Lishwa Constructions CC v Hard Property Development Group [2005] ZAGPHC 371; 92/05/01 (17 August 2005)
- Citation
- [2005] ZAGPHC 371
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- High Courts - Gauteng
- Panel
- Willis
- Case number
- 4092/05
More details
- Court
- High Courts - Gauteng
- Panel
- Willis
- Case number
- 4092/05
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the defendants had issued and delivered the cheques to the plaintiff, and that these cheques were dishonoured upon presentation. The defences raised by the defendants, including alleged over-payment, an accounting dispute, and incomplete work, were not substantiated and did not explain why the cheques were issued if the amounts were not owed. The court held that the probabilities favoured the plaintiff, as the issuance of the cheques indicated satisfaction with the amounts claimed. Accordingly, the plaintiff's claim for provisional sentence succeeded, and orders were granted as set out in the summons.
Court disposition
Provisional sentence granted in favour of the plaintiff as claimed.
Orders
- Provisional sentence is granted in terms of prayers 1, 2 and 3 of each of claims A, B, C, D, E and F as set out in the summons dated 21 February 2005.
02
Material facts
Parties
Lishwa Constructions CC
PlaintiffHard Property Development Group
RespondentAmounts and remedies
- Provisional Sentence Amount Against First Defendant: ZAR 263,000
- Provisional Sentence Amount Against Second Defendant: ZAR 100,000
- Accounting Dispute Amount: ZAR 30,334
03
Procedural history
Posture
Provisional Sentence Application / Judgment
04
Questions and positions
Legal issues
- 01
Whether the plaintiff is entitled to provisional sentence based on dishonoured cheques issued by the defendants.
- 02
Whether the defences raised by the defendants, including alleged over-payment, accounting dispute, and incomplete work, are sufficient to defeat the claim for provisional sentence.
Party arguments
- Applicant
- The plaintiff contends that the defendants issued and delivered cheques to the plaintiff, which were subsequently dishonoured upon presentation. The plaintiff maintains that the cheques represent amounts lawfully owed for work performed, and that the defendants' defences are without merit. The plaintiff relies on the presumption that the issuance of the cheques is evidence of indebtedness and seeks provisional sentence as set out in the summons.
- Respondent
- The defendants initially raised points in limine, which were abandoned. They vaguely contend that there is a lis pendens affecting the matter. Substantively, they argue that there was an over-payment, an accounting dispute regarding certain invoices amounting to R30,334.00, and that the plaintiff did not complete the work for which payment is claimed.
05
Court’s reasoning
Legal principles
- 01
South African law of negotiable instruments
The issuance and delivery of a cheque is prima facie evidence of indebtedness, and unless the defendant can show a valid defence, provisional sentence should be granted.
- 02
General principles of civil procedure
A defence of lis pendens does not preclude the granting of provisional sentence if the claim is clearly established.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the defendants had issued and delivered the cheques to the plaintiff, and that these cheques were dishonoured upon presentation. The defences raised by the defendants, including alleged over-payment, an accounting dispute, and incomplete work, were not substantiated and did not explain why the cheques were issued if the amounts were not owed. The court held that the probabilities favoured the plaintiff, as the issuance of the cheques indicated satisfaction with the amounts claimed. Accordingly, the plaintiff's claim for provisional sentence succeeded, and orders were granted as set out in the summons.
Obiter and limits
- The abandonment of points in limine by the defendants further weakened their position.
- The vague assertion of lis pendens was found to be without merit and did not affect the outcome.
Court disposition
Provisional sentence granted in favour of the plaintiff as claimed.
- Provisional sentence is granted in terms of prayers 1, 2 and 3 of each of claims A, B, C, D, E and F as set out in the summons dated 21 February 2005.
Source and reliance status
High Courts - Gauteng
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Judgment reading view
Judgment text
The complete available source text.
High Courts - Gauteng
Judgment
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)
JOHANNESBURG
CASE NO: 4092/05
DATE:2005-08-1 7
In the matter between
LISHWA
CONSTRUCTIONS CC.................................................................................... Plaintiff
and
HARD
PROPERTY DEVELOPMENT GROUP........................................................ Respondent
JUDGMENT
WILLIS , J: The plaintiff claims provisional sentence against the first defendant in the sum of R263 000,00together with interest and costs and against the second defendant in the sum of R100 000,00 together with interests and costs.
The claim is based on cheques which, it is common cause, the first defendant and the second defendant issued to the plaintiff. Four of the original cheques have been produced to court this afternoon in respect of all but two of the claims. There is an affidavit attaching a copy of the relevant cheques and also the appropriate indemnity.
There is no dispute that these cheques were signed and delivered to the plaintiff. There is no dispute that the cheques have been dishonoured upon being presented for payment. The defendants raise certain points in limine which have since been abandoned. It has been vaguely contended however that there is still a lis pendens which would affect the matter. The fact of the matter is that if provisional sentence is granted, it would remove the issue in respect of which provisional sentence is granted from the lis. ( see no merit that defence. Essentially the defendants rely on the following defences: -
(i) An over-payment.
(ii) There is an accounting dispute of some R30 334,00 relating to certain invoices and
(iii) The plaintiff did not complete the work it claims for which it should have been paid.
When one examines the probabilities, this is the essential difficulty which the defendants face: why then did they issue the cheques? If they issued the cheques, they must, on the probabilities have been satisfied that the amounts in respect of which they wrote the cheques, were indeed owing.
On this very simple test it seems to me that the claim for provisional sentence must succeed. The claim for a provisional sentence has been set out as claims A, B, C, D, E and F at the end of the summons dated 21 February 2005. An order is accordingly made in terms of prayers 1, 2 and 3 of each of claims A, Br C, D, E and F on the summons dated 21 February 2005.
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