render the
indebtedness conditional. In describing a simple condition the court approved the argument that
differentiated between the ‘conditional liability’ and the ‘conditional payment’. The court
endorsed the following argument as a correct statement of the law:
“If a document does no more than evidence a potential liability, the existence of which is
dependent on the happening of some future state of affairs (as opposed to a document where the
liability is not conditional but payment depends on the coming into existence of a future state of
affairs) then the document is not a liquid document. In such a case the question of payment being
dependent upon the fulfilment of a so-called simple condition does not arise. In fact, the
simplicity or otherwise of the condition upon which the liability (as opposed to the payment) will
arise is entirely irrelevant!”
In other words, if condition set out in the document relate to the liability in the sense that it is
depended on the happening of some future event or state of affairs, such document does not
qualify as liquid document for the purposes of PS proceedings. Conversely, if the condition set
out in the document relate to payment meaning that it is payment (as opposed to liability) that is
depended on the happening of some future event or state of affairs, that is a simple condition and
the liquidity of the document is to destroyed. The debtors liability remain intact. All the plaintiff
is required to do is to merely allege in the summons and, if necessary prove, fulfilment of the
simple condition.
In Carmichael Automotive (Pty) Limited v Gehlig (13119/2019) [2019] ZAWCHC 135 (16
October 2019) the court made the following important remarks:
From the Joosub v Edelson case we can glean the following principles. A document that only
evidences a potential liability that is dependent on the happening of something in the future, is
not a liquid document and thus does not meet the requirements of rule 8. This accords with the
Basil Read judgment. However, if payment (as opposed to liability) is dependent on a future
event, it will meet the requisites for provisional sentence. In this instance, the acknowledgement
of debt was payable on a certain date. If that was where it ended, the plaintiff might have
prevailed. However, it was not. Liability, as opposed to payment alone, was dependent on
transfer and for this reason the plaintiff falls foul of the principles enunciated in Joosub v
Edelson.
In Rich v Lagerway the court stated further that:
‘If payment is dependent upon the fulfilment of a condition or the happening of an event, which
can only be proved by extrinsic evidence, provisional sentence can only be granted if the case
falls within the rule formulated in Pepler v Hirschberg, supra. Therefore, if, e.g., payment is
conditional upon the performance by the plaintiff of obligations in terms of the document relied
upon, it does not, in my opinion, without more, entitle him to rely on an averment in the
summons that he has performed his obligations in order to render liquid a document which on
the face of it is illiquid. The Court will of necessity enquire into the nature of the performance
upon which the payment is conditional in order to determine whether the case falls within
above-mentioned rule. As I have already stated, it is not the type of transaction but the liquidity
of the document which determines whether provisional sentence procedure is appropriate or
not.’
The requirement of issuing of notice is a pre-condition relating payment rather than indebtedness
/ liability. It does not destroy the liquidity of the document.
In conclusion, Mr Khakhathi’s defence in relation to the bond is not valid in law for the
following reasons:
1. The requirement for the issuing of notice qualifies as a simple condition. All the plaintiff
is required to do is to merely allege in the summons that the simple condition has been
fulfilled.
2. Production of proof that a simple condition has been fulfilled is permissible in PS
proceedings. It does not constitute extrinsic evidence as alleged by the Mr Khakhathi. In
Rich v Lagerwey the court indicated that the law enjoins courts to look beyond the form
or nature of the document relied on and determine whether it fits the description of a
liquid document.
3. In any event, the plaintiff’s PS claim is based on the dishonoured cheque. Therefore, the
defence raised by Mr Khakhathi are misapplication.
(ii) Cheque
Mr Khakhathi defaulted with his January monthly instalment and is now in arrears for an amount
of R500 000, 00. On 26 August 2022 Mr Khakhathi paid his January monthly instalment by
issuing cheque in favour of SMS valued at R500 000, 00 and payable by Standard Bank of SA
Limited. Later on the cheque bounced on account of insufficient funds in the account and it was
referred to the drawer. On the strength of the cheque which was dishonoured, SMS instituted
provisional sentence proceedings against Mr Khakhathi. Mr Khakhathi is defending the matter.
Mr Khakhathi’s defence is that SMS has not issued the notice requesting him to remedy the
breach within 7 days as required in terms of the loan agreement. Therefore, his indebtedness to
SMS is not unconditional as required for the purposes of provisional sentence. Mr Khakhathi
argues further that even if SMS has a proof that they issued the notice such proof would
constitute extrinsic evidence which is not permissible in provisional sentence summons
proceedings.
In any event, the plaintiff’s PS claim is based on the dishonoured cheque. Therefore, the defence
raised by Mr Khakhathi are misapplication.