Mendelow Jacobs Attorneys v Mutupe (00453/2016) [2017] ZAGPJHC 54 (6 March 2017)

Mendelow Jacobs Attorneys v Mutupe (00453/2016) [2017] ZAGPJHC 54 (6 March 2017)

Clause 5 of the acknowledgment of debt, which binds the debtor to a certificate of balance issued by the creditor, is void according to established precedent. While the principle of severability may allow the remainder of the acknowledgment to stand, the constitutional issue raised by the defendant is decisive. The defendant's defence, insisting on taxation by the Taxing Master and challenging a substantial invoice, cannot be properly adjudicated without oral evidence. Under the ratio of Twee Jonge Gezellen, the provisional sentence procedure is unconstitutional in circumstances where the defence cannot be established on affidavit and the defendant cannot pay the judgment debt. The court...

Citation
[2017] ZAGPJHC 54
Parties
Plaintiff: Mendelow Jacobs Attorneys; Defendant: Tshinetisa Syndey Mutupe
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 March 2017
Case Number
00453/2016
Procedural Posture
Civil Action / Provisional Sentence Application
Outcome
Provisional sentence is refused. The defendant is directed to file its plea within ten court days. Costs are reserved.
Judges
Van der Linde
Legal Topics
Provisional Sentence, Acknowledgment of Debt, Certificate of Balance, Severability, Constitutional Fair Hearing
Civil Procedure Provisional Sentence Acknowledgment of Debt Certificate of Balance Severability Constitutional Fair Hearing

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Parties

Mendelow Jacobs Attorneys

Plaintiff

Tshinetisa Syndey Mutupe

Defendant

Procedural Posture

Civil Action / Provisional Sentence Application

Legal Issues

  1. 1 Whether clause 5 of the acknowledgment of debt renders the entire document void.
  2. 2 Whether the provisional sentence procedure is unconstitutional in the circumstances of this case.
  3. 3 Whether the defendant's insistence on taxation by the Taxing Master constitutes a valid defence.

Ratio Decidendi

Clause 5 of the acknowledgment of debt, which binds the debtor to a certificate of balance issued by the creditor, is void according to established precedent. While the principle of severability may allow the remainder of the acknowledgment to stand, the constitutional issue raised by the defendant is decisive. The defendant's defence, insisting on taxation by the Taxing Master and challenging a substantial invoice, cannot be properly adjudicated without oral evidence. Under the ratio of Twee Jonge Gezellen, the provisional sentence procedure is unconstitutional in circumstances where the defence cannot be established on affidavit and the defendant cannot pay the judgment debt. The court...

Court Disposition

Provisional sentence is refused. The defendant is directed to file its plea within ten court days. Costs are reserved.

Orders

  • Provisional sentence is refused.
  • The defendant is directed to file its plea within ten court days.