THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No 100/2003
REPORTABLE
BULELWA NDAMASE                                                        APPELLANT
and
FUNCTIONS 4 ALL                                                          RESPONDENT
Before:
Mpati DP, Scott, Mthiyane, Heher JJA and Southwood AJA
Heard:
17 March 2004
Delivered:    31 March 2004
In terms of the Magistrates’ Courts Act, 32 of 1944, magistrates courts have
jurisdiction in respect of claims for provisional sentence – Rule 14A of Magistrates’
Courts Rules of Court not ultra vires Magistrates’ Courts Act – claims for provisional
sentence permissible in magistrates’ courts.
_________________________________________________________
JUDGMENT
_________________________________________________________
SOUTHWOOD AJA

[1] The issue in this appeal is whether Rule 14A of the Magistrates’
Courts Rules of Court is ultra vires the Magistrates’ Courts Act, 32 of
1944 (‘the Act’) and accordingly whether magistrates’ courts have no
jurisdiction in respect of claims for provisional sentence.
[2] The respondent (the plaintiff in the court of first instance)
instituted an action against the appellant (the defendant in the court of
first instance) in the Durban magistrates’ court in which it claimed
provisional sentence on two dishonoured cheques, each for R5 000.
The appellant opposed the relief sought inter alia on the ground that
Rule 14A, in terms of which the action was brought, is ultra vires the
Act, and accordingly that the court had no jurisdiction. The appellant’s
defence on the merits was based on duress. The magistrate found that
Rule 14A was not ultra vires the Act, that the appellant had not shown
that the probabilities of success in the principal case were against the
respondent and granted provisional sentence. The appellant appealed
unsuccessfully to the Pietermaritzburg High Court against the
magistrate’s decision that the magistrates’ court has jurisdiction in
actions for provisional sentence. This appeal is with the leave of the
court below.
[3] In view of the judgment of this court in A Avtjoglou v First National
Bank of Southern Africa (Case No 17/2003) delivered on 19 September

2003 which confirmed the finding in Scott-King (Pty) Ltd v Cohen 1999
(1) SA 806 (W) at 825C-G that, generally, an order granting provisional
sentence is not appealable, the parties were requested to address the
appealability of the decision that the magistrates’ court has jurisdiction
to hear actions for provisional sentence. During argument the
respondent’s counsel correctly conceded that the issue of whether
Rule 14A is ultra vires the Act is, in effect, a special plea to jurisdiction,
and is appealable. See Steytler NO v Fitzgerald 1911 AD 295 at 305
(per De Villiers CJ), 313 (per Innes JA) and 327 (per Laurence JA); Du
Toit v Ackerman 1962 (2) SA 581 (A) at 587D-E and Maize Board v
Tiger Oats Ltd and Others 2002 (5) SA 365 (SCA) paras 9 and 14.
[4] In terms of s1 of the Act ‘the rules’ means the rules referred to in
s6 of the Rules Board for Courts of Law Act, 107 of 1985. That section
provides that the Board may, with a view to the efficient, expeditious and
uniform administration of justice in the lower courts make rules for the
lower courts regulating –
‘(a) the practice and procedure in connection with litigation’.
The Rules Board introduced Rule 14A into the Magistrates’ Courts
Rules with effect from 11 April 1994. (It is for all practical purposes the
same as Rule 8 of the Uniform Rules of the High Court).
[5] It is well-established that the magistrates’ court has no jurisdiction

and powers beyond those granted by the Act (compare Riversdale
Divisional Council v Pienaar (1885) 3 SC 252 at 256; Stork v Stork
(1903) 20 SC 138 at 139; Gqalana and others v Knoesen and another
1980 (4) SA 119 (E) at 120; Mason Motors (Edms) Bpk v Van Niekerk
1983 (4) SA 406 (T) at 409E-F; Venter v Standard Bank of South Africa
[1999] 3 All SA 278 (W) at 280i-j) and that in this context, jurisdiction
means ‘the power vested in a court by law to adjudicate upon,
determine and dispose of a matter’ (see Ewing McDonald & Co Ltd v M
& M Products Co 1991 (1) SA 252 (A) at 256G-H; Graaff-Reinet
Municipality v  Van Ryneveld’s Pass Irrigation Board 1950 (2) SA 420
(A) at 424; Spendiff NO v Kolektor (Pty) Ltd 1992 (2) SA 537 (A) at
551C). It is also well-established that powers may be conferred
expressly or by implication. Where the Act is silent on a matter the
general rule is that by expressly conferring on the magistrates’ courts
jurisdiction in respect of a particular matter, the Act confers by
implication the ancillary powers necessary to give effect to that
jurisdiction. In regard to matters specifically provided for in the Act the
Act will govern that situation (compare Reuters v Clarke 1922 EDL 303
at 305; Van der Merwe v De Villiers and another 1953 (4) SA 670 (T) at
672F-673C; Hatfield Town Management Board v Mynfred Poultry Farm
(Pvt) Ltd  1963 (1) SA 737 (SR) at 739E-F). The primary question to be
answered therefore is whether the Act expressly or by implication

