Concourt to hear wine estate appeal

Nov 17 2010 14:50
Johannesburg - The Constitutional Court will hear an application for leave to appeal as previous judgment on Thursday by Twee Jonge Gezellen against the Land Bank and the justice minister .

The application was about the constitutionality of the provisional sentence procedure.

Twee Jonge Gezellen wine estate said the provisional sentence was unconstitutional because it limited their right of access to courts and it only allowed those who could pay to defend the action equal protection and benefit of the law.

The justice minister contested that provisional sentence procedures did not infringe upon the applicants' fair hearing and equality rights and that, if it did any infringement was justifiable.

Provisional sentence was available to a creditor in possession of a document which was an unconditional acknowledgement of indebtedness by the debtor such as a written acknowledgement of debt or a cheque.

It was a simple and speedy way for holders of documents like cheques to get paid.

To avoid provisional sentence, the defendant had to make out a case where the plaintiff would fail if the case went before the court.

Oral evidence was only allowed if the signature on the document was disputed.

If a provisional sentence was granted, the defendant had to first pay the alleged debt before he or she was entitled to defend the case on its merits.

The defendant could insist that the applicant provide security for repayment of the amount involved.

In June 2005, Twee Jonge Gezellen signed an acknowledgement of debt in favour of the Land Bank for about R39m.

Since the applicants had failed to pay the installments due, the Land Bank claimed provisional sentence for the outstanding sum of about R37m.

The wine estate alleged that, although they had a valid defence against the claim, they were prevented from entering into the principal case by the rules of provisional sentence because they could not submit oral evidence before the provisional sentence judgment had been issued against them, and they were unable to pay to do so.

land bank  |  wine estate


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