IN
THE HIGH COURT OF LESOTHO CIV/T/648/85

In
the matter of CIV/T/647/85

CIV/T/646/85

BARCLAYS BANK PLC

v

MR. THABANG NYEOE

MR. PAUL KEWKU TABIRITH

MR THABO LOUIS MAKHEKHE

JUDGMENT.

Delivered by the HOn. Mr Justice J L. Kheola on the
10th day of April, 1986

This is an action for provisional sentence in the sum of
R32,367-51 based on a suretyship (guarantee) agreement entered into
by the
defendant and the plaintiff on the 3rd day of June, 1985

A provisional sentence can be granted if the document
upon which the claim is based is liquid A liquid document may be
defined as
one which per se, and without the aid of extrinsic
evidence, discloses on actual indebtedness In Inter-Union Finance
Ltd v. Franskraalstand, Bpk , 1965 (4) S.A. 180 at p 181 a liquid
document was defined as a document wherein the debtor acknowledges
over his signature,
or that of a duly authorized agent, or is in law
regarded as having acknowledged without his signature being actually
affixed thereto,
his indebtedness in a fixed and determinate
sum of money To constitute a liquid docu­ment the acknowledgment
of debt must be clear ana certain on the face of the document
itself
i.e. there must be unequivocal or unconditional admission or
acknowledgment of indebtedness. The document must speak for itself,
if it does not and extrinsic evidence is necessary to prove the
defendant's indebtedness, the document is not liquid (Pepler v
Hirschberg 1920 C P.O. 438).

In the case of Harrowsmith v Ceres Flats (PTY)
Ltd 1979 (2) S A. 722 the suretyship was found to be not a liquid
document. The defendant

-2-

and his co-sureties had bound themselves for the payment
by the debtor, Margil, to the plaintiff -

"of all such sum or sums of money which are or may
at any time be or become owing by or claimable from the debtor to the
creditor
in respect of the purchase by the debtor from the creditor
of erf 2840 .... provided that our joint and

several liability . shall be limited to the sum of

R165,000 "

The Court held that on a proper construction of the deed
the defendant and his co-sureties did not unequivocally acknowledge
an indebtedness
for a certain and determinate sum of money They
acknow­ledged an indebtedness for an unspecified sum namely such
sum or sums
of money which were or might at any time have become
owing by or claimable from the debtor to the creditor. Extrinsic
evidence was
necessary to show the exact amount of money owed by the
debtor at any particular point of time.

The case of Wollach v. Barclays National Bank Ltd.
1983 (2) S.A 543 involved a deed of hypothecation for an
indeterminate amount of money subject to a maximum of R80,000. It was
agreed
that the exact amount of the debtor's liability any given
moment could be proved by a document such as a certificate. The Court
held
that because the exact indebtedness could only be ascertained by
extrinsic evidence, the document was not liquid

In a recent case of this Court, namely Barclays Bank
PLC v Khoboe CIV/T/586/85 (unreported) Levy, J., held that a
mortgage bond couched in the same words as in Harrowsmith's case,
supra, was not a liquid document on which a provisional sentence
could be obtained Although this case involved a mortgage bond it
seems
to me that the principle is the same The document must refer to
a fixed and determinate sum of money in order to be regarded as a
liquid document upon which a provisional sentence can be sought (HVD
Investments (Pty) Ltd v. Neffke, 1984 (2) S.A 368)

-3-

I now turn to the suretyship in the instant case. It
reads as follows

"I/We, the undersigned, do hereby bind
myself/ourselves

unto and in your favour as surety/ies in solidum
for and
co-principal debtor/s jointly and severally with TAB
CONSULT
(PTY) Ltd (hereinafter referred to as the said Debtor)
for
the due payment by the said Debtor of all or any monies
which
the said Debtor may now or from time to time hereafter owe
to
you from whatever cause and howsoever arising, as well as
for
the due and punctual performance and discharge by the
said
Debtor of any contract or agreement entered into by the
said
Debtor with you, provided that the amount recoverable
here-
under shall be limited to-thirty-five thousand three
hundred
and ten maloti plus such further sum or sums for interest
on
that amount, charges and costs. "

"I/We hereby agree and declare that the amount due,
owing and payable (hereinafter referred to as "the
indebtedness")
by the debtor and by me/us hereunder to the Bank
at any time (including interest and the rate of interest) shall be
determined and
proved by a certificate signed by any manager or
accountant of the Bank. It shall not be necessary to prove the
appointment of the
person signing any such certificate, and such
certificate stating the amount of the indebtedness of the debtor and
of myself/ ourselves
hereunder shall be binding on me/us and shall be
conclusive proof that the amount of my/our indebtedness hereunder is
due, owing
and payable at the date of signature thereof, which
certificate shall be valid as a liquid document against me/us in any
competent
court for the purposes of obtaining provisional sentence or
summary judgement against me/us thereon."

There is no doubt that on a proper construction of the
deed of suretyship the defendant acknowledged indebtedness to the
plaintiff
in an uncertain and indeterminate sum of money. Ex facie
the suretyship does not show how much money is owed by the debtor. In
order to ascertain the sum of money owed by the debtor resort
must be
made to a certificate by the manager of the plaintiff. That
certificate is extrinsic evidence and cannot make an illiquid
document liquid The document in the present,case is almost couched
in identical words as in Harrowsmith's case, supra.

-4-

I have come to the conclusion that the suretyship is not
a liquid document upon which a provision sentence can be based.

Provisional sentence is refused with costs.

J.L KHEOLA

JUDGE.

10th April, 1986.

For Plaintiff : Mr Harley For Defendant : Mr Addy