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[2021] ZAGPJHC 493
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Da Cruz v Bernardo (2020/26428) [2021] ZAGPJHC 493; [2022] 1 All SA 414 (GJ); 2022 (2) SA 185 (GJ) (10 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2020/26428
REPORTABLE:
YES/-
OF
INTEREST TO
OTHER
JUDGES: YES
REVISED:
YES/NO
Date:…10
August 2021
In
the matter between:
DA
CRUZ, VICTOR MANUEL
ROSA
Applicant
and
BERNARDO,
FERNANDO DA
SILVA
Respondent
JUDGMENT
Delivered:
This judgment is handed down
electronically by circulation to the parties'
representatives by email.
TURNER
AJ:
[1]
This judgment addresses two legal questions relating to the
in
duplum
rule.
1.1
First, whether the
in
duplum
rule applies to
mora
interest claimed on
a liquidated debt as contemplated in
section 1(1) of the Prescribed
Rate
of lnterest Act, 55 of 1975.
1.2
Second, whether the
in
duplum
rule can be relied upon to
limit the liability of a defendant flowing from a judgment in which
the defendant is ordered to pay interest
which, when calculated,
exceeds the capital amount of the judgment.
[2]
The current application follows a
judgment granted
by
this
Court,
per Foulkes-Jones AJ, in which the applicant, as plaintiff, was
successful against the respondent. The facts set out below
are taken,
primarily, from the judgment.
[3]
In late 2007, the applicant entered into
negotiations with the respondent to invest in one
or more of the respondent's businesses
and concluded a written agreement on
29
October 2007. The party with whom the plaintiff was alleged to have
contracted was Vando Trust ("the Trust") and pursuant
thereto, the applicant made payment of R903,500.00 into an account in
the name of VF Audio Visual Systems CC ("VF Audio").
It appears that the respondent was
involved in controlling the affairs of both VF Audio and the Trust.
[4]
Soon thereafter, the deal collapsed and
on 3 December 2007, the applicant claimed repayment of his
investment. Two amounts, totalling
R91 000, were paid in early 2008
and when no further payments were made, the applicant instituted
action on 27 May 2008 to recover
the balance of the amount that he
had paid. The first defendant in the action was the Trust and the
second defendant was the VF
Audio Visual CC. The respondent was
cited
as
third defendant
in his capacity as
a
trustee
of
the
Trust.
Subsequently,
the other two trustees of the Trust were joined as fourth and fifth
defendants, respectively. There were a number
of delays in proceeding
with the litigation and, in late 2015, the respondent was joined to
the action in his personal capacity,
as the sixth defendant. The
claim pleaded against him was for: breach of warranty of authority by
him; an order that the Trust
was his
alter
ego;
and
that the Trust was a sham as it did not comply with the necessary
formalities for its formation.
[5]
Shortly
before the trial, the Trust delivered a consent to judgment in terms
of rule 31(1) for the sum of R812,500.00 together with
interest
thereon and payment of costs of suit. The Trust had no bank account
and no funds and so its tender of judgment against
it was,
at
best,
an empty tender.
[1]
Consequently,
the
applicant
pursued
the
respondent
in
his personal capacity.
[6]
In
the
trial
before
Foulkes-Jones
AJ,
the applicant
asserted
that
the
respondent
should
be found
''jointly
liable with the first defendant (the Vando
Trust)
on
the
basis
of
breach of warranty of authority by him and/or disregarding
the
trust form
(the
alter ego claim). The plaintiff also submits that the sixth defendant
be held jointly and severally liable with the first defendant
in
respect
of
the latter's consent
to
judgment and that the court should pierce the trust veneer and hold
the
sixth
defendant
personally liable for the indebtedness of the first defendant to the
plaintiff.
"
[2]
[7]
After
finding that the claim against the respondent had not prescribed
[3]
,
Foulkes-Jones AJ turned to the claims on the merits. ln finding
against the respondent, the learned Judge found and ordered as
follows, without any discussion on the liability for or calculation
of interest payable on the capital amount of the debt:
"79
.
In the present matter, the third
defendant
and
for the (sic) matter the first defendant, acted outside the scope of
its authority to act and in the current matter, it would
be
manifestly unfair and unjust to visit the results thereof on the
Plaintiff (a third party in the transaction), who
bona
fide
parted with monies raised
against his home bond. He undoubtedly relied on the representations
made to him by what he perceived to
be a good and trusted friend. The
latter sought by his conduct to mislead not only the Plaintiff but
also the Court by making misrepresentations
which were untrue in his
pleadings.
80.
I find in all the circumstances that the
conduct of the sixth defendant was opportunistic, calculated to evade
his obligations
to
the plaintiff and that accordingly, the plaintiff must succeed on
this score in his claim that the veil should be pierced. I
therefore
make the following order:
80.1
The Third and Sixth Defendants are
ordered jointly and severally, the one paying the other to be
absolved:
80.1.1
To make payment to the Plaintiff in the
amount
of
R818,250.00;
[It is common cause that
the capital
amount
stated in the order of R818,250.00 was an error and that the correct
capital amount is in fact R812,500.00.}
80.1.2
Interest on the amount
a
tempore mora
from 3 December 2007 to
date of payment;
80.1.3
Costs of suit including the costs of the
Sixth
Defendant's
Special Plea."
[8]
The judgment was delivered on 22 May
2020 and the respondent did not apply for leave to appeal. On 17 July
2020, the applicant's
attorneys sent a letter to the respondent's
attorney demanding payment of the correct capital amount of
R812,500.00 plus interest
in the amount of Rl,590,952.91. The letter
also set out the
plaintiffs
calculation
of
the interest awarded in terms of the Prescribed Rate of Interest
Act
-
15.5% per
annum on a straight-line basis at R345.03 per day calculated from 3
December 2007 to the date of the letter.
[9]
On 30 July 2020, the respondent's
attorney replied, disputing the calculation of the interest amount
and contending that the
in duplum
rule applied to limit the interest
payable by the respondent to R812,500.00. Further correspondence was
exchanged in which the parties
argued their respective positions.
Thereafter, the following payments were made by the respondents to
the applicant: (i) on 5 August
2020, an amount or R812,500.00; (ii)
on 18 August 2020 a further payment of R812,500.00.
[10]
The applicant's notice of motion in the
current application claims the following relief:
1.
An order declaring that the
in
duplum
rule does not apply to the
moratory interest awarded in the judgment and order under Case No.
15636/2008 in the Gauteng Division
of the High Court, Johannesburg,
by Her Ladyship Ms Acting Justice Foulkes-Jones ("the
judgment").
