IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA )
OF INTEREST
Case no: 1827/2024
In the matter between :
BLUE CRANE ROUTE MUNICIPALITY Applicant
and
THE MUNICIPAL WORKERS RETIREMENT FUND First Respondent
THE SHERIFF OF THE HIGH COURT Second Respondent
__________________________________________________________________ _
JUDGMENT
___________________________________________________________________
Govindjee J
‘Interest, and interest on interest … can neither be stipulated for no r recovered
beyond twice the amount, and if paid, may be recovered.’1
‘The amount of unpaid interest ma y not exceed the principal.’2
1 Gillespie J in Commercial Bank of Zimbabwe Ltd v MM Builders & Suppliers (Pvt) Ltd and Others
and Three Similar Cases 1997 (2) SA 285 (ZH) ( Commercial Bank of Zimbabwe ), interpreting the
original Justinian maxim that is the origin of the in duplum rule.
Background
[1] As of December 2023, approximately 12600 employers were reported to have
contravened the Pension Funds Act, 19563 (the PFA) by neglecting to remit pension
contributions to retirement funds .4 The applicant (the Municipality) failed to deduct
the correct pension fund contributions from its employees between 2007 and 2013
and breached s 13A of the PFA. This court granted a defau lt judgment in favour of
the first respondent (the Fund)5 on 26 November 2019 , in the following terms (the
judgment) :6
‘1. That the [Municipality] is to make payment to the [Fund] in the amount
of R3 805 608,68.
2. That the [Municipality ] is to make paym ent of interest to the [Fund ] on
all amounts from the first day following the expiration of the period in
2 Van der Keessel Praelectiones (English translation of Van der K eessel by Lorenz Select Theses on
the Law of Holland and Zeeland 2 ed (Juta and Co Ltd 1901) at 192 para DLXIX, as quoted in
Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd [2015] ZACC 5 ( Paulsen ) fn 65.
3 Act 24 of 1956 (the PFA). Section 13A pr ovides: (1) ‘Notwithstanding any provision in the rules of a
registered fund to the contrary, the employer of any member of such a fund shall pay the following to
the fund in full, namely –
(a) any contribution which, in terms of the rules of the fund, is to b e deducted from the member’s
remuneration; and
(b) any contribution for which the employer is liable in terms of those rules…
(3)(a) Any contribution to a fund in terms of its rules, whether it be a contribution contemplated in
subsection (1), a contribution f or the payment of which a member of the fund is responsible
personally, or a contribution to be paid on a member’s behalf –
(i) shall be transmitted directly into the fund’s account … not later than seven days after
the end of the month for which such a con tribution is payable or;
(ii) shall be forwarded directly to the fund in such manner as to have the fund receive the
contribution not later than seven days after the end of that month…
(7) Interest at a rate as prescribed – shall be payable from the first day following the expiration of the
period in respect of which such amounts were payable on –
(a) the amount of any contribution not transmitted into a fund’s bank account before the expiration of
the period prescribed therefor by subsection (3)( a)(i);
(b) the amount of any contribution not received –
(i) by a fund before the expiration of the period prescribed therefor by subsection
(3)(a)(ii)…’
4 M Maqhina ‘Employers are dodging pension fund contribution payments’ The Mercury (10 March
2025) p 6.
5 The Fund is a pension fund organisation registered in terms of s 4 of the PFA.
6 An application for rescission was dismissed with costs on 8 October 2020. An appeal against that
judgment was dismissed by a full court on 24 January 2023 . The SCA dismissed an application for
special leave as well as an application for reconsideration in terms of s 17(2)( f) of the Superior Courts
Act, 2013 (Act 10 of 2013 ), with costs , during 2023 .
respect of which amounts were payable in terms of Section 13A(3)( a)(i)
and (ii) of the Pension Funds Act 24 of 1956 until date of payment at
the rate which has been prescribed in terms of Section 13A(7) of the
Pension Funds Act 24 of 1956.
