THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
CASE NO. 17/2003
In the matter between
A AVTJOGLOU
Appellant

and

FIRST NATIONAL BANK OF SOUTHERN AFRICA
Respondent
____________________________________________________________

CORAM:
ZULMAN, NAVSA and BRAND JJA

HEARD:
28 AUGUST 2003
DELIVERED:
19 SEPTEMBER 2003
____________________________________________________________

The grant of provisional sentence is not appealable

JUDGMENT

ZULMAN  JA

[1] The appellant appeals with the leave of this court against the grant of
provisional sentence for R310 000,00 and ancillary relief against him by
the court of first instance and the dismissal of an appeal against the order
by the court a quo.  The judgment of the court of first instance is reported.1.

[2.1] The respondent in its summons sought provisional sentence on a
copy of a document, signed by the appellant and annexed to the
summons (Annexure “A”) wherein the following appears:

“AGIS, by virtue of his personal indebtedness and the aforesaid
suretyship acknowledges himself to be indebted to the Bank in the sum
of R310 000,00.”

(It is clear from the heading of the document that the reference to
“AGIS” is to the appellant and the reference to “the Bank” is to the
respondent.)

2000 (1) SA 989 (C)

[2.2] Annexure “A” goes on to record that payment of the aforesaid
amount would be made by way of a single payment of R40 000,00
and monthly installments of R2 000,00.  Clause 7 of the document
provides:

“Should any installment of R2 000,00 due from AGIS not be paid strictly
on due date the Bank shall be entitled, but not obliged to claim and
recover the full outstanding balance of AGIS’ indebtedness to the Bank.”

[2.3]  The summons avers in substance that:

[2.3.1]
The appellant signed the original of Annexure “A” and
thereafter transmitted a copy of it to the respondent’s
Johannesburg attorney this copy being Annexure “A”.

[2.3.2]
The appellant has failed to make any payment whatsoever in
terms of Annexure “A”.

[2.4] In his answering affidavit the appellant does not deny any of these
averments.  The appellant however attacks the liquidity of Annexure
“A” and denies that it is binding.  The appellant relies upon a
variation agreement excusing him for his admitted non-payment and
which exempts him for liability.

[3] The issues as formulated in the respondent’s practice note and
elaborated upon by counsel for the respondent in his heads of argument are:

[3.1] Whether or not the document upon which provisional sentence was
granted is liquid.

[3.2] Whether or not, apart form the issue of liquidity of the document, the
grant of provisional sentence is appealable; and

[3.3] On the assumption that the order is appealable, whether or not the
appellant has discharged the onus resting upon him to demonstrate
that the respondent is unlikely to succeed in the principal case in
proving that the document relied upon is enforceable.

[4] During the course of argument counsel for the respondent, wisely in
my view, conceded that the approach adopted in the practice note and
heads of argument was incorrect.  More particularly even if it could be said
that the court a quo erred in concluding that the document upon which it
granted provisional sentence was liquid this would still not render the
provisional sentence appealable.  The argument before this court centered
essentially upon the latter question.

[5] At the outset it is important to stress the word “provisional” in the
remedy of provisional sentence.  The matter was put in these terms by
Centlivres CJ in Oliff v Minnie.2

“Proceedings for provisional sentence are, as the word ‘provisional’ indicates,
interlocutory in their nature and have always been so regarded by South African
Courts. If provisional sentence is granted, the defendant can, subject to paying
the debt due to the plaintiff and obtaining from the plaintiff security de
restituendo, go into the principle case and obtain a reversal of the order for
provisional sentence.  Similarly as Menzies, Vol 1 in his notes on provisional
sentence, para 8 says:  “Where provision [Provisional Sentence] has been
refused, the summons will stand as the summons in the action, and the
proceedings take place as if provisional sentence had never been claimed.”

Van Zyl in his Judicial Practice3. puts the matter thus:

“But whether provisional sentences has been refused or granted, the
disappointed party can always go into the principal case provided the refusal of
provisional sentence is not owing to a bad or defective summons; (Hol Cons vol
2,Con 137)  and the summons used in the provisional case will, if good, stand as
the summons for the principal case; and the proceedings may take place as if
provisional sentence had never been claimed.”

See also Jones v Krok4

[6] In Scott-King (Pty) Limited v Cohen5.  Stegmann J, after a careful
review of the authorities in the course of dealing with an appeal from a
provisional sentence in the Magistrate’s Court, made the following succinct
comments regarding the appealability of a provisional sentence judgment in
the Supreme Court:

1952 (4) SA 369 (A) at 374 G – 375 C
Fourth ed 163//64
1995 (1) SA 677 (A) at 686 E – J
1999 (1) 806 (W) at 825 C - E

“There is no single rule governing the appealability of decisions on provisional
sentence summonses in the Supreme Court.   There are distinctions to be made
between the following categories at least:  decisions granting provisional
sentence; decisions refusing provisional sentence on a ground which shows the
provisional summons to have been invalid; and decisions refusing provisional
sentenced on a ground which does not undermine the validity of the provisional
sentence summons but leaves it to stand as a valid summons in the principal
case.”