2.
An order declaring
that
the
respondent
remains
indebted
to
the applicant in the amount of R785,008.56 being the balance due in
respect of moratory interest awarded in the judgment.
3.
Interest on the aforesaid amount
ofR785,008.56 a tempore mora to date of final payment, both days
inclusive.
4.
Directing the respondent to pay the
applicant's costs of this application.
[11]
The respondent did not deliver an
answering affidavit but instead delivered a notice in terms of rule
6(5)(d)(iii) identifying what
he asserts to be the correct legal
position and the point to be determined, as follows:
"The
in duplum
rule
applies to the running of interest on the capital amount awarded in
the judgment under Case No. 15636/2008 and that if the
applicant
is
entitled
to claim
any
additional
interest,
such
interest
is
to be
calculated from the date of the
judgment to the date of payment of the judgment debt."
[12]
The parties are not in dispute in
relation to the additional amount of the interest that would be
payable if interest were to be
calculated
at the prescribed rate for the full
period from 3 December 2007 to date of the judgment. This amount is
R785,008.56, being the total
interest amount of Rl,597,508.52
less
the
R812,500.00
already
paid. The parties are also not in dispute that the respondent is
liable for interest on the judgment debt (taking into account
the two
payments ofR812,500.00 made in August 2020).
[13]
Prior to the hearing, I sent a note to
the parties identifying specific questions to be addressed
at the hearing of the matter and invited
counsel to make written submissions in advance of the hearing, if
they so wished. These
points were
–
i.
"Does this application require the
Court to interpret the judgment and order of Foulkes-Jones AJ?"
ii.
Does
the relief claimed by either party in the current application involve
a variation of the order (2) granted by Foulkes-Jones
AJ?
[4]
"
iii.
. Is this Court
functus officio
in relation to the third and
sixth defendants' liability to the plaintiff, for interest on the
capital sum?"
[14]
On Monday 8 March, I received the
parties' joint submission in response to my enquiries, to the
following effect: (i) the parties
are
ad
idem
that this application
does not require the Court to interpret
the judgment of Foulkes-Jones AJ; (ii) neither party seeks a
variation of the order granted
by Foulkes-Jones AJ; (iii) the parties
are
ad idem
that
the Court is indeed
functus officio
in relation to the third and sixth
defendants' liability
to
the
plaintiff
for
interest
on
the
capital
sum
per
se.
However,
while
both
parties are
ad idem
that
the Court is
functus officio
in
relation to the liability for interest
per se,
it
is not
functus officio
in
relation to the issue of whether the
in
duplum
rule applies to the interest
awarded in the judgment.
[15]
During
the hearing, I asked the parties whether the issue raised by them was
one contemplated by the full court in
Transvaal
Canoe Union,
[5]
where
the parties agree that
the
issue raised is accessory or consequential to the judgment and is one
in which they now agree should be incorporated
in
the judgment.
[6]
Mr
Kairinos
SC,
who appeared
for
the applicant, confirmed that there was no agreement of this sort and
that if I found that the Court is
functus
officio
and
cannot revisit the question as to whether the
in
duplum
rule
should apply to interest awarded in the judgment, then I should make
that finding and confirm the respondent's liability of
the
outstanding balance.
[16]
I deal with this issue in the second
part of this judgment but, as neither party considers that the Court
is
functus officio
in
relation to the issue of whether the
in
duplum
rule applies to limit the
interest awarded in the judgment, I deal first with the vexed
question
of
whether the
in duplum
rule
applies to limit
mora
interest
payable on a claim for a liquidated amount.
The
in du
p
lum
rule
[17]
As this judgment deals with the
circumstances in which the
in duplum
rule should
apply, it would be useful at the outset
to record a clear definition of the rule.
[18]
In
Oneanate,
[7]
Zulman JA described
the
rule as follows:
"It
provides that interest stops running when the unpaid interest equals
the outstanding capital. When due to payment, interest
drops below
the outstanding capital, interest again begins to run until it once
again equals that amount."
[19]
In
Paulsen
[8]
,
Madlanga
J
[9]
held
[10]
:
"It
provides that arrear interest ceases to accrue once the sum of the
unpaid interest equals the amount of the outstanding
capital. ...
".
.. The overarching purpose of the rule is to protect debtors from
being crushed by the never-ending accumulation
of
interest on an outstanding debt. As Tuchten AJ neatly put it in
Bellingan"
[11]
'(T]he
jurisprudential foundation for the
restriction [of interest to the
duplum]
was the policy consideration that
debtors whose affairs are declining should not be entirely drained
dry
"'
[20]
In
a concurring judgment, Moseneke DCJ
[12]
held
[13]
-
"It
is a common-law
norm that regulates
the accrual of interest on a debt that
is
due and
payable. The rule is that arrear interest stops accruing when the sum
of the unpaid interest equals the extent of the outstanding
capital.
..
The
plain policy consideration underlying the rule is to prevent a broken
debtor from being pounded by the ever-growing interest
burden. The
purpose of the rule is dual. It permits a creditor to recover double
the capital advanced to the debtor whilst it seeks
to alleviate the
plight of debtors in financial distress."
[21]
Wallis
JA
[14]
in the earlier SCA
judgment
in
Paulsen
[15]
had
recorded the following:
"Once
interest is payable on a debt the
in duplum
rule
potentially
comes into play. The effect of that rule is clear. Where a debt is
owed and bears interest, the amount of such interest may not
exceed
the capital amount. It was argued that this restriction only applied
to arrear interest but, as the cases show, that expression
merely
means the accumulated interest on the amount in arrears. It excludes
amounts already paid by way of interest and relates
only to interest
that has accrued but is unpaid." (emphasis added)
[22]
Paulsen
and
Oneanate
dealt
with a loan agreement and an overdraft respectively, agreements to
which the rule clearly applies and neither case interrogated
the type
of debts that are covered by the
in
duplum
rule. The focus of both of
those cases was on whether the rule was suspended by the institution
of legal proceedings to recover
the debt.
[23]
In
LTA
Construction
[16]
an
arbitrator had determined contractual liability of the Administrator
to LTA on two claims and had made an award of interest on
the capital
sums determined by him. The arbitrator found that the administrator
was liable for: i) a capital sum of R63,080.30
plus interest from the
due date 30 July 1991 until 23 December 1997 - which, at the bank
prime rate provided for in the contract,
amounted to R138,593.21; ii)
a capital amount of R57,750 plus interest at the contractual rate
calculated from 23 August 1993 which,
by December 1997, equated to
R63,021.25. The total amount awarded, including capital and interest,
was therefore R322,444.76.