3. That the [Municipality] is to pay the costs of this application.’
[2] On 15 January 2024, the Fund’s attorneys issued a Warrant of Execution
reflecting the capital amount indicated in the judgment, as well as interest in the sum
of R30 052 166,09. The Municipality made payment of the full capital amount, as
reflected in the judgment , and tendered payment of interest in the amount of
R8 450 751,19 .7 Four mont hs later, t he Municipality obtained an order , granted on
an urgent basis, staying execution pending the finalisation of the present
proceedings. The Municipality now seeks an order setting aside the writ and
declaring , in essence, that the interest payable includes post -judgment interest but is
limited by the in duplum rule (the rule) . The matter was heard by a full court,
following a directive from the Acting Judge President of the Division. The main issue
to be determined is whether the rule is applicable given the circumstances.
The scope of the rule
[3] The rule is a long -standing and well -established part of South African law.8
Various decisions confirm that the rule forms part of South African common law and
has done so for some two centuries.9 The Constitutional Court framed the rule as
follows:10
‘The rule is that arrear interest stops accruing when the sum of the unpaid
interest equals the extent of the outstanding capital.’
7 This amount was calculated by an actuary based on ‘late payment interest’, which was limited to the
capital amount by applying the in duplum rule, coupled with post -judgment interest as of 9 April 2024.
8 Paulsen above n 2 para 42 , 43.
9 Niekerk v Niekerk (1828 –1849) 1 Menz 452 (Niekerk ) at 454; LTA Construction Bpk v
Administrateur, Transvaal 1992 (1) SA 473 (A) ( LTA Construction ) at 482F, as cited in Paulsen paras
42.
10 Paulsen above n 2 para 107. The rule applies to accumulated interest on the amount in arrears and
excludes amounts alre ady paid by way of interest. It relates only to interest that has accr ued but is
unpaid : Paulsen v Slip Knot Investments [2014] ZASCA 16 ( Slip Knot Investments ) para 17.
[4] In the words of Moseneke DCJ, the rule ‘is a common -law norm that regulates
the accrual of interest on a debt that is due and payable ’.11 The overarching purpose
of the rule is ‘to protect deb tors from being crushed by the never ending
accumulation of interest on an outstanding debt.’12 It is accepted as constituting an
aspect of daily economic life under the common law, helping those debtors who find
themselves in financial plight.13 The public policy basis of the rule is dual, permitting
a creditor to recover double the capital whilst seeking to alleviate the plight of
debtors.14
‘(T)he jurisprudential foundation for the restriction [of interest in terms of the
rule] was the policy consid eration that debtors whose affairs are declining
should not be entirely drained dry … Debtors may be drained entirely dry by
the accumulation of interest during the pendency of litigation, just as well as
prior to the initiation of litigation. The consider ation that the in duplum rule is
aimed at aiding debtors is not diminished by the initiation of legal proceedings.
This overarching purpose of the in duplum rule augurs for its application both
before and during litigation. ’
[5] The judgment in Commercial Ban k of Zimbabwe includes a useful survey
explaining how the rule made its way into South African jurisprudence via Roman
law and Roman -Dutch law .15 Two old cases cited in that judgment aptly convey the
broad scope of the rule . Firstly, i n Niekerk v Niekerk ,16 (Niekerk ) the plaintiffs
instituted action against one of the executors of their paternal grandmother’s estate,
for their share of inheritance. The court granted judgment in favour of the plaintiffs.
Some six weeks later, the defendant consented to execution being issued for the
capital, with interest equal to the amount of the capital, but objected to the further
11 Paulsen above n 2 para 107.
12 Leech v Absa Bank Ltd [1997] 3 All SA 308 (W) ( Leech ) at 313 –314 as quoted in Paulsen above n
2 para 44.
13 LTA Construction above n 9 at 482E –F, as translated by Madlanga J in Paulsen above n 2 fn 72.
14 Paulsen above n 2 para 44, quoting Bellingan v Clive Ferreira & Associates CC and Others 1998
(4) SA 382 (W) at 401C , para 80 and para 107 .
15 Commercial Bank of Zimbabwe above n 1 293–295; Paulsen above n 2 para 42 . The decision in
Commercial Bank of Zimbabwe was cited with approval in Standard Bank of South Africa Ltd v
Oneanate Investments (Pty) Ltd (In Liquidation) 1998 (1) SA 811 (SCA) (Oneanate ) at 829E .
