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Magistrates' Courts Act, 1944 (Act No. 32 of 1944)

Regulations

Rules Regulating the Conduct of the Proceedings on the Magistrates' Courts of South Africa

14A. Provisional sentence

 

(1) Where by law any person may be summoned to answer a claim made for provisional sentence, proceedings shall be instituted by way of a summons in accordance with Form 2A of Annexure 1, calling upon such person to pay the amount claimed or failing such payment to appear personally or by practitioner upon a day named in such summons not being less than 10 days after the service upon him or her of such summons, to admit or deny his or her liability.

 

(2) A summons provided for in subrule (1) shall be issued by the registrar or clerk of the court and rule 5 shall apply mutatis mutandis.

 

(3) Copies of all documents upon which the claim is founded shall be annexed to the summons and served with it.

 

(4) The plaintiff shall set down a case for hearing for provisional sentence not later than three days before the day upon which it is to be heard.

 

(5)        

(a) Upon the day named in a summons for provisional sentence the defendant may appear personally or by a practitioner to admit or deny his or her liability or may, not later than three days before the day upon which he or she is called upon to appear in court, deliver an affidavit setting forth the grounds upon which he or she disputes liability.
(b) In the event of delivery of an affidavit provided for in paragraph (a) the plaintiff shall be afforded a reasonable opportunity of replying thereto.

 

(6) If at a hearing for provisional sentence the defendant admits his or her liability or if he or she has previously filed with the clerk of the court an admission of liability signed by himself or herself and witnessed by an attorney acting for him or her and not acting for the opposite party, or, if not so witnessed, verified by affidavit, the court may give final judgment against him or her.

 

(7) The court may hear oral evidence as to the authenticity of the defendant's signature, or that of his or her agent, to the document upon which claim for provisional sentence is founded or as to the authority of the defendant's agent.

 

(8)        

(a) Should the court refuse provisional sentence it may order the defendant to file a plea within a stated time and may make such order as to the costs of the proceedings as it deems fit.
(b) When an order provided for in paragraph (a) has been made the provisions of these rules as to pleading and the further conduct of trial actions shall mutatis mutandis apply.

 

(9) The plaintiff shall on demand furnish the defendant with security de restituendo to the satisfaction of the registrar or clerk of the court, against payment of the amount due under a judgment for provisional sentence.

 

(10) Any person against whom provisional sentence has been granted may enter into the principal case only if he or she shall have satisfied the amount of the judgment of provisional sentence and costs, or if the plaintiff on demand fails to furnish due security in terms of subrule (9).

 

(11)        

(a) A defendant entitled and wishing to enter into the principal case shall, within two months of the grant of provisional sentence, deliver notice of his or her intention to do so, and he or she shall deliver a plea within 10 days thereafter.
(b) Failing a notice or plea contemplated in paragraph (a) a provisional sentence shall ipso facto become a final judgment and the security given by the plaintiff shall lapse.