Pieter Gideo van der Merwe v Bonaero Park (Edms) Beperk

The respondent (plaintiff) obtained provisional sentence against the appellant (defendant) on 3 December 1996 for payment of R116,073.45 based on a liquid document. The defendant's application to set aside the provisional sentence failed, but the court extended the time period for him to proceed to trial until 7 October 1997. The defendant's notice of intention to proceed to trial was delivered two days late on 9 October 1997. Prior to this, on 26 September 1997, the defendant had requested the plaintiff to furnish security de restituendo in terms of Rule 8(9). The plaintiff refused by letter dated 29 September 1997, stating that the defendant was not entitled to request security until he had first paid the judgment debt. The defendant did not respond to this letter but proceeded to file his notice of appearance two days late. The plaintiff then issued a writ of execution, and the defendant brought an urgent application for condonation of the late filing of his notice of appearance. The court a quo dismissed the condonation application with costs but granted leave to appeal.

• Whether the plaintiff failed to furnish security on request in terms of Rule 8(9) of the Uniform Rules of Court
• Whether payment of the judgment debt must precede a request for security de restituendo under Rule 8(9)
• Whether the defendant's notice requesting security was sufficient without containing an express offer to pay
• Whether the defendant was entitled to proceed to trial under Rule 8(10)
• Whether condonation should be granted for the late filing of the notice of intention to proceed to trial

The appeal succeeded with costs. The order of the court a quo was set aside and replaced with an order that the applicant's application for condonation succeeds with costs.

The binding legal principles established are: (1) Under Rule 8(9), a defendant against whom provisional sentence has been granted may request security de restituendo without first paying the judgment debt - the rule contemplates simultaneous exchange (security against payment); (2) A notice requesting security that tracks the wording of Rule 8(9) and states it is made 'against payment of the judgment debt' constitutes a sufficient request and contains an implicit offer to pay; (3) Where a plaintiff fails to furnish security on such a request, this constitutes a failure to furnish security 'on request' under Rule 8(10), entitling the defendant to proceed to trial; (4) The words 'final judgment' in Rule 8(11) do not preclude the granting of condonation under Rule 27 for late filing of a notice of intention to proceed to trial.

The court noted that requiring actual payment before a request for security may be made would be highly prejudicial to defendants, as they would have to pay the judgment debt without any assurance that the plaintiff would be able to repay it if the defendant ultimately succeeded at trial. The court also observed that it would have been preferable if the court a quo's attention had been drawn to the decision in Kemp v Booysen at an earlier stage. The court implicitly approved the practical arrangement seen in Super Eight Promotions (Pty) Ltd v Dial Picture Productions (Pty) Ltd 1976(2) SA 748(T) where security was furnished before payment was made.

This case provides authoritative interpretation of Rules 8(9) and 8(10) of the Uniform Rules of Court regarding provisional sentence proceedings. It establishes the important principle that security de restituendo and payment of the judgment debt must occur simultaneously, not sequentially. The judgment clarifies the proper procedure for a defendant who wishes to proceed to trial after provisional sentence has been granted, and confirms that a plaintiff cannot refuse to furnish security on the basis that payment must precede the request for security. The case also confirms that condonation remains available under Rule 27 for late filing of notices to proceed to trial, notwithstanding the reference to 'final judgment' in Rule 8(11).