16 Niekerk above n 9 at 454.
claim for interest. Two months later, counsel for the defendant moved for an
amendment to the judgment, to restrict the interest payab le so that it did not exceed
the capital sum. It was argued , on behalf of the plaintiffs, that while the r estriction
may apply where a major creditor allowed the interest to run in arrear to a greater
amount than the capital, it did not apply where the sum claimed was the principal
sum due to the plaintiffs as their inheritance. In rejecting that argument, t he court
considered the Dutch law to be clear: interest could not be claimed, even from a
guardian, to a greater amount than that of the capital on whic h the judgment arose .17
As a result, the judgment was amended , as prayed, to prevent execution in
contravention of the rule.
[6] Secondly, i n Union Government v Jordaan’s Executor ,18 (Jordaan’s Executor )
a farm belonging to Jordaan was surveyed in accordance with the provisions of Law
9 of 1891. The government of the time was entitled to pay the survey fees in terms of
the ‘Volksraad Besluiten’ (council decisions) of 1893 , and did so in 1894 . The money
paid carried interest at the rate of six percent per annum according to the applicable
law. In 1915 , Jordaan’s executor was prohibited from passing transfer of the farm
until the capital and interest, now more than the capital, was repaid. The executor
paid the Union Government under protest but later successfully claimed back the
interest amount that had been paid over and above the capital amount . On appeal,
the full court addressed an argument that interest continued accruing beyond the
capital amount but could not be claimed. In dismissing the appeal, t he court
confirmed that the Roman law position, now part of South African law, was
unanimous and clear: ‘no interest runs after the [interest] amount is equivalent to the
amoun t of the capita l’. In addition, there was nothing in the Volksraad Besluit to
suggest that the common law rule had been overtaken .
17 Ibid. Also see Oosthuizen and Others v South African Railways and Harbours 1928 WLD 52 at 65 ,
dealin g with a suit for payment of moneys due as compensation for expropriated property . Interest on
the amount of compensation was held to cease accruing once the double had been reached :
Commercial Bank of Zimbabwe above n 1 at 297B –D.
18 Union Government v Jordaan’s Executor 1916 TPD 411. Wallis JA pointed out in Slip Knot
Investments above n 10 para 17, fn 2, that this decision was rendered by a court of which all three
members (De Villiers JP, Wessels and Curlewis JJ concurring) went on to bec ome Chief Justice. The
rule as expressed in this decision was held to stil l represent the law 75 years later: LTA Construction
above n 9 at 482B –H.
[7] The SCA has confirmed that the rule, as it was applied in Holland, was
accepted into South Africa.19 Significantly, the rule was, seemingly from the very first
reported instance of the application of the rule in Southern Africa, in Niekerk , applied
to debts other than debts arising out of loans, and outside the contractual setting.20
In my view, the explication of the rule in Commercial Bank of Zimbabwe , and
specifically its applicability outside of the contractual setting, is supported by the
clear framing of the scope of the rule in Paulsen and another v Slip Knot Investments
777 (Pty) Limited (Slip Knot Investments ). Wallis JA, on behalf of the majority of the
SCA, held that:21
‘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.’
[8] This put s paid to the Fund’s argument that the rule only applies to contractual
interest . That notion appears to have as its origin the concluding paragraph in LTA
Construction , which has been followed in various cases pertaining to contractual
debts .22 In LTA Construction , Joubert JA was, on my reading, merely rejecting the
argument that the rule only applied to loans. Having done so, the learned Judge
added:
‘In beginsel geld dit vir alle kont rakte uit hoofd e waarvan ‘n kapitaalsom
verskuldig is wat onderhewig aan ‘n bepaalde rentekoers is, soos supra
aangetoon is.’
19 LTA Construction above n 9 at 482 –483. Also see Paulsen above n 2 para 42: our common law is
based on the same Roman -law rule carried through to Roman -Dutch law.