[24]
After
the arbitrator had handed down his award, the Administrator did not
pay the total amount awarded but only paid an amount of
R241,660.60
being twice the capital amount awarded (i.e. capital plus interest at
in
duplum).
When
the Administrator applied
to
Court
on
a
separate
issue
relating
to
the
contract,
LTA
brought
a
counter-
application
requesting that the arbitrator's award be made an order of Court and
judgment for the unpaid difference. The Administrator
resisted the
counter-application asserting that its liability was limited by the
in
duplum
rule.
Only
the
counter
application was appealed to the Appellate Division.
[17]
[25]
After
reviewing the historical development of the
in
duplum
rule
from the Roman Law, the Law of the Middle Ages, the Dutch Jurists and
the Roman-Dutch Law, Joubert JA recorded the following
in relation to
the
in
duplum
rule
[18]
:
"Na
my oordeel is die renteverbod
in
duplum
(meer korrek
ultra
sortem),
soos dit in die klassieke
tydperk van die Romeinse reg ten opsigte van die oploop en
invordering
van a
gt
erstalli
g
e
rente
tot
die bedrag van die kapitaalsom gegeld het, wel in die provinsie
Holland en Wes-Friesland geresipieer. (emphasis added)
[26]
The
Court confirmed that the rule applied in South Africa and rejected
LTA's argument that the
in
duplum
rule
applied only to loan agreements and not to other agreements.
[19]
Advokaat
Burman
het
ook betoog dat die renteverbod
in
duplum
slegs op geldlenings
betrekking het en daarom nie in die
onderhawige
geval toepaslik is nie. Die partye bet
met mekaar 'n kontrak vir
die
totstandbringing van werke deur LTA Construction Bpk teen vergoeding
gesluit. In die algemene
voorwaardes
van die kontrak is daar voorsiening vir
rente op die kontrakprys gemaak. Wat hierdie betoog uit die oog
verloor en daarom onaanvaarbaar
is, is dat die renteverbod
in
duplum
glad nie tot geldlenings
beperk is nie. In beginsel geld dit vir
alle
kontrakte uit hoofde
waarvan
'n ka
p
itaalsom
verskuldi
g
is
wat onderhewi
g
aan
'n bepaalde
rentekoers
is
,
soos
su
p
ra
aan
g
etoon
is
.
(emphasis added)
[27]
Having
found that the rule applies to interest on debts arising from all
contracts,
not
only loan agreements,
Joubert
JA confirmed
the
Court
a
quo
was
correct in applying the rule and limiting the interest recoverable.
Importantly, the decision of an arbitrator is not a judgment,
but a
contractual debt, and so the Court did not see any difficulty in
refusing to enforce the award for the additional interest.
[20]
[28]
In
Bellingan
[21]
at
p
399B, Tuchten AJ (as he then was) dealt with the
in
duplum
rule
as
follows:
"The
in
duplum
rule
precludes the recovery of accumulated interest to the extent that it
exceeds the capital sum. The prohibition
on
interest
in
duplum
is
not limited to money lending transactions. In principle it applies to
all contracts arising from which a capital sum is owed
which is
subject to a specific rate of interest. There is no doubt that the
prohibition on interest on
in
duplum
applies
to unpaid arrear ("agterstallige") interest.
[22]
Mr
Harris [for the respondents] submits that the operation of the rule
is however not restricted to arrear unpaid interest and argues
that
it applies to every case in which interest exceeds the capital and
remains unpaid.
After
referring to
Stroebel
v Stroebel
[23]
,
the
Learned
Judge
went on
-
"Mr
Harris submitted that these passages were authority for the
proposition that the
in duplum
rule
(as applied in our courts today) prohibited the recovery of unpaid
interest in all cases, i.e. whether or not the
unpaid interest was in arrears.
I
do not a
gr
ee
.
Cillie JP was not called upon to consider this question.
Stroebel
v Stroebel
is therefore no authority
for counsel's contention." (emphasis added)
[29]
After a brief review of the
LTA
decision and Roman-Dutch
authorities, Tuchten AJ went on:
"I
therefore conclude that under the Roman-Dutch law in force in Holland
and Friesland, the prohibition of interest in duplum
was by 1613
limited to unpaid arrear interest and that the jurisprudential
foundation for the restriction was the policy consideration
that
debtors whose affairs are declining should not be entirely drained
dry while persons who contrive to look after their interest
have no
need of such relief.
.
.
.
A debtor who has stipulated for a lengthy delay between the date of
the advance of the capital sum to him and the date upon which
is
obliged to pay the capital with interest is in my view even less in
need of accommodation than the debtor who makes periodical
payments
of interest. There is no reported instance that I have found of to
which counsel have referred me where the recipient
of a long term
loan was excused payment of part of the interest which had accrued on
the ground that ultimately such interest exceeded
the capital sum."
[30]
In
eThekwini
Municipality,
[24]
the
SCA
recorded
the
following at
paragraphs
9
and
10:
[9]
The effect of the
in duplum
rule
is that interest due in respect of a debt ceases to run when it
reaches the amount of the unpaid capital sum:
Union
Government v Jordaan's Executor
1916
TPD 411
at 413. The rule is based
on
public policy and is meant to
p
rotect
debtors from ex
p
loitation
b
y
creditors b
y
forcin
g
them to
p
a
y
unre
gu
lated
char
g
es
,
and enforce sound fiscal discipline on creditors. It cannot be waived
in advance or during the period of the loan:
Standard
Bank of SA Ltd v Oneanate Investments (Pty)
Ltd (In Liquidation)
[1997] ZASCA 94
;
1998
(1) SA 811
(SCA). It does not relate only to money-lending
transactions but applies to all contracts where a capital amount that
is subject
to interest at a fixed rate is owing:
LTA
Construction Bpkv Administrateur, Transvaal
[1991] ZASCA 147
;
1992
(1) SA 473
(A) at 482l-483A.
[10]
The
scope
of application of the rule is succinctly set out in
Sanlam
Life
Insurance
Ltd v South African Breweries Ltd
2000
(2) SA 647
(W) ... where Blieden J said at 655D-I:
"[T]he
in duplum rule
is
confined
to arrear interest and to arrear interest alone. In my judgment the
reason for this is plain: it is to protect debtors
from having to pay
more than double the capital owed by them at the date on which the
debt is claimed .. .
