Mullan v Vladislavich and Another

• Jurisdiction: South Africa
• Citation: 1961 (1) SA 364 (T)

Mullan v Vladislavich and Another
1961 (1) SA 364 (T)

1961 (1) SA p364

Citation	1961 (1) SA 364 (T)
Court	Transvaal Provincial Division
Judge	Bresler J
Heard	October 11, 1960
Judgment	November 15, 1960

Flynote : Sleutelwoorde E

Interest — Usury — Act 37 of 1926 — Examination of plaintiff in terms of sec. 11 — 'Examine' in section — Meaning of — Provisional sentence — Onus on defendant — Failure to discharge.

Headnote : Kopnota

In section 11 of the Usury Act, 37 of 1926, which provides for the examination of the plaintiff in certain circumstances, the word F 'examine' should be regarded as tantamount to a fair investigation in which counsel for the examinee should have the right to assist and protect his client. It is therefore incumbent upon a Court to allow his counsel to examine him after his cross-examination.

The Court granted provisional sentence where it was not possible to say, on an over-all consideration of all the aspects, that defendant, despite some unusual aspects of plaintiff's case, had discharged the onus of G showing that he had a reasonable prospect of success in the main action.

Case Information

Action for provisional sentence. The facts appear from the reasons for judgment.

D. G. van der Byl, for the plaintiff: Sec. 11 of the Usury Act, 37 of 1926, does not provide for the re-examination of the plaintiff by his representative. I will be content to put questions to the plaintiff through the Court on points requiring clarification. The transaction was not usurious, Gervis v Hammon and Another, 1956 (4) SA 413. The defendants must show a substantial probability that usurious rates have been paid, Bhamjee (Pty.), Ltd v Mothle (Pty.), Ltd. and Another, 1952 (4) SA 500. The onus is on the defendant to show that the transaction is otherwise than as set out in the acknowledgment H

1961 (1) SA p365

of debt, Mahomed v Nagdee, 1951 (3) SA 127. Ex facie the documents they have been correctly stamped and are therefore admissible, sec. 22 (1) of Act 30 of 1911; Gleneagles Farm Dairy v Schoombee, 1947 (4) SA 66; de Meyer v Bam, 1951 (4) SA 68.

R. H. Peart, for the defendant.

Cur. adv. vult.

Postea (November 15th). A

Judgment

Bresler, J.:

Plaintiff sues the defendants jointly and severally for provisional sentence in respect of certain seven promissory notes B together with interest thereon. The notes in question are attached and are marked A to G but in order to avoid confusion have been remarked A1 to A7. Now although the defendants admit signing these notes they are resisting payment and they rely on certain transactions between C themselves and plaintiff which they say indicate that in effect he has also charged a usurious rate of interest. The details relied upon by defendants are the following, namely:

They state that being in need of ready cash they approached plaintiff in order to discount certain promissory notes made in their favour by one J. J. Jansen for £215, one W. P. van Wyk for £80, and one B. J. Venter D for £250, amounting in all to £930. Plaintiff discounted these notes they say for £831. At the time these notes were handed over defendants state that plaintiff was dissatisfied with them as no provision had been made for payment of interest by the various debtors in consequence of which the latter required the making of fresh promissory notes from the E makers providing for the payment of interest at the rate of ten per cent per annum.

Their affidavit then proceeds as follows, namely:

'It was a further condition of the agreement between the parties that we would furnish plaintiff with promissory notes made by us in his favour for all monies to be advanced by him to us in terms of the agreement, on the basis that our liability to plaintiff under these notes become effective in the event of the various debtors failing to sign the fresh F promissory notes which had been prepared by plaintiff. It was further agreed between the parties that plaintiff would return both defendants' own promissory notes of the various debtors which had been handed by defendants to plaintiff on fulfilment of the aforesaid condition. Defendants duly furnished the plaintiff with a series of promissory notes amounting to the sum of £831 as set out in the annexures to plaintiff's summons.'

G The affidavit says further that the various debtors did subsequently sign the fresh promissory notes with the exception of Venter. The defendants state that they are in possession only of the copy of the note signed afresh by Jansen which note is annexed marked 'B'. In view of the fact that Venter refused to sign a fresh promissory note the H plaintiff is said to have insisted that second defendant, Mrs. Vladislavich, give him a cession of a deed of cancellation entered into between her and Venter which she did. This is marked 'A' but confusion must be avoided because of the fresh marking.

The crux of defendants' case is that plaintiff was given possession of the fresh promissory notes of Jansen, van Wyk and Smith and of the foregoing cession but has failed to hand back to defendants their own promissory notes upon which he is suing and the original promissory

1961 (1) SA p366

Bresler J

notes of the four debtors. Plaintiff has refused, the defendants aver, to return the notes as he has obtained fresh promissory notes from three debtors and the cession but he has refused and neglected to do so.

A The defendants conclude by stating that as the transactions are loans the rate of interest exceeds the maximum permitted by sec. 1 sub-sec. (1) (d) of the Usury Act, 37 of 1926, and that plaintiff should be called upon to testify as a witness to...