20 Commercial Bank of Zimbabwe above n 1 at 295G –296B. Also see LTA Construction above n 9 at
16, quoting Scott’s translation of Justinian: ‘We decree that this rule shall be observed in all bonae
fidei contracts, and in all other cases in which interest can be collected.’ Also see MEC: Police, Roads
and Transport Free State Provincial Governme nt v Bovicon Consulting Engineers CC and Another
[2023] ZASCA 99 (‘Bovicon ’) para 1 : there is no reason to distinguish between interest ex contractu
and interest ex mora .
21 Slip Knot Investments above n 10 para 17. This aspect of the SCA’s judgment was not overturned
by the Constitutional Court in Paulsen .
22 See, for example, Margo and Another v Gardner and Another; Gardner and Another v Margo and
Another 2010 (6) SA 385 (SCA) (Margo ) para 11. Cf Coetzee & Others v Member of the Executive
Council for the Department of Health, Western Cape Provincial Government and Others (2024) 45 ILJ
104 (LC) para 25 , following Da Cruz v Bernardo 2022 (2) SA 185 (GJ).
(‘In principle, this applies to all contracts under which a capital sum is due and
is subject to a specific interest rate, as indi cated supra ’) (own translation).
[9] That remark , on its own, and read in context, cannot mean that the rule is
applicable only to contractual debts, also given the authorities cited above. Neither
the cause of action nor the identity of the debtor makes a difference in the
application of the rule.23 The rule now forms part of positive law and public policy is
not the criterion in deciding whether the rule applies.24 There is also no suggestion
on the part of the Fund that the common law requires development.25
[10] On the view I take of the matter, the rate at which interest on a debt is
calculated, be it in terms of the PFA or the Prescribed Rate of Interest Act , 1975,26 is
immaterial for purposes of determining whether the rule remains applicabl e.
Following Slip Knot Investments , the rule potentially comes into play once interest is
payable on a debt. As to the meaning of ‘debt’, Makate v Vodacom , and the
authorities cited, is instructive:27 for present purposes the amount owed by the
Municipality to the Fund in terms of the PFA constituted a ‘debt’ imposed by statute
and, once interest became payable, the rule came into play .28 This meant that o nce
the sum of the unpaid interest equ alled the amount of the outstanding capital, the
running of interest stopped . The invitation to restrict the application of the rule in the
manner suggested by the Fund must, therefore, be refused .
Does the PFA exclude the rule?
23 Ibid.
24 Ethekwini Municipality v Verulam Medicentre (Pty) Ltd (Verulam Medicentre ) para 23. Cf
Commissi oner, South African Revenue Service v Woulidge 2002 (1) SA 68 (SCA); [2002] 2 All SA
199 (SCA) para 12. Also see LTA Construction above n 9 , referring to ‘agterstallige rente ’, which may
be interpreted as ‘overdue’ or ‘in arrear’ interest, namely money (interest) owed that should have been
paid earlier; an ‘amount still outstanding or uncompleted … a debt unpaid’: Da Cruz v Bernardo above
n 22 para 51.
25 Grancy Property Limite d and Another v Gihwala and Others [2024] ZASCA 144; 2025 (2) SA 76
(SCA) para 218.
26 Act 55 of 1975.
27 Makate v Vodacom Ltd 2016 (4) SA 121 (CC) para 85, citing Electricity Supply Commission v
Stewarts and Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A) ( Escom ) at 344E –G. ‘Debt’, following a
dictionary definition, was defined in Escom to mean ‘1. Something owed or due: something (as
money, goods or service) which one person is under an obligation to pay or render to another. 2. A
liability or obligation to pay or render something; the condition of being so obligated.’
28 Municipal Workers Retirement Fund v Umzimkhulu Local Municipality and Others [2023] ZAKZPHC
80 paras 14, 15; Cf Da Cruz v Bernardo above n 22 paras 57, 58.
[11] The Fund’s suggestion that the PFA must be interpreted to exclude the rule is
equally untenable. The established rule of interpretation is that a statutory provision
should not be interpreted to alter the common law more than is necessary unless the
intention to do so is clearly reflected in the enactment, whether expressly or by
necessary implication:29
‘[I]t is a sound rule to construe a statute in conformity with the common law,
save where and insofar as the statute itself evidences a plain intention on the
part of the Legislature to alter the common law. In the latter case the
presumption is that the Legislature did not intend to modify the common law to
any extent greater than is provided in express terms or is a necessary
inference from the provisions of the enactment.’