Counsel's
reliance on the
LTA Construction
case
... for the submission that interest does not have to be in arrear
for the
in duplum
rule
to apply is, in my view, unfounded. The fact that the capital amount
in each of these cases had either not been ascertained
or agreed to
at the date interest started to run does not detract from the fact
that the interest claimed was in fact arrear interest.
This is wholly
different from the present case, but was to be calculated as future
interest in the relevant time period involved."
…
[31]
In
eThekweni
Municipality,
the SCA
found
that
the interest
which
formed
part
of the debt owed
by
the defendant
to
the plaintiff
was
"not conventional
interest"
but rather
"the
parties unambiguously meant it as a means of formulating a fair and
proper restitution for what had been paid and received."
As
a result, the
in duplum
rule
was found
not
to apply
and
the full amount
claimed
(which
included
interest beyond double the capital
amount)
was
payable. l
understand
the judgment
to confirm
that
the
mere fact that interest forms part of or is accessory
to the amount claimed,
is insufficient
to justify the application
of the
in
duplum
rule.
[32]
The
case of
Margo
v Gardiner
[25]
also
provides useful guidance. After the SCA delivered
a
final judgment
in
Gardiner
and
Another
v
Margo,
[26]
the
matter went
back
to
the
SCA in relation to that Court's original order of interest and the
application of the
in
duplum
rule.
[27]
[33]
Margo,
as cessionary, had sued
Gardiner
for payment
of
the unpaid proceeds from a sale of shares which Gardiner was obliged
to
sell on behalf
of
one Joubert
(the
cedent to Margo).
Gardiner
disputed his liability
but
those defences
were
rejected and the SCA granted an order
in
favour
of
Margo
"for
payment
of
the
amount
of
R1,461,432 plus interest thereon at the rate of 15.5% per annum from
1 September 1998 to date of payment.
"
The judgment was handed down on 28 March 2006, some 7½ years
after 1 September 1998 and, at the Prescribed Rate of
15.5% per
annum, the total interest was approximately 116.25% of the capital
sum. Pursuant to the SCA judgment, Gardiner made payment
of what he
contended was the total amount owing and it appears that Gardiner
calculated his total liability at twice the capital
sum - applying
the
in
duplum
rule
to limit his interest liability. Thereafter, Gardiner launched an
application for a declaratory order that the SCA judgment
had been
satisfied and Margo issued a writ for the balance and sought an order
from the High Court enforcing that writ of execution.
Conflicting
judgments were
handed
down
by
the High Court
in
the two applications and so the matter found its way back to the
SCA.
[28]
[34]
The SCA disposed of the appeal on two
bases:
34.1
First,
relying on
Oneanate
[29]
the
Court pointed
out
that
Margo
had
applied the
in
duplum
rule
incorrectly in that he had not taken into account the fact that the
rule was suspended during litigation. (This judgment was
given before
the decision in
Oneanate
was
overruled in
Paulsen.)
34.2
Second,
as is dealt with more fully in the second part of this judgment
below, the Court pointed out that the order for payment
of the full
interest amount given by the SCA was unequivocal, had not been set
aside and therefore had to be given effect to as
it stood.
[30]
[35]
The
following
obiter
statements
were recorded by the Court which are relevant to the current
dispute.
[31]
"Counsel
for Gardiner argued that the difference between this appeal and the
Oneanate
case lies in the cause of action. The cause of action
however makes no difference in the application of the
in duplum
rule : see
LTA Construction Bpk
supra,
Bellingan v
Clive Ferreira and Associates CC and another
1998 (4) SA
382
(W);
Meyer v Catwalk
Investments
354
(Pty) Ltd en andere
2004 (6) SA 107
(T).
'The
prohibition on interest
in duplum
rule is not limited to money
lending transactions but applies to all contracts arising from a
capital sum owed, which is subject
to a specific rate of interest.
(Monica Vessio
A limit on the limit on interest ?
The
in
dup/um
rule and the public policy backdrop (2006) 39 De Jure 25
at 26-7).
[12]
lt is trite that the
in
duplum
rule forms part of South African
law. It is also axiomatic that the
in
duplum
rule prevents unpaid interest
from accruing further once it reaches the unpaid capital amount.
However, it must be borne in mind
that a creditor is not prevented by
the rule from collecting more than double the unpaid capital amount
in interest, provided that
he at no time allows the unpaid arrear
interest to reach the unpaid capital amount. On the facts of this
appeal this court is not
asked to review the order of the SCA but to
give effect to it as it stands. The order of the SCA is unequivocal
and does not provide
for any interest ceiling. Therefore the amounts
claimed in the second writ are all due and owing by Gardiner to Margo
on the strength
of the SCA judgment.
The
p
u
rp
ose
or basis of the
in du
p
lum
rule is to
p
rotect
borrowers
from
ex
p
loitation
b
y
lenders
who
p
ermit
interest
to
accumulate
.
but
essentiall
y
also
to
encoura
g
e
p
laintiffs
to
issue
summons and claim
p
a
y
ment
of the debt s
p
eedil
y
...
"
(emphasis
added)
[36]
Toe Court went on to acknowledge that
when the SCA order was granted, the interest for the period 1
September 1998 to 27 March 2006
amounted to Rl,715,360.81 being an
amount clearly more than double the capital amount, and gave no
suggestion that the judgment
was
wrong.
I
note
that,
although
Shongwe
JA
states
that
the
"cause
of
action
...
makes no difference in the
application of the in duplum rule",
the
cases referred to as authority for that proposition are all cases
involving contracts where the interest rate is stipulated.
[37]
In
Woulidge,
[32]
a
taxpayer had been found to
have
made
a
donation
when
he
gratuitously failed to charge interest that would ordinarily have
been charged. To limit his tax liability in respect of that
interest
donation (a gratuitous disposition) the taxpayer argued that the
in
duplum
rule
applied to limit the amount of interest that would have been payable
to him by the donee. In dealing with whether the
in
duplum
rule
was applicable the SCA stated:
[33]
"It
is clear that the
in duplum
rule
can be applied in the real world of commerce and economic activity
only
where
it serves considerations
obli
g
ation
p
ublic
p
olic
y
in the
p
rotection
of borrowers a
1
rninst
ex
p
loitation
b
y
lenders."
(emphasis added)
[38]
In
eThekwini
Municipality
[34]
the
SCA clarified that the
Woulidge
case
should
"not
be understood
to
mean
that
the
identity
of
the
debtor
(i.e.
whether
the
debtor
requires
protection from exploitation) determines whether or not the in duplum
rule is to be applied."
