Provisional Sentence Summons

Question 1

What is a Provisional Sentence Summons

Answer 1

It is a procedure that provides a creditor that is armed with a liquid document s speedy remedy for the recovery of the money due to him without having to resort to the more expensive, cumbersome and often dilatory machinery of an action

Question 2

Your client has stopped payment on a cheque he drew in favor of Durban Motors for price of a car. Client says the car was sold to him in good running order but on the way home the car stopped working. client served with provisional sentence summons. defendant filed affidavit explaining what happened to car. Plaintiff in reply says car was checked and found to be in good working order. if you were the magistrate what order would you make on provisional sentence summons and why?

Answer 2

• I would grant the PSS as magistrate not know from documents which evidence to accepts
• accordingly defendant fail to show defence more likely to succeed than plaintiffs claim
• defendant admitted signing the cheque, provisional sentence must be granted

Question 3

if provisional sentence granted and the defendant still believes he has a good defence what should the defendant do to enter into the principal case?

Answer 3

• within 2 months of the provisional sentence being granted
• defendant must pay to the plaintiff the claim plus interest costs
• give notice of intention to enter principal case and then file a plea

Question 4

Your client provides you with a liquid document for an amount of R250 000. He advises you that he believes the defendant does not have a valid defence to the claim. advise him whether he should proceed by way of a PSS as opposed to issuing a summons then applying for Summary Judgment

Answer 4

I would advise that the client proceed by way of PSS as the court have to decide on papers before it whether on a balance of probability the defendant would win the case if not provisional sentence summons should not be entered

On the otherhand if summons is issued following an appearance to defend then an application for summary judgment would be filed, the onus is far easier for the defendant as he merely has to show he has a bona fide defence to the action.