[12] It is always presumed that statute law does not alter the existing law more
than is necessary .30 There is no reference to the rule in the PFA and no express
wording to suppor t the contention that the legislature intended to exclude the rule
when interest is payable on late contributions to a pension fund organisation. On my
reading, this is also not to be implied simply because the PFA provides that interest
is payable ‘from the first day following the expiration of the period in respect of which
such amounts were payable…’ . The focus of that subsection is on the date from
which interest accrues, rather than necessarily implying deviation from the rule.
Read individually or cumulatively, the provisions of the PFA dealing with matters
such as the obligation to pay contributions, the time for payment, date of
commencement of interest, the prescribed rate and personal liability for compliance,
29 Nedbank v The National Credit Regulator [2011] ZASCA 35 (Nedbank ) para 38
30 See L Du Plessis LAWSA para 340. The presumption is meant, firstly, to enhance legal certainty.
Secondly, it manifests esteem for the worth of the common law as the outcome of historical evolution.
‘Common law is seen as the basis of the current law and statute law as an exception to common law,
but the courts’ manner of statutory interpretation has often lent precedence to the intention of the
legislature as expressed in clear and unambiguous statutory languag e.’ Casserley v Stubbs 1916
TPD 310 312: ‘It is a well -known canon of construction that we cannot infer that a statute intends to
alter the common law. The statute must either explicitly say that it is the intention of the legislature to
alter the common law, or the inference from the ordinance must be such that we can come to no other
conclusion than that the legislature did have such an intention. ’ Fey NO and Whiteford NO v
Serfontein and Another 1993 (2) SA 605 (AD) a t 613F –H: ‘…statutes in derogation of the common
law are to be strictly construed. The common law will be displaced only where the terms of the statute
are irreconcilably opposed to the common law.’
cannot be read to evince a n express or impli cit intention to alter the applica bility of
the rule in the present circumstances .
[13] The Fund is also unable to rely on t he framing of the National Credit Act (the
NCA) in support of its contention . This argument was raised in the Fund’s heads of
argument . Section 103(5) of the NCA has been held to embody no more than a
specific rule with limited operation and applicable only to specific circumstances,
namely credit agreements subject to the NCA. It is not a codification of the rule but
rather a self -standing provision that amends and extends the rule without
incorporating all or any of the aspects , despite dealing with the same subject
matter.31
[14] To the extent that it remains necessary to interpret the PFA in accordance
with the established approach to interpretation, I consider the interpretation favouring
the application of the rule to be the one that is practical , sensible and business -like.32
Interpreting the PFA in the manner favoured by the Fund results in oppressive
consequences for the Municipality , in the sense that it will be ordered to make
payment of an amount of interest some seven times more than the capital amount
paid.33 This in circ umstances where any prejudice to the Fund and its members
could have been avoided by obtaining judgment at an earlier date.34
Is this court functus officio ?
[15] Finally, t he Fund suggests that this court is bound by statements in Margo
and Another v Gardner and Another; Gardner and Another v Margo and Another
(Margo ), so that the judgment, which makes no reference to the applicability of the
rule, must be enforced as it rea ds. In addressing this argument, i t is important to
emphasise that the SCA decision in Margo was informed by the failure of one of the
court s a quo to appreciate the law as it stood prior to Paulsen , namely that the rule
31 Nedbank above n 29 para 38.
32 Natal Joint Municipal Pen sion Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) (Endumeni
Municipality ) paras 17 –26.