[39]
In
Drake
Flemmer,
[35]
the SCA was required to address
inter
alia
the
interest recoverable on an unliquidated debt. The facts, though
complicated, may be summarised as follows for purposes of the
current
analysis. The plaintiff had been involved
in
a
motor
vehicle
accident
in
July
1997,
suffering
body
and
brain
injuries. His first attorneys (DFO) negligently settled his claim
against the RAF because they only claimed for bodily injuries,
failing to pick up and claim for the brain injury he suffered. Having
realised the negligence, a second firm (LRI) was briefed
to sue DFO
but LRI allowed the claim against DFO to prescribe in December 2002.
Ultimately, after appointing a third set of attorneys
to sue LRI, the
matter came to trial in 2015. The liability of LRI was not disputed,
the focus of the judgment was on the quantum
of the claim. The focus
of the SCA judgment was on the date to be used to value the
plaintiff's claim and how interest should be
applied to ensure
adequate compensation.
[40]
The Court determined that the correct
date to assess the quantum of the plaintiffs loss in its claim
against LRI was December 2002
as that was when LRI had allowed the
claim against DFO to prescribe. The Court recognised however that the
value of money in 2015
(and 2017 when the SCA judgment was handed
down) was significantly different from its value in December 2002. In
doing so, the
Court considered it appropriate to employ the
provisions of section 2A(5) of the Prescribed Rate of Interest Act
which gives a
Court the power to make such order
"as
appears just in respect of payment of interest on an unliquidated
debt, the rate at which interest shall accrue and the
date from which
interest shall run
.
"
[41]
Although
the SCA did not substitute the amount awarded by the High Court (in
dismissing the appeal) it adopted a significantly different
approach
to
the calculation and it recognised that, on its computation, the
interest it was awarding
exceeded
the
capital amount. The SCA found that because the interest awarded to
the plaintiff was interest determined
at
the time of judgment, it was not "arrear interest" and
therefore was not struck by the
in
duplum
rule.
[36]
In making this finding, the SCA confirmed that
mora
interest
awarded on an unliquidated debt where the Court invokes its powers in
terms of section 2A(5) is not struck by the
in
duplum
rule
because it does not amount to
"arrear
interest".
[42]
In
Watson,
[37]
the
Western Cape High Court was faced with quantifying an insurance claim
where the merits in relation to the claim had been litigated
to the
SCA, with the result that the quantum judgment was delivered some 7½
years after summons was issued
.
The
Court considered that the correct date on which to value the claim
was in 2011, when demand was made. Having done so, it found
that
interest should be calculated from the date of service of the summons
in September 2011, which it identified
as
the correct
mora
date.
By
ordering interest at a rate of 15.5% per annum for 7,5 years, the
interest awarded exceeded the capital.
The
Court did so without demur.
[43]
The above analysis indicates that not
all debts that attract or include interest are struck by the
in
duplum
rule. The question in the
current matter is whether the rule applies where
mora
interest
is
claimed on a liquidated amount and there is no agreement on the rate
to be applied.
All
of the cases and the examples in the old authorities in which the
in
duplum
rule
is
discussed
and
applied, involve contractual
claims where the interest rate is fixed
by agreement between the parties. Counsel was unable to point to one
case or example involving
the application of the
in
duplum
rule to
mora
interest on a liquidated amount and,
in my research, I have been unable to find one.
[44]
In the circumstances, I have considered
whether the rule applies, having regard to the legal obligation to
pay interest, the provisions
of the Prescribed Rate of Interest Act,
the manner in which the Courts have dealt with the rule in the cases
referred to above
and the stated purpose of the rule.
NATURE
OF THE DEBT
[45]
There are two important distinctions to
draw in analysing the various judgments and
the common law authorities.
45.1
The first is the distinction between
mora
interest
and interest determined by an agreement. In the former, the interest
recoverable is accessory to the main debt as fair
compensation for
the delay.
[38]
It is not a
separate obligation and cannot be recovered in separate proceedings.
In the latter, the obligation to pay interest
is a separate and
distinct contractual obligation and, although it ordinarily would be
claimed in the same action, could be claimed
in separate actions. The
rate of interest payable on a contractual debt is ordinarily
stipulated in the agreement (though it need
not be). The rate for
mora
interest
is
determined with reference to the Prescribed Rate of Interest Act, and
can be applicable to a contractual debt where the contract
does not
prescribe the rate.
The
second is the difference between
mora
interest
on liquidated debts and
mora
interest
on
unliquidated
debts.
In
Victoria
Falls,
the
AD
noted
that
in the
Courts
of Holland,
mora
interest
on
a
liquidated
debt became due at
litis
contestatio
when
the letter of demand was delivered.
[39]
In
West
Rand Estates
[40]
,
the
AD (per Solomon JA) held
that
this
position had changed and expressly confirmed that
"after
receipt
of the
letter
of
demand the defendant should be regarded to be in mora"
in
respect of a liquidated debt. In both
West
Rand
Estates
and
Victoria
Falls,
the
Court confirmed that
mora
interest
did not apply
to
debts for unliquidated damages. Under the common law,
interest
was
only payable on an unliquidated debt when a Court had determined the
amount owing
.
[41]
This
was the common law position until the Prescribed Rate of Interest Act
was
amended
to add
section
2A.
THE
PRESCRIBED RATE OF INTEREST ACT
[46]
Section
1(1) of the Prescribed Rate of Interest Act provides,
[42]
"If
a
debt bears interest
and the rate at which the interest is to
be calculated is not governed by any other law or by an agreement or
a trade custom or
in any other manner, such interest shall be
calculated at the rate
contemplated
in
subsection (2)(a) as at the time
when
such interest begins to run,
unless
a
court
of law
,
on
the
gr
ound
of special circumstances relatin
g
to that debt
,
orders otherwise."
(
emphasis
added)
[47]
Section
2A
of
the
Prescribed
Rate
of
futerest
Act
deals
with
interest
on
unliquidated
debts.
For
convenience,
having
regard to discussion below, I quote that section as well:
"2A(
1)
Subject
to
the provisions of this section the amount of every
unliquidated debt as determined by a
court of law, or an arbitrator or
an
arbitration tribunal or by agreement between the creditor and the
debtor, shall bear interest
as
contem
p
lated
in section l."
(emphasis
added)
[48]
As noted above, I do not have the
pleadings that served before Foulkes-Jones AJ. I proceed with the
analysis however on the basis
that the plaintiffs case was one for
damages formulated either - i) as damages flowing from
misrepresentation or a breach of warranty
of authority; or ii) as
restitutionary damages flowing from the termination of the investment
agreement, applied to the sixth defendant
following the Court's order
to
''pierce the veil"
of
the Trust. In either case, there is no agreement or law which
regulates the rate at which interest is to be calculated. In terms
of
the common law, the debt bears
mora
interest and consequently,
section 1(1) applies.
