Twee Jonge Gezellen (Pty) Ltd and Another v Land and Agricultural Development Bank of South Africa t/a The Land Bank and Another

The first applicant, Twee Jonge Gezellen (Pty) Ltd, a wine-farming company, and its director, Nicolas Charles Krone, signed an acknowledgement of debt in favour of the Land and Agricultural Development Bank of South Africa (the Land Bank) for approximately R39.7 million, payable by instalments, with an acceleration clause in the event of default. The applicants allegedly defaulted on their instalment obligations, having paid only R1.8 million instead of more than R20 million due. The Land Bank instituted provisional sentence proceedings in the Western Cape High Court based on the acknowledgement of debt. The applicants raised defences alleging an oral agreement reducing the debt to R20 million and an undertaking by the Land Bank to extend time for payment. After their defences failed, the applicants challenged the constitutionality of the common law remedy of provisional sentence and rule 8 of the Uniform Rules, arguing that it violated the rights to equality and a fair hearing under sections 9(1) and 34 of the Constitution.

Leave to appeal was granted; the Constitutional Court entertained and considered the constitutional challenge to the provisional sentence procedure in its narrowed form.

This case is significant for clarifying the constitutional scrutiny applicable to the long-standing common law remedy of provisional sentence. It confirms that provisional sentence constitutes a constitutional matter under sections 9 and 34 and underscores the Constitutional Court’s role in assessing whether traditional civil procedure mechanisms remain compatible with constitutional rights, while recognising the commercial utility and historical legitimacy of the remedy.