confers on a magistrates’ court jurisdiction to grant provisional sentence.
[6] In arguing that the Act did not do so the appellant’s counsel
contended that the Act does not expressly make provision for the grant
of a provisional sentence judgment or the execution of such a judgment.
The absence of provision for the immediate execution of a provisional
sentence judgment is of crucial significance, so it was argued, as such
execution is an integral part of the procedure. He also argued that
execution is of itself appealable in terms of s83(b) of the Act which, in
relation to provisional sentence is inconsistent with the absence of
appealability (referred to in para 3). He further argued that provisional
sentence is a ‘right of action’ in itself and not simply a procedural step
by a plaintiff armed with a liquid document and that the statutory powers
conferred on the Rules Board do not empower the Rules Board to
exceed the limits of jurisdiction granted to a magistrates’ court.
[7] In general, the civil jurisdiction of the magistrates’ court is
determined by reference to its area of jurisdiction (s26), the persons in
respect of whom the court has jurisdiction (s28) and the causes of
action in respect of which it has jurisdiction (s29). The Act provides
expressly that the magistrates’ court shall have no jurisdiction in respect
of certain specified matters, all of which relate to causes of action (s46).

The relevant part of s29 reads as follows –
‘(1)
Subject to the provisions of this Act, the court, in respect of causes of action,
shall have jurisdiction in –
. . .
(d)
actions on or arising out of a liquid document … where the claim … does not
exceed the amount determined by the Minister from time to time by notice in the
Gazette’ (presently R100 000).
While s29(1)(d) does not expressly provide that the magistrates’ court
shall have jurisdiction in actions for provisional sentence, s46 does not
expressly provide that the court shall not have such jurisdiction. With
regard to jurisdiction the Act therefore differs in two important respects
from its predecessor, the Magistrates’ Courts Act 32 of 1917. In the
corresponding provisions of that Act no provision was made for the court
to have jurisdiction in ‘actions on or arising out of a liquid document’ and
it
was
expressly
provided
that
namptissement
/
handvulling
(ie provisional sentence) was excluded from the jurisdiction of the
magistrates’ court.
[8] The question is what is meant by the word ‘actions on or arising
out of a liquid document’. The term ‘liquid document’ is well known and
has a clear meaning in relation to a claim for provisional sentence.
Subject to minor qualification, not presently relevant, it is a document in
which a person unconditionally acknowledges, over his signature or that

of his agent, his indebtedness to the creditor in an ascertained amount
of money, the payment of which is due to the creditor. It is of the
essence of a liquid document that, standing on its own, it establishes the
indebtedness of the debtor without the necessity for any evidence
extrinsic thereto. (Union Share Agency and Investment Ltd v Spain 1928
AD 74 at 79-80; Rich and Others v Lagerwey 1974 (4) SA 748 (A) at
754G-H; Wollach v Barclays National Bank Ltd 1983 (2) SA 543 (A) at
552A-D; Harrowsmith v Ceres Flats (Pty) Ltd 1979 (2) SA 722 (T) at
743F-H).
[9] Actions on liquid documents were well known in the Roman-Dutch
law as it was applied in Holland and later at the Cape. The
characteristics of such actions, briefly summarised, were the following.
A creditor who was in possession of a liquid document was entitled to
institute an action against the debtor who had acknowledged his
indebtedness to the creditor in the document, for payment of the
indebtedness reflected therein. This was the ordinary procedure
whereby a creditor could obtain a final order for payment of the
acknowledged indebtedness. However, the creditor had an additional
remedy: the interlocutory procedure of provisional sentence. To obviate
the delay and expense of bringing the principal case to finality and to
enable the creditor to obtain prompt payment of the amount
acknowledged to be owing, pending finalisation of the principal case, the