[49]
While
the provisions of the Prescribed Rate of Interest Act are to be
interpreted in light of the existing common law, the common
law will
yield where there is conflict between the statutory provision and the
common law position, the former being taken to amend
the latter.
[43]
MORA
INTEREST
[50]
There was some debate between the
parties as to whether a distinction should be drawn between
mora
interest and
arrear
interest.
Mr
Kairinos SC,
for the applicant,
argued that there is a clear difference - he argued that arrear
interest accumulates on a debt in terms of a
contractual stipulation,
while
mora
interest
is payable in the discretion of the court and therefore only becomes
an interest liability at the date of judgment.
Mr
Hitchings,
for
the
respondent,
argued
that,
because
mora
interest
starts
to
run
immediately on a liquidated debt,
the interest accrued from the
mora
date until demand and judgment is
properly categorised
as
"arrear interest".
[51]
In
LTA,
the
Appellate Division spoke of "agterstallige rente" which, as
an adjective, may be interpreted as "overdue"
or "in
arrears". In essence, this is money (interest) that is owed and
should have
been
paid earlier;
"an
amount
still
outstanding
or
uncompleted
...
a
debt unpaid."
[44]
[52]
The
nature of
mora
interest
was dealt with in
Bellairs
v
Hodnett
[45]
where,
with
reference to the
dicta
of
Centlivres CJ in
Linton,
[46]
the
AD held:
"Interest
is today the 'lifeblood of finance' and under modern conditions a
debtor who is tardy in the due payment of a monetary
obligation will
almost invariably deprive his creditor of the productive use of the
money and thereby cause him loss. It is for
this loss that the award
of
mora
interest seeks to compensate the creditor."
[53]
The Court went on to say:
"As
previously pointed out,
mora
interest
in a case like the present constitutes a form of damages for breach
of contract.
[47]
The
court acts on the assumption that, had due payment been made, the
capital sum would have been productively employed by the creditor
during the period of
mora
and the interest consequently
represents the damages flowing naturally from the breach of
contract."
[54]
In
Scoin
Trading,
[48]
after
dealing with the mechanism
to
identify the
mora
date,
the SCA held:
"If
a debtor's obligation is to pay a sum of money on a stipulated date
and he is in
mora
in that he failed to perform on or before
the time agreed upon, the damages that flow naturally from such
failure will be interest
a tempore morae
or
mora
interest.
The purpose of mora interest is to place the creditor in the position
he would have been if the debtor had performed in
terms of the
undertaking."
[55]
The
difference between
mora
interest
and "arrear interest" was dealt with directly by the SCA in
Ryton
Estates
[49]
where
the Court identified a clear distinction between contractual interest
and
mora
interest.
Having described the interest that may be agreed by the parties in
terms of an agreement (whether it was compound interest
or simple
interest), the Court went on to state:
"12.
Mora
interest,
on the other hand, is something fundamentally different. It is not
payable in terms of an agreement, but constitutes compensation
for
loss or damage resulting from a breach of contract, specifically
mora
debitoris."
[56]
Having regard to the above and the
provisions of the Prescribed Rate of Interest Act, Mr Kairinos made
the further point, with which
I agree, that the Prescribed Rate of
Interest Act does not impose a ceiling on interest liability and does
not expressly incorporate
an
in
duplum
principle. In section 103(5)
of the National Credit Act, the legislature has imposed a statutory
in duplum
principle
in relation to credit agreements falling within the provisions of the
National Credit Act. The legislature did not impose
such a constraint
in the Prescribed Rate of Interest Act (where it could easily have
done so) but instead has given discretionary
powers to the Court
hearing
each
matter,
to dete1mine how interest should be calculated if there are special
circumstances relating to the debt in issue.
SUMMATION
[57]
On a review of all the above cases, the
following principles emerge:
57.1
Where interest is calculated with
reference to a rate stipulated in an agreement, whether the agreement
is a loan agreement or another
type of agreement, the interest which
accrues on the debt cannot exceed the capital sum of the debt.
57.2
From the date of judgment in the trial
Court (even if the order to pay
capital and interest is only entered
through substitution by an appeal Court) the capital and interest
awarded is consolidated and
interest runs afresh
on
the
consolidated amount from date of judgment.
57.3
Where
the
debt
is
an
unliquidated
debt,
interest
can
be
claimed
from
date
of
mora
:
[50]
"A
court determining the amount of interest to be awarded in order to
'shield the plaintiff from the corroding effects of delay'
is not
constrained by the
in duplum
rule and may order payment of
interest in an amount exceeding the capital."
Mora
interest
is different from contractual interest and is awarded as compensation
for loss of damage resulting from default.
[51]
57.4
The obligation to pay
mora
interest is accessory to the primary
obligation and cannot be recovered separately from the primary debt.
57.5
The Prescribed Rate of lnterest Act does
not impose an
in duplum
principle
on the recovery of
mora
interest.
[58]
What then of mora interest on a
liquidated debt? ls it classified with and subject to the same
constraints as interest contractually
agreed, or is it to be
determined in a similar way to
mora
interest on unliquidated debts? For
the reasons set out below, I find it is the latter.
[59]
The
purpose of the rule was, from Roman times, to prevent lenders from
exploiting borrowers in respect
of
debt agreements.
[52]
The
in
duplum
rule
is a rule of law which cannot be waived
[53]
and a Court may not order interest in contravention of the rule.
[54]
The rule has been stated to apply to arrears interest "agterstallige
rente" on all contracts in which a capital sum owing
is subject
to a stipulated exchange rate.
[55]
[60]
Mora
interest,
being different from
contractual
interest,
[56]
is
concerned
with
compensation for loss or damage arising from default by the debtor
where no interest is agreed. The circumstances in which
a liquidated
debt giving rise to
mora
interst
may be recoverable covers a broad territory
[57]
and may cover circumstances as broad as theft
[58]
to goods sold and delivered. Further, a Court does have some
flexibility in determining defendant's liability for
mora
interest
in terms of the Prescribed Rate of Interest Act and so, like with an
unliquidated claim, the defendant's liability for
interest is not
certain until the Court has delivered its judgment.
[61]
As appears from the
Drake
Flemmer
and
Watson
examples, delays in litigation may
run longer
than
it
takes
for the interest to
equal
the
capital
at
the applicable
mora
interest
rate.
