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2012
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[2012] ZAGPPHC 188
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Nel v Minister of Safety and Security (A1009/2010) [2012] ZAGPPHC 188 (22 August 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NUMBER: A1009/2010
DATE:22/08/2012
In
the matter between:
ANGUS
JOHN
NEL
…..................................................................................................
APPELLANT
And
THE
MINISTER OF SAFETY AND
SECURITY
......................................................................................................................
RESPONDENT
JUDGEMENT
KUBUSHI,
J
[1]
This is an appeal, with leave of the trial court, against the
judgment of Du Plessis, J delivered on the 9 July 2010, wherein
he
dismissed the appellant's application in terms of rule 42 of the
Uniform Rules of Court. The appellant is also appealing, in
the
alternative, against the order, in Du Plessis, J's judgment of the 28
September 2009, to the effect that the interest on the
damages
awarded is payable from date of judgment as opposed to a tempore
mora.
[2]
The appellant, the plaintiff in the trial court, sued the respondent,
the defendant in the trial court, for unlawful arrest,
detention and
assault. The trial court granted judgment in favour of the appellant.
[3]
Initially the appellant had claimed damages together with interest at
the maximum prescribed rate (15,5%) thereon from the date
of judgment
to the date of payment. On the 19 January 2009, the appellant applied
for the amendment of his particulars of claim.
This amendment
included a prayer to replace the initial prayer for interest so that
the interest claimed is awarded at the maximum
prescribed rate a
tempore mora to date of payment. The amendment was duly effected on
the 3 February 2009. At the conclusion of
the trial it was also
argued on behalf of the appellant that interest on damages be granted
a tempore mora to date of payment.
When granting judgment, the trial
court, however, overlooked the amendment and the appellant's argument
and granted interest on
the amount awarded at the rate of 15,5% per
year, from the date of judgment to date of payment.
[4]
After the order was given, the parties' counsel approached the trial
judge in chambers and made him aware of the provisions
of section 2A
of the Prescribed Rate of Interest Act, 55 of 1975 (the Act). Section
2A (1), read with section 1 (1) of the Act,
provides that the amount
of every unliquidated debt as determined by any court of law shall
bear interest at the prescribed rate
as at the time when such
interest began to run, unless a court of law orders otherwise. The
trial judge could, however, at that
stage, not amend his order.
[5]
The appellant brought an application in terms of rule 42 whereby he
sought to rectify the 'error' in the order. Du Plessis,
J dismissed
the application on the ground that he was functus officio.
[6]
During the hearing of the appeal, both counsel conceded, rightly so
in our view, that the judgment of Du Plessis, J of 9 July
2010 was
correct. At that stage he was indeed functus officio and could not
amend his previous judgment.
[7]
The issue before us now is whether this court can interfere with the
order regarding the date from which the interest is payable
in the
judgment of Du Plessis, J granted on the 28 September 2009.
[8]
At the hearing of the appeal the respondent's counsel was requested
to first address us on the issue in question. His contention
was that
the appeal should not succeed because when granting the order the
trial court had exercised its discretion in terms of
section 2A (2)
(5) of the Act. In terms of this section, a court may make such order
as appears just in respect of the payment
of interest on an
unliquidated debt. He was however, constrained to explain to us when
such discretion was exercised by the trial
judge.
[9]
The appellant's counsel on the other hand contended that there was
nothing on record that indicates that the trial court exercised
its
discretion. This is correct.
[10]
It is trite that a court of appeal is not entitled to set aside a
decision of a trial court granted in the exercise of its
discretion
merely because a court of appeal would, itself, on the facts of the
matter before the trial court, have come to a different
conclusion. A
court of appeal may interfere only when it appears that the trial
court has not exercised its discretion judicially,
or that it had
been influenced by wrong principles, it committed a misdirection on
the facts, or that it had reached a decision,
which in the result
could not reasonably have been made by a court properly directing
itself to all the relevant facts and principles.
See MANONG AND
ASSOCIATES (PTY) LTD v CITY OF CAPE TOWN
2011 (2) SA 90
(SCA) at 115G
- 116A.
[11]
In this instance, my view is that the trial court did not exercise
its discretion at all. It has been held that, in exercising
its
discretion under section 2A (5) of the Act, a court must give effect
to its own view of what is just in all the circumstances.
(See ADEL
BUILDERS (PTY) LTD v THOMPSON
2000 (4) SA 1027
(SCA) at 1032B - I).
This the trial court did not do. On the reading of Du Plessis, J's
judgment of the 28 September 2009 it is
apparent that he did not
exercise this discretion. There is nowhere in the judgment where he
addresses the issue of interest. This
court must therefore interfere.
[12]
To my mind, the trial court ought to have granted an order for
interest as prayed for by the appellant, that is, an order for
interest a tempore mora to date of payment. This is the order this
court must grant. The default position of the Act is that the
amount
of every unliquidated debt as determined by any court of law shall
bear interest at the prescribed rate a tempore mora,
unless a court
of law orders otherwise. Where a court deviates from this position,
an order that it may make, must appear just
in the circumstances of
that case. If Du Plessis, J wanted to deviate from this position he
should have given reasons in his judgment
why it was just and
equitable to do so. This he did not do. Moreover, the appellant went
to the extent of amending his particulars
of claim, and his counsel
also argued on his behalf for a prayer for payment of interest a
tempore mora to date of payment. It
seems to me more a matter of
oversight on the part of my brother Du Plessis, J than anything else.
[13]
The trial court should also have stated the date on which the
interest ought to have started running. My view is that interest
in
this instance started running from the 30 June 2006, which is the
date set in the letter of demand by the appellant to the respondent
for performance.
[14]
The issue of costs was not canvassed during the hearing of this
appeal and I am therefore of the view that the costs thereof
must
follow the outcome of the appeal.
[15]
In the premise, I would make the following order:
15.1
The appeal is upheld.
15.2
Paragraph 2 of the order in the judgment of the trial court is set
aside and substituted by the following order:
"
The defendant is ordered to pay interest on the amount of R111 234,74
at the rate of 15,5% per year, from the 30 June 2006
to the date of
payment."
15.3
The respondent to pay the costs of the appeal.
E.M.
KUBUSHI, J
I
concur.
M.F.
LEGODI, J
I
concur.
H.J.
FABRICIUS, J
On
behalf of the appellant: Adv Z.J. Schoeman
Instructed
by: John Nel & Associates c/o Friedland Hart Solomon &
Nicolson
Suites
301 Block 4 Monument Office Park 79 Steenbok Ave Monument Park
PRETORIA
On
behalf of the respondent: Adv. D. Mtsweni
Instructed
by: The State Attorney Ground Floor SALU Building Cnr Francis Baard &
Thabo Sehume Streets PRETORIA