The court's discretion with regards the refusal of a provisional sentence is elucidated in the following statement by Herbstein and Van Winsen (Herbstein and Van Winsen The Civil Procedure of the High Courts and the Surpreme Court of Appeal of South Africa 5 ed vol 2 (cilliers et al) (Juta, Cape Town) 2009) at 1397): '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 … special circumstances … 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 large transaction which is in dispute between the parties.' (Footnote excluded, and emphasis added.)  

However, on 22 February 2011, the Constitutional Court (in Twee Jonge Gezellen (Pty) Ltd and Another / Land and Agricultural Development Bank of South Africa t/a The Land Bank and Another, Case CCT 68/10, 2011 CC) (re)visited the court's discretion in this regard in accordance with the principles of the Constitution.

Generally, plaintiff must allege in its provisional sentence summons that the document (a copy of which must be attached to the summons in terms of Rule 8(3)) on which it relies is genuine and that, on the face of the document, the amount claimed is owing. If defendant disputes these allegations, the onus is on plaintiff to prove that they are true, which includes, for example, the authenticity of the defendant's signature, the authority of the defendant's agent, or the fulfilment of a 'simple condition' (see paragraph 20 in Twee Jonge).

If defendant defends a provisional sentence summons, it must produce sufficient proof on affidavit to satisfy the court that the probability of success in the principal case is against plaintiff (Froman v Robertson 1971 (1) SA 115 (A) at 120B.) If there is no balance of probabilities either way with regards the principal case, the court will grant provisional sentence except 'in special circumstances' as stated in the quotation above. Axiomatically, if the balance of probabilities is in favour of plaintiff, provisional sentence will also be granted. 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 plaintiff, in any event, bears the onus. In setting down the present application before it, the Constitutional 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 provisional case only if the amount of the judgment and taxed costs have been satisfied, is unconstitutional.'

Having heard arguments from both applicants and respondents, the Constitutional Court considered the following factors and made the following findings:

Right to a fair hearing in terms of section 34 of the Constitution

As stated earlier, if defendant cannot show on a balance of probability that plaintiff will be unsuccessful then the provisional sentence will be granted except 'in special circumstances'. It is possible that a defendant is unable to establish a defence by way of affidavit, except by way of oral evidence or cross-examination of the plaintiff's witnesses, or both – for example, if the defence is that the cheque sued upon was acquired by fraud. 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. (Paragraph 41 in Twee Jonge.)

A defendant cannot enter into the principal case unless he pays the full amount of the judgment. For a defendant who is unable to do so, the judgment becomes final. This, despite the fact that 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 defendant had an equal chance of winning, provisional sentence deprives it of that chance.

Accordingly, the Court held that a procedure that condemns a defendant inevitably and without discretion to final judgment with no proper opportunity to present its case is simply unfair. It is 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.

Do the courts have a discretion to refuse provisional sentence?

Although, on occasion, the courts seem to have recognised discretion outside the ambit of 'special circumstances' as recognised before this judgment to refuse provisional sentence where it would give rise to unfairness and injustice, they have never refused provisional sentence outside that narrow ambit (paragraph 50 of Twee Jonge).

The Constitutional Court held that a court ought to enjoy the discretion to refuse provisional sentence only where the defendant can demonstrate the following circumstances:

  • A defendant's inability to satisfy the judgment debt;
  • An even balance for defendant of prospects of success in the main case on the papers; and
  • A reasonable prospect that oral evidence may tip the balance of prospective success in the defendant's favour.

Justification in terms of section 36 of the Constitution

The Court then went through the enquiry in section 26 of the Constitution to establish whether the limitation of the right to a fair hearing in section 34 was reasonable and justifiable.

After conducting such enquiry, the Court held that without affording the court a discretion to refuse provisional sentence where the result may be patently unfair to defendant, the remedy (i.e. provisional sentence) goes further than is necessary to protect any concomitant interests of plaintiff. The limitation is therefore out of balance with its purpose.

The Court concluded that there is no appropriate justification for the limitation to the right to a fair hearing that the absence of discretion as described earlier entails.  

Remedy

The Court held 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 discretion to refuse provisional sentence only where defendant can demonstrate the following circumstances:

  • an inability to satisfy the judgment debt;
  • an even balance of prospects of success in the main case on the papers; and
  • a reasonable prospect that oral evidence may tip the balance of prospective success in his or her favour.

'Inability to satisfy the judgment debt' in the present context is not the same as inconvenience or even hardship to defendant. Inability to pay in this context, as Brand AJ 'saw it', must require defendant to show that the judgment debt is unlikely to be satisfied by the attachment and sale in execution of his or her property. In our view, this requirement will prove the most problematic because it will very likely expose a defendant's insolvency.  

The effect of the case is merely a broadening of a court's discretion in granting provisional sentence. Since the onus remains unchanged on either party, the position is no more onerous to each, and goes further in protecting defendant than the prior position.