In these circumstances, it is preferable, as a matter of public
policy and in the interests of justice, for the Court to retain
a
discretion on how interest should be awarded, exercised on the facts
of each case. Where the Court has such a discretion, it
could
exercise that discretion to limit interest payable to a dilatory
plaintiff or to allow that interest where the defendant
is the reason
for the delay. Section 1(1) of the Prescribed Rate of Interest Act
provides the court with that discretion.
In my view, the "special
circumstances" which give a court the discretion set out in
section
1
(1)
of the Prescribed Rate of Interest Act would include circumstances
where a plaintiff has been dilatory or where delay ought
not to be
visited on one of the parties.
[62]
In the circumstances, I find that there
is no basis for concluding that the
in
duplum
rule should be implied into
the award of interest in the order handed down by Foulkes Jones
AJ to limit the moratory interest
awarded to the plaintiff. In my
view, the law does not preclude the plaintiff from recovering
mora
interest on its liquidated debt in
an amount that exceeded the capital amount of the original debt.
Functus
officio
[63]
I turn now to deal with the question of
whether this Court can revisit the order granted by Foulkes-Jones AJ,
in circumstances
where
both parties suggested it could.
[64]
In
Firestone
South Africa (Pty) Ltd v Genticuro A.G.
1977
(4) SA 298
(A) at 304 D-I, Trollip JA recorded the following:
"First,
some general observations about the relevant rules of interpreting a
court's judgment or order. The basic principles
applicable to
construing documents also apply to the construction of a court's
judgment or order: the court's intention is to be
ascertained
primarily from the language of the judgment or order as construed
according to the usual, well-known rules.
See
Garlick v Smartt and Another,
1928
AD 82
at p. 87;
West Rand Estates
Ltd.
v
New
Zealand Insurance Co. Ltd.,
1926 AD
173
at p. 188. Thus, as in the case of a document, the judgment or
order and the court's reasons for giving it must be read as a whole
in order to ascertain its intention. If, on such a reading, the
meaning of the judgment or order is clear and unambiguous, no
extrinsic fact or evidence is admissible to contradict, vary,
qualify, or supplement it. Indeed, it was common cause that in such
a
case not even the court that gave the judgment or order can be asked
to state what is subjective intention was in giving it (cf.
Postmasburg Motors (Edms.) Bpk.
v
Peens en Andere,
1970
(2) SA 35
(NC)
at p. 39F - H). Of
course, different considerations apply when, not the construction,
but the correction of a judgment or order
is sought by way of an
appeal against it or otherwise - see
infra.
But if any uncertainty in meaning
does emerge, the extrinsic circumstances surrounding or leading up to
the court's granting the
judgment or order may be investigated and
regarded in order to clarify it; for example, if the meaning of a
judgment or order granted
on an appeal is uncertain, the judgment or
order of the court
a quo
and
its reasons therefor, can be used to elucidate it. If, despite that,
the uncertainty still persists, other relevant extrinsic
facts or
evidence are admissible to resolve it. See
Garlick's
case,
supra,
1928 AD at p. 87, read with
Delmas
Milling Co. Ltd.
v
Du
Plessis,
1955
(3)
SA 447
(
AD
}
at
pp. 454F - 455A;
Thomson v Belco
(Pvt.) Ltd. and Another,
1960
(
3
)
SA 809 (D
)
.
[65]
These
principles have been confirmed and relied upon without any material
qualification in both the Supreme Court of Appeal and
the
Constitutional Court
.
[59]
The point was reinforced in
Ntshwaqela
[60]
Similarly,
the order with which a judgment concludes has a special function: it
is the executive part of the judgment which defines
what the Court
requires to be done or not done, so that the defendant or respondent,
or in some cases the world, may know it.
It
may be said that the order must undoubtedly be read as part of the
entire judgment and not as a separate document, but the Court's
directions must be found in the order and not elsewhere. If the
meaning of an order is clear and unambiguous, it is decisive, and
cannot be restricted or extended by anything else stated in the
judgment.
[66]
Mr Hitchings, for the respondent, argued
that if the
in duplum
rule
applies, it applies as
a
rule of law and must be implied automatically to reduce the amount
which would otherwise be recoverable in terms of paragraph
80.1.2 of
the order. He argued that it was not necessary for the defendant to
plead the application of the
in
duplum
rule in order to avoid an
order such as that given in paragraph 80.1.2 and that it was for the
plaintiff to have argued the inapplicability
of the
in
duplum
rule before Foulkes-Jones AJ.
I have set out above the reasons why I consider that the
in
duplum
rule does not apply to limit
mora
interest
claimable on a liquidated debt but, even if I am wrong in that
regard, I cannot agree with these submissions.
[67]
First, the principles set out in
Firestone
would
be severely undermined and significant uncertainty would arise if
clear and unambiguous orders of the High Court were to be
subject to
implied terms which varied their meaning. Rule 42 provides a
concerned party with the option of approaching the original
court for
a variation of the order and the appeal procedures are available to a
party who wishes to co1Tect an order. In the absence
of a variation
to the order or an appeal judgment overturning the order, the order
must stand and be enforced according to its
terms.
[68]
Second,
as Harms JA
colourfully
explained
in
F&I
Advisors,
[61]
a
defendant
that
wishes
to rely on the
in
duplum
rule
must raise the defence. While the Coutt can take a point of
illegality
mero
moto
if
the defendant does not
plead
it,
it can and will only do so
if
the illegality is obvious and all the necessary and relevant facts
are before it. In any event, the question of whether the court
should
or should not have taken account of the
in
duplum
rule
is a matter that might have been relevant if the judgment of Foulkes
Jones AJ had been taken on appeal. However, it has
no relevance in
the current circumstances.
[69]
In
Margo
(2),
Shongwe
JA was faced with a similar argument
and gave it short-shrift. Accepting that
the amount of the interest awarded in
Margo
(1)
exceeded the capital, the
learned Judge held:
On
the facts of this appeal this court is not asked to review the order
of the SCA, but to give effect to it as it stands. The order
of the
SCA is unequivocal and does not provide for any interest ceiling.
Therefore the amounts claimed in the second writ are all
due and
owing by Gardner to Margo on the strength of the SCA judgment.
[70]
In the current matter, I am asked to
assess the liability of the respondent to the defendant following the
judgment of Foulkes-Jones
AJ. To me, the order made by the Learned
Judge establishing the respondent's liability to the plaintiff for
interest on the capital
sum is unequivocal and it does not provide
for an interest ceiling. As such, the judgment should be enforced on
its terms, which
includes payment by the defendant of the additional
interest amount of R785,008.56, in addition to any outstanding
interest owed
on the judgment debt.
