RSA Aartappelsaad Beurs (Edms) Bpk v Weldaad Boerdery (Edms) Bpk (3852/2010) [2010] ZAFSHC 159 (9 December 2010)

RSA Aartappelsaad Beurs (Edms) Bpk v Weldaad Boerdery (Edms) Bpk (3852/2010) [2010] ZAFSHC 159 (9 December 2010)

The court found that the versions of the plaintiff and defendant were mutually destructive and irreconcilable. On the papers and oral argument, neither party's version could be preferred on the probabilities. In accordance with the Sonfred decision, where the document is a liquid obligation and the probabilities do not favour either party, provisional sentence must be granted. The plaintiff was therefore entitled to provisional sentence on the dishonoured cheques, as the defendant failed to discharge the onus required to resist provisional sentence.

Citation
[2010] ZAFSHC 159
Parties
Plaintiff: RSA Aartappelsaad Beurs (Edms) Bpk; Defendant: Weldaad Boerdery (Edms) Bpk
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
9 December 2010
Case Number
3852/2010
Procedural Posture
Provisional Sentence Application / Judgment
Outcome
Provisional sentence on the cheques is granted with costs.
Judges
B C Mocumie
Legal Topics
Provisional Sentence, Cheque Liability, Security for Debt, Liquid Document, Onus of Proof
Civil Procedure Commercial and Corporate Provisional Sentence Cheque Liability Security for Debt Liquid Document Onus of Proof

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Parties

RSA Aartappelsaad Beurs (Edms) Bpk

Plaintiff

Weldaad Boerdery (Edms) Bpk

Defendant

Procedural Posture

Provisional Sentence Application / Judgment

Legal Issues

  1. 1 Whether the plaintiff is entitled to provisional sentence on the dishonoured cheques issued by the defendant.
  2. 2 Whether the cheques were given as security for a debt that was already settled or for an existing liability.
  3. 3 Whether the probabilities favour the plaintiff or the defendant in light of mutually destructive versions.

Ratio Decidendi

The court found that the versions of the plaintiff and defendant were mutually destructive and irreconcilable. On the papers and oral argument, neither party's version could be preferred on the probabilities. In accordance with the Sonfred decision, where the document is a liquid obligation and the probabilities do not favour either party, provisional sentence must be granted. The plaintiff was therefore entitled to provisional sentence on the dishonoured cheques, as the defendant failed to discharge the onus required to resist provisional sentence.

Court Disposition

Provisional sentence on the cheques is granted with costs.

Orders

  • Provisional sentence is granted in favour of the plaintiff for the amount of R564,286.16.
  • The defendant is ordered to pay the plaintiff's costs.