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[2014] ZAGPPHC 375
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A.N.H (V.M) v J.F.M (33753/2012) [2014] ZAGPPHC 375 (13 June 2014)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE: 13/6/2014
CASE
NUMBER: 33753/2012
A.
N. H. (V. M.)
APPLICANT
And
J.
F. M.
RESPONDENT
JUDGMENT
LEPHOKO
AJ
[1]
The applicant instituted these proceedings in order to recover an
amount of R343 919-00 together with interest owing to her
in terms of
a divorce settlement. The parties were married to each other
out of community of property subject to the accrual
system.
[2]
The parties had earlier reached an agreement that the respondent
would pay the applicant an amount of R400 000-00 in respect
of
the applicant’s share in the accrual less the amount the
applicant owed to the respondent in respect of maintenance. A
dispute
subsequently arose as to whether an agreement had been reached on the
terms of payment. This dispute led the applicant
to institute the
present proceedings.
[3]
The application was issued on 31 May 2013 and it was served on the
respondent on 7 June 2013. The application was not preceded
by a
demand for payment. On 25 June 2013 the respondent paid an amount of
R329 903-00 to the applicant and it became common cause
that that was
the correct amount due to the applicant.
[4]
The court is called upon to decide whether the respondent is liable
for payment of interest on the amount of R329 903-00 and
the costs of
the application.
[5]
There is no obligation to pay interest until the debt becomes due and
payable. Interest would begin to run from the date of
mora
or
default. In the case of
mora ex re
the claim for interest
would arise from an express or tacit stipulation for interest and
there is no need for a demand to place
the debtor in
mora.
In
the case of
mora ex persona
the claim for interest would arise
from the date of a valid demand and the debtor does not fall in
mora
if he does not perform immediately or within a reasonable time:
Scoin Trading (Pty) Ltd v Bernstein NO
2011 (2) SA 118
(SCA) at 120G
– 121A.
[6]
A demand is not a prerequisite to the institution of legal
proceedings unless it is required by statute or by agreement between
the parties: Hooper v De Villiers 1
934 TPD 200
at 2002. The primary
purpose of a demand is to inform the defendant of what is claimed
against him and what will happen if the
claim is not satisfied within
a specified time. Generally, the defendant should be allowed a
reasonable time to respond to the
demand. What is reasonable will
depend on the circumstances of a particular case.
[7]
In Havenga v Lotter
1912 TPD 395
the appeal court reversed an award
for interest and costs where the plaintiff had sent a demand and the
summons had followed immediately
after the demand such that it was
impossible for the defendant to have made a tender in reply to the
demand before the issue of
summons. The court awarded the defendant
costs incurred through the issue of summons as he had tendered
adequate damages within
a reasonable time from receipt of the demand,
but after summons had been issued. The court also expressed the
view that the
purpose of a demand is to put the debtor
in mora
and
there should always be a reasonable time allowed for the debtor to
comply with the demand.
[8]
In the present case the date of service of the application must be
taken as the date of demand or the date on which the respondent
was
placed
in mora
as there was no prior demand. Interest starts
to run from the date of service: Standard Bank of SA Ltd v Lotze
1950
(2) SA 698
(C).
[9]
The liability of the respondent was determined on the 14 March 2013
when the applicant accepted his offer to pay the amount
of
R400 000-00 less the outstanding maintenance although the date
of payment had not been determined. The court accepts that
it was not
unreasonable for the applicant to expect that the money would be paid
in a lump sum as the respondent had not proposed
settlement in
instalments when he made the offer. It appears that this was also the
respondent’s intention when he made the
offer as the letter of
15 May 2013 addressed to the applicant’s attorneys it is
stated: “
Ongelukkig is die bedrag nie meer beskikbaar nie en
stel ons voor dat ons die bedrag in paaiemente van R7500-00 betaal
aan u klient"
[10]
Failure to issue a demand in circumstances where a demand is not
required by law or an agreement between the parties may be
relevant
to interest and costs: See Havenga v Lotter (
supra
), Hooper v
De Villiers (
supra
). It was argued on behalf of the respondent
that as there was no prior demand, the applicant was entitled to
interest from ten
days after service of the application taking into
account what would have been a reasonable time to respond to the
demand. In the
alternative, it was submitted that the applicant was
at most entitled to interest as from the date of service of the
application.
[11]
The respondent has known about his liability to the applicant from
the 14 March 2013 and was in agreement on exactly how that
liability
was calculated. In my view a demand would not have taken this matter
any further except to place the respondent
in mora
. Despite
knowing the extent of his liability the respondent failed to make
payment within a reasonable time which forced the applicant
to
institute legal proceedings on 31 May 2013.
[12]
I hold the view that the applicant was within her rights in issuing
the application and acted reasonably and the time that
lapsed between
the issue of the application and the date of payment was sufficient
to attract interest from the date of service
as the respondent had
been aware of his exact liability for a reasonable period since 14
March 2014. There were no special circumstances
that would have
justified the delay in settling the debt on receipt of the
application. In the circumstances I am of the view that
the applicant
is entitled to interest from the date of service of the application
to the date of payment.
[13]
The parties had not agreed on the rate of interest in the event of
default. In a case where there is no agreement on
interest the
prescribed rate of interest in terms of the
Prescribed Rate of
Interest Act 55 of 1975
would apply, unless a court orders otherwise
on the ground of special circumstances relating to that debt. That
rate is currently
15.5%
per annum.
[14]
It was further argued on behalf of the respondent that the applicant
was not entitled to the costs of the application as the
application
was frivolous and she persisted with the application even after
settlement of her claim. This argument loses sight
of the fact that
up to and including the date of the hearing the respondent persisted
in his refusal to pay interest due on the
applicant’s claim as
well as the costs of the application. Costs are an important
and integral part of litigation.
A successful litigant is entitled to
recover his costs where appropriate. I am of the view that the
application was necessitated
by the respondent and he should bear the
costs.
In
the circumstances the following order is made:
1. The
respondent is ordered to pay to the applicant interest on the amount
of R329 903-00 at the rate of 15.5%
per annum
from date
of service of the application to date of payment.
2. The
respondent is ordered to pay the costs of the application.
____________________________________
A
L C M LEPHOKO
(ACTING
JUDGE OF THE HIGH COURT)
Heard
on: 06 May 2014.
Judgment
delivered on: 13 June 2014
For
the Applicant: No appearance.
For
the Respondent: Adv.: D Keet
Instructed
by: Pratt Luyt & De Lange