creditor was entitled to seek a provisional judgment based on the liquid
document. The creditor was entitled to do so at any stage of the
proceedings. The court would grant provisional sentence on the
presumption of the authenticity and legal validity of the document
produced to the court – the court being provisionally satisfied that the
creditor would succeed in the principal case. The debtor was then
obliged to pay the debt evidenced by the document against security de
restituendo furnished by the creditor. If the creditor was unable to
provide security the debtor was obliged to pay the amount of the claim
into court pending the outcome of the principal case. (See 1 Menzies 1-
6 Prefatory Remarks on Provisional Sentence; Colonial Treasurer v
Smit 1907 TS 747 at 750-751; Sonfred (Pty) Ltd v Papert 1962 (2) SA
140 (W) at 142E-143E; CGE Rhoode Construction Co. (Pty) Ltd v
Provincial Administration Cape, and another 1976 (4) SA 925 (C) at
927A-928A; Herbstein and Van Winsen The Civil Practice of the
Supreme Court of South Africa 4th ed. 960-962; Malan et al, Provisional
Sentence on Bills of Exchange, Cheques and Promissory Notes (1986)
at 1-15).
[10] Provisional sentence procedure and the granting of the
interlocutory relief of provisional sentence has remained a part of South
African law. At the Cape, rules governing the procedure were introduced
in the High Court and it became the practice to seek provisional

sentence at the inception of the principal case by means of a special
form of summons. This summons served a dual purpose. It instituted the
principal case in which definitive relief was claimed and it instituted the
proceedings for the interlocutory relief of provisional sentence. That
interlocutory relief was, as was the position in Roman-Dutch Law,
payment against security de restituendo. (See 1 Menzies 1-2; Sonfred
(Pty) Ltd v Papert supra at 143B-C; CGE Rhoode Construction Co. (Pty)
Ltd v Provincial Administration Cape, and another supra at 928A-D;
Herbstein and Van Winsen supra at 960-962 and Malan et al at 1-15). In
the High Court the procedure is now governed by Rule 8 of the Uniform
Rules which incorporates the characteristics already described.
[11] The interlocutory procedure of provisional sentence (described as
the ‘extraordinary, summary and interlocutory procedure of provisional
sentence’ in Dickinson v South African General Electric Co (Pty) Ltd
1973 (2) SA 620 (A) at 641B) is therefore an essential ancillary
component of an action based on or arising out of a liquid document
(see Colonial Treasurer v Smit supra at 750). Accordingly, there is no
reason why the ordinary meaning of the words ‘actions on or arising out
of a liquid document’ should not be understood to include this
interlocutory procedure. The appellant’s counsel nevertheless persisted
with his argument that the Act does not expressly make provision for an
interlocutory judgment of provisional sentence or for the execution of

such judgment.
[12] In support of the first argument the appellant’s counsel relied
heavily on s48 of the Act which, he argued, provides for the judgments
which a magistrates’ court may grant and does not include interlocutory
judgments of provisional sentence. In my view reliance on the provisions
of s48 is misplaced. The section clearly applies to judgments which a
magistrates’ court may grant ‘as a result of the trial of an action’ and is
not applicable to provisional sentence proceedings (compare Scott-King
(Pty) Ltd v Cohen supra at 827H-J). Furthermore, it is clearly not the
source of power for a magistrates’ court to grant interlocutory relief. The
existence of such a power has not been questioned before us and is
clearly recognised in s36(1)(d), s49 and s83(b) of the Act. Compare also
Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1)
SA 839 (A). In any event, the power to grant the interlocutory relief of
provisional sentence is, by implication, conferred when the magistrates’
court is given jurisdiction to entertain actions based on or arising out of
liquid documents.
[13] Regarding the second argument, the Act provides in two sections
for the execution of judgments. Section 62(1) provides that any court
which has jurisdiction to try an action has jurisdiction ‘to issue against
any party thereto any form of process in execution of its judgment in

such action’. Section 66 provides that whenever a court gives judgment
for the payment of money or makes an order for the payment of money
in instalments and that judgment is not complied with, the judgment
shall be enforceable by execution against the property (first movable
and then immovable) of the person against whom the judgment was
given. It is clear from these provisions of the Act that the judgment to be
executed upon need not be a judgment in terms of s48 and can be an
interlocutory order. ‘Judgment’ is defined in s1 to include, in a civil case,
a decree, a rule and an order. Interlocutory relief clearly falls within that
definition. Finally, it must be pointed out that the suggestion of the
appellant’s counsel that there must be an order for execution before
execution process may issue and that such an order is in terms of
s83(b) subject to appeal is not correct. Sections 62 and 66 do not
require an order for execution to be made before process may issue.
The person in whose favour judgment has been given has the right to
issue a warrant of execution immediately and the issue of the warrant of
execution is not subject to appeal.
[14] A magistrates’ court therefore has jurisdiction in respect of claims
for provisional sentence and has all the ancillary powers necessary to
give effect to that jurisdiction. When the Rules Board enacted Rule 14A
it was not extending the jurisdiction of the magistrates’ court but was
merely regulating the practice and procedure of provisional sentence in

the magistrates’ court as it was entitled to do.
[15] In the result the appeal is dismissed with costs.
________________
B R SOUTHWOOD
ACTING JUDGE OF APPEAL
CONCUR:
MPATI DP
SCOTT JA
MTHIYANE JA
HEHER JA