Order
[71]
In the circumstances, I make the
following order:
a)
The
respondent
is
liable
to
pay
to
the
applicant
the
amount
of
R785,008.56, being the
balance
due
in respect of
moratory interest
awarded
in the judgment and order under Case No. 15636/2008 in the Gauteng
Division of the High Court, Johannesburg,
by
Her
Ladyship Ms Acting Justice Foulkes-Jones ("the judgment").
b)
Interest on the aforesaid amount of
R785,008.56
a tempore mora
to
date of final payment, both days inclusive.
c)
The respondent is to pay the applicant's
costs of this application.
DA
Turner AJ
Date
of hearing: 10 March 2021
Date
of judgment: 10 August 2021
Appearances:
On
behalf of the applicant: Adv G Kairinos SC
Instructed
by E Da Cruz Attorney
On
behalf of the defendant : Adv B Hitchings
Instructed
by Martins Weir-Smith
[1]
Judgment
para
78
[2]
Judgment para 31.7
[3]
Judgment para 73
[4]
Judgment paragraph 80.1.2, quoted above
[5]
Transvaal Canoe Union v Butgereit and Another
1990 (3) SA 398
(T) at
403E- 404E
[6]
Transvaal Canoe Union supra at 404E.
[7]
Standard Bank of South Africa Limited v 011ea11ate /11vestme11ts (PM
Ltd (i11 liquidatio11)
[1997] ZASCA 94
;
1998 (1) SA 811
(SCA) at 827H
[8]
Paulsen and Ano v Slip Knot Investments 777 (Pty) Ltd
2015 (3) SA
479
(CC).
[9]
Jafla J and Nkabinde J concurring.
[10]
Paulsen at para 42 - 44
[11]
Bellingan v Clive Ferreira & Associates CC and others
1998 (4)
SA 382
(W) at 399 B-E.
[12]
Mokeng CJ, Khampepe J, Leeuw AJ and Van der Westhuizen J concurring
[13]
At 107 ff
[14]
With whom Mpati P, Shongwe JA and Mathopo AJA concurred.
[15]
Paulsen and Ano v Slip Knot Investments 777 (Pty) Ltd2014 (4) SA 253
(SCA) at para 17.
[16]
LTA Construction Bpk v Adminstrateur, Transvaal 1992 (1) SA 473 (A)
[17]
The judgment a quo is reported at Administrasie van Transvaal v
Oosthuizen en ander 1990 (3) SA 387 (W).
[18]
from 481H
[19]
P 482H - 483A.
[20]
Administrasie van Transvaal v Oosthuizen en ander
1990 (3) SA 387
(W) at 3971
[21]
Supra.
[22]
LTA Construction Bpk, supra.
[23]
Stroebel vStroebel
1973 (2) SA 137
(T) at 138-139.
[24]
eThekwini Municipality v Vendam Medi Centre (Pty) Ltd [2006)
3 All
SA 325
(SCA) at para 9.
[25]
Margo and A,w v Gardiner and A,w 2010 (6) SA 385 (SCA)
[26]
Gardiner and A110 v Margo 2006 (6) SA 33 (SCA).
[27]
Margo (supra).
[28]
I have attempted to get access to those two judgments, without
success.
[29]
Standard Bank v Oneanate (supra).
[30]
Margo at para 12.
[31]
Margo from para 11 - 12.
[32]
Commissioner. South African Revenue Service ,. Woulidge 2002 (I) SA
68 (SCA) at para 12.
[33]
Woulidge at para 12.
[34]
At paras 20 and 23.
[35]
Drake Flemmer and Orsmond Inc and Ano v Gaiaar NO
2018 (3) SA 353
(SCA)
[36]
Druke Flemmer at paras 84 - 86.
[37]
Watson and Ano v Renasa Insurance Co Ltd
2019 (3) SA 593
(WCC) at
para 71ff.
[38]
West Rand Estates Ltd · New Zealand Insurance Co Ltd
1926 AD
173
at 185
[39]
Victoria Falls Power Co. v Consolidated Langlaagte Mines
1915 AD 1
citing Voet, 22.1.11; Wassenaar, Jud. Pract. (1.21.10); Merola,
Manier van Proced. (4.42.5.2)
[40]
West Rand Estates Ltd v New Zealand Insurance Co Ltd
1926 AD 173
at
183
[41]
Victoria Falls (supra)
[42]
Section 1 (1) remains unamended. Other subsections of section 1 were
amended by Act 24 of 2015.
[43]
Kking and Others NNO v De Jager and Others 202 I (4) SA 1 (CC) at
[141]
[44]
Oxford English Reference Dictionary, 2nd Ed 1996.
[45]
Bellairs v Hodnert and Ano
1978 (1) SA 1109
(A) from 1145- 1148.
[46]
Linton v Corser
1952 (3) SA 685
(AD) at 695.
[47]
Bellairs at 1146H- 1147A.
[48]
Scoin Trading (P(v) Ltd v Bernstein
2011 (2) SA 118
(SCA) at paras
11 - 14.
[49]
Land and Ag1icultural Development Bank of SA v Ryton Estates (Pty)
Ltd and others
2013 (6) SA 319
(SCA) at paras 11-14.
[50]
Prescribed Rate of Interest Act section 2A.
[51]
Ryton Estates para 12.
[52]
Paulson para 44, 107 and 122; Oneanate at 828 D-E; LTA Construction
at 477C.
[53]
Paulson para 122, Oneanatep 828D-E.
[54]
F&l Advisors Edms Bpk en Ander v Eerste Nasionale Bank van
Suid-Afrika Bpk
[1998] ZASCA 65
;
1999 (1) SA 515
(SCA) at 525E.
[55]
LTA Construction p 4821- 483A.
[56]
Ryton Estates para 12.
[57]
Fatti's Engineering Co Ltd v Vendick Spare., Ltd 1962 (1) SA 736
(T).
[58]
Nedcor Bank V Behardien 2000 (1) SA 307 (C).
[59]
Zondi v MEC Traditional and local Government Affairs and others
2006
(3) SA 1
(CC) paras 28 - 29; Ela11 Boulevard (Pty) Ltd v Fnyn
lnvestments (Pty) Ltd and others
2019 (3) SA 441
(SCA) para 16.
[60]
Administrator, Cape and Another v Ntshwaqela and Others
1990 (1) SA
705
(A) at 716 B-D
[61]
Supra at 525 E-G.