Synopsis:
The constitutional validity of provisional sentence procedure, as set out in rule 8 of the Uniform Rules of the High Court was challenged in an application for leave to appeal against a judgment of the High Court. The Court held that the procedure unjustifiably limited the right of access to courts, under section 34 of the Constitution. It was therefore declared inconsistent to the extent that it does not give a court the power to refuse provisional sentence where the defence raised requires oral evidence and where the defendant is unable to pay the judgment debt to enter into the main case. The common law was thus developed to provide courts with a discretion to refuse provisional sentence where the defendant could show on affidavit that he or she was unable to satisfy the judgment debt, an even balance of prospects of success in the main case and a reasonable prospect that oral evidence at the main trial may tip the balance of prospective success in the defendant's favour. Judgment: Brand AJ (unanimous).