33 Endumeni Municipality above n 32 para 26.
34 See the remarks in Oneanate above n 15 at 834D –E; Paulsen above n 2 para 96 : it is settled that
the rule permits interest to run anew from the date that the judgment debt is due and payable.
was suspended pendente lite . The ratio underpinning the SCA decision was that the
rule did not apply pendente lite , so that it was inapplicable on the facts of that
matter.35 In particular, the Fund relies on the following :
‘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…’
[16] As noted in Da Cruz v Bernardo , those remarks were obiter .36 As is evident
from the quotation itself, the statements are also explicitly restricted to the facts of
that appeal . Resolving the present dispute does not require interpretation of the
judgment.37 While the court is functus officio in relation to the Municipality’s liability to
the Fund for interest, it is not functus officio in relation to the question whether the
rule applies to the interest awarded in the judgment.38
[17] I am unpersuaded that it is necessary for a court to always specify the
application of a common law rule limiting the amount of interest payable. That the
court expresse d itself unambiguously in ordering interest without reference to the
rule is neither here nor there.39 Similarly , courts typically also do not speci fy that
post-judgment interest, which runs afresh from the date of judgment, is impacted by
the rule, yet this is clearly the law.40 The position must surely be that , generally
speaking, the rule applies unless the court makes an order to the contrary. Such an
order would typically require arguments to be addressed to the court on the
inapplicability of the rule, particularly given the authorities that have further restricted
35 Margo above n 22 paras 14, 15.
36 Da Cruz v Bernardo above n 22 para 35.
37 Ibid para 14.
38 Ibid.
39 Cf Administrator, Cape, and Another v Ntshwaqela and Others 1990 (1) SA 705 (A) at 716B –D.
40 Drake Flemmer and Orsmond Inc and Another v Gajjar NO [2017] ZASCA 169; [2018] 1 All SA 344
(SCA); 2018 (3) SA 353 (SCA) para 87 ; Slip Knot Investments above n 10 para 21: ‘The in duplum
rule [operates] to limit the interest recoverable on a debt at two points in time … A t the stage of
judgment the whole judgment debt, that is, capital plus all accumulated interest to date of judgment,
will bear interest until it again reaches the duplum. ’
the possible waiver of the rule.41 While it is true that some cases have incorporated
explicit reference to the rule in granting an order for interest, this appears to have
been purely ex abundanti cautela (out of an abundance of caution).
[18] Various authorities support this position. Niekerk , discussed above, provid es a
striking illustration of a judgment that made no reference to the rule, yet was
amended to prevent execution for an amount of unpaid interest more than the
capital. More recently, i n Viking Inshore Fishing (Pty) Ltd v Mutual and Federal
Insurance Co ,42 the SCA specifically considered the application of the rule during its
judgment and added that the consequences of the interest calculation in the light of
the applicability of the rule ‘will have to be worked out when payment is made’.
Importantly, in upholding an appeal against the judgment of the court below, Wallis
JA (writing during 2016 ) set aside and replaced that judgment with an order in favour
of the plaintiff for payment of the sum of R3 990 000 together with interest on that
sum ‘at a rate of 15,5% per annum from 8 October 2005 to date of payment’. Despite
the SCA having clearly ack nowledged the potential applicability of the rule in the
interest calculation, there was simply no need for the SCA to incorporate reference
to the rule in the formulation of the order. That approach supports the position as I
understand it.43 To hold othe rwise would, in effect, make the rule inapplicable both in
cases of default and where parties, and the court, are not alive to the potential
applicability of the rule. As a blanket approach, that appears to be untenable. The
consequence is that the Municip ality’s failure to defend the claim, or plead reliance
on the rule, is not a basis for dismissing the present application. The effect of the rule
41 See, for example, Oneanate above n 15 para 36; Verulam Medicentre above n 24 .
42 Viking Inshore Fishing (P ty) Ltd v Mutual and Federal Insurance Co [2016] ZASCA 21; [2016] 2 All
SA 730 (SCA); 2016 (6) SA 335 (SCA) para 56.
