S M Fraser Trading As Salka Enterprises v Counter Point Furnishers CC (10061/2010) [2010] ZAGPJHC 84 (22 September 2010)

S M Fraser Trading As Salka Enterprises v Counter Point Furnishers CC (10061/2010) [2010] ZAGPJHC 84 (22 September 2010)

The court found that the deed of sale, including Clause 17.1, constitutes a liquid document as it sets out an unconditional acknowledgement of liability to pay an ascertained amount, namely the purchase price and interest. The conditions for liability, such as the defendant's default in furnishing a guarantee and the calculation of interest, are simple events capable of proof by affidavit. The defendant's opposition was technical and did not dispute the merits, and the plaintiff discharged its onus. Accordingly, the requirements for provisional sentence were satisfied, and judgment was granted in favour of the plaintiff.

Citation
[2010] ZAGPJHC 84
Parties
Plaintiff: S M Fraser Trading As Salka Enterprises; Defendant: Counter Point Furnishers CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 September 2010
Case Number
10061/2010
Procedural Posture
Civil Procedure / Provisional Sentence Application
Outcome
Provisional sentence granted in favour of the plaintiff.
Judges
R Mokgoatlheng
Legal Topics
Liquid Document, Provisional Sentence, Sale of Immovable Property, Contractual Interest, Simple Condition
Civil Procedure Commercial and Corporate Liquid Document Provisional Sentence Sale of Immovable Property Contractual Interest Simple Condition

Case Brief

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Parties

S M Fraser Trading As Salka Enterprises

Plaintiff

Counter Point Furnishers CC

Defendant

Procedural Posture

Civil Procedure / Provisional Sentence Application

Legal Issues

  1. 1 Whether the deed of sale constitutes a liquid document capable of sustaining a provisional sentence claim.
  2. 2 Whether Clause 17.1 of the deed of sale encapsulates an unconditional acknowledgement of indebtedness in an ascertained amount.
  3. 3 Whether the conditions set out in Clause 17.1 qualify as simple events for the purposes of provisional sentence.

Ratio Decidendi

The court found that the deed of sale, including Clause 17.1, constitutes a liquid document as it sets out an unconditional acknowledgement of liability to pay an ascertained amount, namely the purchase price and interest. The conditions for liability, such as the defendant's default in furnishing a guarantee and the calculation of interest, are simple events capable of proof by affidavit. The defendant's opposition was technical and did not dispute the merits, and the plaintiff discharged its onus. Accordingly, the requirements for provisional sentence were satisfied, and judgment was granted in favour of the plaintiff.

Court Disposition

Provisional sentence granted in favour of the plaintiff.

Orders

  • The defendant is ordered to pay the plaintiff the sum of R215087.00 plus interest at 11 percent per annum from 9 November 2009 to date of payment.
  • The defendant is ordered to pay the plaintiff's costs of suit.