SUMMARY
In this matter, CRC Engineering (Pty) Ltd (“CRC Engineering”) claimed for provisional sentence against J C Dunbar & Sons (Pty) Ltd (“J C Dunbar”), based on an architect’s certificate which had allegedly been signed for or on behalf of the architect for J C Dunbar.
CRC Engineering’s summons expressly called upon J C Dunbar to state whether it admits or denies the signature on the contract between the parties, and also on the architect’s certificate which was issued in accordance with the contract.
In its answering affidavit to the provisional sentence summons, J C Dunbar provided a bare denial, simply alleging that it does not know who signed the architect’s certificate and further denying the validity of the architect’s certificate.
CRC Engineering did not deal with J C Dunbar’s denial in its replying affidavit. Instead, it provided copies of letters from the architects with similar signatures to those that appeared on the impugned architect’s certificate, in effort to have the court infer that the impugned architect’s document was indeed signed for or on behalf of J C Dunbar.
LEGAL QUESTION
The Court was faced with the question as to whether the impugned architect’s certificate was sufficiently authenticated for it to be a liquid document for purposes of provisional sentence and by extension, whether the Plaintiff had sufficiently proved the existence of a liquidated debt.
RATIO
The court rejected CRC Engineering’s claim for provisional sentence on the basis that the signatures on the copies of the documents that CRC Engineering submitted to compare with that on the impugned architect’s certificate, were unclear themselves and may have even been initialed by someone other than the stated signatory.
The Court further confirmed the principles relating to the proof of authenticity of a document as set out in Annama v Chetty 1946 AD 142, more particularly, that in situations much like the one in casu, two issues present themselves; the first being the proof of the disputed writing and the second being the proof of the authenticity or execution of the document itself.
The Court confirmed the rule of evidence that when the execution or authenticity of a document is in dispute, the onus to prove same rests on the party relying on the impugned document. The discharge of such onus may take as much as calling the alleged signatory to the document to confirm the authenticity of the document under oath, or at least obtaining confirmation of same from someone who saw the signatory signing the document. It is important to note that in cases where the defendant is called on to admit or deny the authenticity of the signature on the respective liquid document and the defendant responds with a bare denial of same, the onus persists on the plaintiff notwithstanding that the defendant’s bare denial may be struck.
Insofar as the provisional sentence claim itself was concerned, the Court confirmed the principle that there must be a liability by the defendant to the plaintiff which is apparent on the face of the summons, as read with its supporting documents, to found a prima facie case for provisional sentence; the absence of which renders any such action fatally flawed.
HELD
The Court dismissed CRC Engineering’s claim for provisional sentence because in the absence of evidence under oath authenticating the signature on the impugned architect’s certificate, CRC Engineering failed to sufficiently prove to the Court that the document basing the claim was valid. More simply, CRC Engineering had not proved that there was a liquid document upon which its claim for provisional sentence was based.
VALUE:
This case illustrates that not every document that appears to be a liquid document will suffice for a claim of provisional sentence and further, when in doubt as to the veracity or authenticity of the “liquid document”, it is better to labour to prove same under oath, than to simply attempt to draw inferences of same from other similarly-signed documents.
Written by Kgomotso Morudu and supervised by Musa Mathebula, 25 June 2018
