Counter Point Furnishers CC v S M Fraser t/a Salica

The respondent sold an immovable property to the applicant in terms of a written agreement of sale. Clause 17.1 of the agreement provided that a party causing delay in the registration of transfer would be liable for interest on the purchase price at the rate charged by a financial institution on first home loan mortgages. The respondent alleged that the applicant caused a delay by failing to furnish a required guarantee, was notified of default on 8 May 2009, remedied the default on 3 September 2009, and was therefore liable for interest calculated at 11% per annum. The respondent instituted provisional sentence proceedings based on the written agreement. The High Court granted provisional sentence and refused leave to appeal. The applicant then sought leave to appeal from the Supreme Court of Appeal.

The application for leave to appeal was dismissed with costs.

The case confirms the restrictive approach to the appealability of provisional sentence judgments in South African law and underscores that alleged lack of liquidity or potential injustice does not, without more, constitute exceptional circumstances justifying an appeal. It reinforces the authority of Avtjoglou and limits the practical scope of the exception suggested in Smit.