,TLI4801 ASSIGNMENT 1 SEMESTER 2 2025 ANSWERS
DUE DATE: 21 AUGUST 2025
UNIQUE NO: (642661)
1(a) Would You Advise ADB Cables (Pty) Ltd to Make Use of the Provisional
Sentence Procedure to Recover the Amount Owing? Provide Reason(s) for
Your Answer.
The question of whether a creditor such as ADB Cables (Pty) Ltd should utilise
the provisional sentence procedure to recover an outstanding debt requires an
in-depth understanding of both the nature of provisional sentence and the
facts at hand. The provisional sentence procedure is a unique feature of South
African civil procedure and plays a significant role in the enforcement of liquid
documentary debts. It is designed to afford a creditor who holds a particular
type of instrument—commonly known as a liquid document—a mechanism by
which to obtain expeditious judicial relief without engaging in the full process
of trial proceedings.
At its core, provisional sentence is a hybrid procedure. It straddles the line
between summary judgment and action proceedings. The primary advantage
lies in its summary nature, where the plaintiff, relying on the mere production
of a liquid document, is entitled to judgment unless the defendant can
establish a defence sufficient to prevent judgment being granted summarily.
The court assumes that the document represents a valid, enforceable
obligation, thus shifting the burden of proof to the defendant, who must
convince the court that a triable issue exists or that the document is defective
in law.
To determine whether provisional sentence is appropriate in this instance, the
essential inquiry revolves around whether the Acknowledgement of Debt
(AOD) entered into by Brown Cables (Pty) Ltd qualifies as a liquid document
within the meaning attributed by South African jurisprudence. A liquid
document is defined as a written instrument in which the debtor
, acknowledges, unconditionally and unequivocally, their indebtedness to the
creditor for a fixed and ascertainable amount of money. The document must be
signed by the debtor or a duly authorised agent. Crucially, the debt must be
payable without the need for extrinsic evidence or the fulfilment of further
conditions.
In this case, it is clear from the scenario that Brown Cables (Pty) Ltd, acting
through its sole director and shareholder, Dennis Brown, entered into an
Acknowledgement of Debt in favour of ADB Cables (Pty) Ltd. The AOD records
the specific amount of R1.5 million, which represents the consideration for the
supply of high-voltage electricity cables by the plaintiff to the defendant.
Furthermore, the facts state that the defendant’s director expressly
acknowledged the debt and signed the document, thereby eliminating any
ambiguity regarding the existence of the obligation. The agreement on
payment terms further strengthens the document’s standing as a liquid
document.
The significance of possessing such a document cannot be overstated. By virtue
of the AOD, ADB Cables (Pty) Ltd effectively holds a document that entitles it
to seek relief through the provisional sentence process. The South African
courts have consistently held that an acknowledgment of debt that meets the
criteria of definiteness, certainty, and proper execution constitutes a liquid
document suitable for provisional sentence proceedings. This means the
creditor is not required to prove the underlying transaction at the provisional
sentence stage — the mere production of the document shifts the evidentiary
burden to the defendant.
The procedural advantage of this route lies in its ability to deliver swift judicial
outcomes. Provisional sentence proceedings are heard on affidavit evidence
rather than oral testimony. The defendant, if wishing to resist the claim, must
file an opposing affidavit setting out sufficient grounds for the court to refuse
provisional sentence. Importantly, the defendant is not entitled to delay the
proceedings by insisting on a full trial unless they can make out a prima facie
defence on the papers. In other words, the creditor is insulated from frivolous
or dilatory tactics at this stage.
Another critical consideration is the enforcement aspect. If provisional
sentence is granted, it effectively empowers ADB Cables (Pty) Ltd to execute
DUE DATE: 21 AUGUST 2025
UNIQUE NO: (642661)
1(a) Would You Advise ADB Cables (Pty) Ltd to Make Use of the Provisional
Sentence Procedure to Recover the Amount Owing? Provide Reason(s) for
Your Answer.
The question of whether a creditor such as ADB Cables (Pty) Ltd should utilise
the provisional sentence procedure to recover an outstanding debt requires an
in-depth understanding of both the nature of provisional sentence and the
facts at hand. The provisional sentence procedure is a unique feature of South
African civil procedure and plays a significant role in the enforcement of liquid
documentary debts. It is designed to afford a creditor who holds a particular
type of instrument—commonly known as a liquid document—a mechanism by
which to obtain expeditious judicial relief without engaging in the full process
of trial proceedings.
At its core, provisional sentence is a hybrid procedure. It straddles the line
between summary judgment and action proceedings. The primary advantage
lies in its summary nature, where the plaintiff, relying on the mere production
of a liquid document, is entitled to judgment unless the defendant can
establish a defence sufficient to prevent judgment being granted summarily.
The court assumes that the document represents a valid, enforceable
obligation, thus shifting the burden of proof to the defendant, who must
convince the court that a triable issue exists or that the document is defective
in law.
To determine whether provisional sentence is appropriate in this instance, the
essential inquiry revolves around whether the Acknowledgement of Debt
(AOD) entered into by Brown Cables (Pty) Ltd qualifies as a liquid document
within the meaning attributed by South African jurisprudence. A liquid
document is defined as a written instrument in which the debtor
, acknowledges, unconditionally and unequivocally, their indebtedness to the
creditor for a fixed and ascertainable amount of money. The document must be
signed by the debtor or a duly authorised agent. Crucially, the debt must be
payable without the need for extrinsic evidence or the fulfilment of further
conditions.
In this case, it is clear from the scenario that Brown Cables (Pty) Ltd, acting
through its sole director and shareholder, Dennis Brown, entered into an
Acknowledgement of Debt in favour of ADB Cables (Pty) Ltd. The AOD records
the specific amount of R1.5 million, which represents the consideration for the
supply of high-voltage electricity cables by the plaintiff to the defendant.
Furthermore, the facts state that the defendant’s director expressly
acknowledged the debt and signed the document, thereby eliminating any
ambiguity regarding the existence of the obligation. The agreement on
payment terms further strengthens the document’s standing as a liquid
document.
The significance of possessing such a document cannot be overstated. By virtue
of the AOD, ADB Cables (Pty) Ltd effectively holds a document that entitles it
to seek relief through the provisional sentence process. The South African
courts have consistently held that an acknowledgment of debt that meets the
criteria of definiteness, certainty, and proper execution constitutes a liquid
document suitable for provisional sentence proceedings. This means the
creditor is not required to prove the underlying transaction at the provisional
sentence stage — the mere production of the document shifts the evidentiary
burden to the defendant.
The procedural advantage of this route lies in its ability to deliver swift judicial
outcomes. Provisional sentence proceedings are heard on affidavit evidence
rather than oral testimony. The defendant, if wishing to resist the claim, must
file an opposing affidavit setting out sufficient grounds for the court to refuse
provisional sentence. Importantly, the defendant is not entitled to delay the
proceedings by insisting on a full trial unless they can make out a prima facie
defence on the papers. In other words, the creditor is insulated from frivolous
or dilatory tactics at this stage.
Another critical consideration is the enforcement aspect. If provisional
sentence is granted, it effectively empowers ADB Cables (Pty) Ltd to execute