The learned judge then goes on to deal specifically with the case
where provisional sentence is granted and states the following6:

“When a provisional sentence has been granted in the Supreme Court, the
common law does not provide the defendant with any right of appeal but
classifies a provisional sentence as a pure (or simple) interlocketery order
against which no appeal lay.  The statutory right of appeal which defendants
enjoyed until 1982 under s 20 (a) and s 20 (b) by Act  59 of 1959, if leave to
appeal could be obtained was removed by the Appeals Amendment Act 105 of
1982.  Under s 20 of Act 59 of 1959 as amended by Act 105 of 1982, only a
“judgment or order” is appealable.”

Generally speaking the characteristics by which a “judgment or
order” is to be identified were laid down by this court in Zweni v
Minister of Law and Order7 in these terms:

“A ‘judgment or order’ is a decision which, as a general principle, has three
attributes, first, the decision must be final in effect and not susceptible of
alteration by the court of first instance; second, it must be definitive of the rights
of the parties;  and third, it must have the effect of disposing of at least a
substantial portion of the relief claimed in the main proceedings.”

At 825 F – G.  See also Harms – Civil Procedure in the Supreme Court B50.6 359/360;

Erasmus –Superior Court Practice A1 – 44 A para 12; Herbstein and Van Winsen  – The Civil

Practice on the Supreme Court of South Africa (Fourth Edition) para 5 p 838 sed contra Malan

et al – Provisional Sentence on Bills of Exhange, Cheques and Promissory Notes 202
1993 (1) SA 523 (A) at 532 I – J per Harms J

As Stegman J, correctly pointed out in Scott-King8 a provisional
sentence does not have any of these characteristics.  First the
decision to grant provisional sentence is not final in effect and is
indeed susceptible of alteration by the court hearing the principal
case even as to the question of whether the document relied upon
was not liquid.  In this latter respect I believe that the approach
initially adopted by the respondent’s counsel in contending that the
question of the liquidity of the document relied upon by the appellant
in the court of first instance was appealable, whereas the other
questions which arose in the matter were not appealable, was
erroneous as a matter of law.  Second provisional sentence is by no
means definitive of the rights of the parties. The rights of the parties
being, in the case of the respondent, to obtain a final judgment for
the amount which it claims is owing to it and in the case of the
appellant successfully resisting such claim.  Third a provisional
sentence does not have the effect of disposing of any of the relief
claimed in the main proceedings.  To state the obvious such relief is
the respondent’s claim for the amount it avers is due and owing to it.
Put differently the essential issue between the parties, shorn of any
procedural matter, is whether or not the appellant owes the money

Supra at 825 H

claimed.  This issue has clearly not been determined finally by the
provisional sentence.

[7] It is of course important to bear in mind that is determining the
nature and effect of a judicial pronouncement not merely the form of the
order must be considered, but also, and predominantly its effect.9  The
effect of the provisional sentence in casu is not final but merely provisional
in nature and not dispotive of the relief claimed in the main proceedings.

[8] It might at first blush seem to be unduly harsh upon an impecunious
defendant who is required to pay the amount of the provisional sentence
before being entitled to enter the principal case, to deprive him of a right of
appeal at the provisional sentence stage.  On the other hand one should not
loose sight of the fact that a plaintiff armed with what is prima facie a
liquid document is entitled to the long established expeditious remedy of
provisional sentence.

South African Motor industry Employer’s Association v South African Bank of Athens Ltd

1980 (3) SA 91 (A) at 96 H / 97 I; Zweni (supra at 532 I). Trakman NO v Livshitz and Others

1995 (1) SA 282 (A) at 289 E, Jones v Krok (supra) at  684 B – C; Wellington Court

Shareblock v Johannesburg City Council 1995 (3) SA 827 (A) at 834 and Erasmus (supra) at

A1 - 44A

[9] Having concluded that the provisional sentence granted is not
appealable it would be inappropriate to comment upon the validity of the
attack on the liquidity of Annexure “A” or indeed on the appellant’s
defence on the merits of the respondent’s claim.  I accordingly expressly
decline to do so.

[10] It is apparent from the judgment of the court of first instance
granting leave to appeal to the court a quo that the court was probably
influenced by the argument which was raised by the respondent in its heads
of argument before this court but not persisted in this court and to which I
have already referred, to the effect that that part of the judgment dealing
with the liquidity of the document relied upon was indeed appealable.  No
suggestion was made by the respondent that the entire grant of provisional
sentence was not appealable.  Would it be appropriate in these
circumstances to deprive the respondent of some or all of its costs in the
event of it being  held that the whole of the provisional sentence granted by
the court a quo is in fact not appealable?  I believe not.  The simple reason
for this is that the respondent was obliged at least in regard to the other
arguments advanced by the appellant on the merits to defend the
provisional sentence which it obtained.

[11] In all the circumstances the appeal is struck off the roll with costs as
opposed to being dismissed10  with costs.

---------------------------------------

R H ZULMAN

JUDGE OF APPEAL

NAVSA JA
)
BRAND JA
)
CONCUR

cf Wellington Court Shareblock v Johannesburg City Council (supra) at 835 F - I