43 The facts of Bovicon above n 20 also support this reading. See BOE Bank v Grange Timber
Farming Co (Pty) Ltd [2007] ZASCA 4; [2007] SCA 4 (RSA) para 24 , a pre -Paulsen authority : ‘Both
counsel agreed that the correct amount for the purposes of any order by this Court in favour of the
bank is R4 371 065,40 (comprised in equal parts of capital and capitalized interest as at the date of
issue of summons) plus interest a tempore morae at the rate of 15,5% per annum from date of issue
of summons to date of payment. Counsel so agreed in the light of the fact that the in duplu m rule is
suspended pendente lite from the date of service of the initiating process until judgment. Once
judgment has been granted, interest may run until it reaches double the capital amount outstanding in
terms of the judgmen t.’ In the order, however, i t was again considered unnecessary to make any
reference to the applicability of the rule in ordering only ‘interest a tempore morae thereon at 15,5%
per annum from date of service of the summons until date of payment’. Also see Louis Pasteur
Holdings (Pty ) Ltd v Bonitas Medical Fund [2018] ZASCA 82 para 42, referring to an order expressly
limiting interest based on the rule as, on the face of it, ‘peculiar’.
was to limit the amount of interest recoverable by the Fund prior to and post -
judgment. The judgment itself di d not vary that position .
[19] The judgment in F&I Advisors (Edms) Bpk v Eerste Nasionale Bank van SA
Bpk (F&I Advisors ) must be construed accordingly.44 In that matter, the parties had
settled the extent of the claim in the alternative , so that evidence on quantum was
unnecessary. Despite this, the appellant had applied to amend their plea to include
the contention that the interest claimed by the respondent contravened the rule. Until
that point, there was no suggestion that the appella nts relied on the rule, despite
counsel for the respondent raising the issue during the opening address. Of
importance was the fact that the parties had specifically reached agreement to
exclude such disputes involving the quantum , and there was no clear e vidence that
the rule had been breached at all. It was against that background that the SCA held
that the parties were bound by their agreement limiting the issues that formed the
subject of the litigation. No reasons had been advanced to justify why the a ppellants
should be released from their own agreement. Where a claim was based on an
overdrawn account, the plaintiff was not expected to detail the composition of their
claim absent the underlying debits being placed in dispute. The composition had only
been placed in issue in clearly defined respects, and no additional onus or evidential
burden arose. It was therefore held that c ourts were not required to determine
contravention of the rule of their own accord, or due to mere suspicion , based on
fragments of evidence.
[20] The present circumstances are vastly different. The interest component of the
claim was not quantified prior to the granting of default judgment. There was no
agreement in respect of the issues in dispute, including quantum, or waiver of the
rule. The judgment related to a statutory obligation in respect of interest, as opposed
to a claim based on an overdrawn account . The cases are distinguishable so that
F&I Advisors does not suppor t the contention that this court is functus officio . What is
relevant , and supportive of the position adopted, is the confirmation that courts would
44 F&I Advisors (Edms) Bpk v Eerste Nasionale Bank van SA Bpk 1999 (1) SA 515 (SCA) (F&I
Advisors ).
obviously not order interest in contravention of the rule.45 The judgment must be
construed accordingly.
Costs
[21] Counsel were in agreement that the matter warranted the use of two counsel,
including senior counsel, and that an award of costs in accordance with Scale C as
set out in rule 69(7) of the Uniform Rules of Court was appropriate. I agree and order
acco rdingly.
Order
[22] The following order is issued:
1. The writ issued by the first respondent be and is hereby set aside.
2. It is declared that the interest payable by the applicant to the first respondent
in terms of an order of this court (case number 3016/2019) is limited by the
application of the in duplum rule.
3. The first respondent is directed to pay the costs of suit, including the costs of
two counsel to be taxed in accordance with Scale C, set out in rule 69(7) of
the Uniform Rules of Court.
_______________ __________
A GOVINDJEE
JUDGE OF THE HIGH COURT
I agree.
_________________________
45 Ibid at 525E.
ZM NHLANGULELA
ACTING JUDGE PRES IDENT OF THE HIGH COURT
I agree.
_________________________
L ELLIS
ACTING JUDGE OF THE HIGH COURT
Heard: 10 March 2025
Delivered: 18 March 2025
Appearances:
For the Applicant : Adv A Beyleveld SC
Adv G W W Brown
Instructed by: Wheeldon Rushmere & Cole Inc
119 High Street
Makhanda
bbb@wheeldon.co.za
For the First Respondent: Adv P van der Berg SC
Adv H Drake
Instructed by: Shepstone Wylie Attorneys
c/o De Jager & Lordan Inc
2 Allen Street
Makhanda
stuart@djlaw.co.za