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MAKHANYA SIPHO 3RD RESPONDENT
LINK NO. 3852982
MPOFU DORRIS SAMUKELO 4TH RESPONDENT
LINK NO. 3850617
MALEBJOE MASINHLE PRECIOUS 5TH RESPONDENT
LINK NO. 3872923
MAHLINZA NOLLY G OBO A MINOR 6TH RESPONDENT
LINK NO. 3906685
MAHLINZA NOLLY G OBO A MINOR 7TH RESPONDENT
LINK NO. 3927998
MANZINI ZANDILE PATRICIA 8TH RESPONDENT
LINK NO. 3325474
MBATHA SMANGALISO KENNETH 9TH RESPONDENT
LINK NO. 3802380
SHONGWE JORAM CINDA 10TH RESPONDENT
LINK NO. 3802443
NDLALA NKOSINATHI ZAKHELE 11TH RESPONDENT
LINK NO. 3917076
NGWENYA ZINHLE IMMACULATES 12TH RESPONDENT
LINK NO. 4601378
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THWALA AKHONA PATRICIA OBO A MINOR 13TH RESPONDENT
LINK NO. 4602243
SHERIFF PRETORIA EAST (CENTURION) 14TH RESPONDENT
_________________________________________________________________
J U D G M E N T
_________________________________________________________________
RATSHIBVUMO DJP:
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email. The date and time for the hand-down is 13
October 2025 at 10H00.
[1] Background.
Facts leading to this application are common cause. The First to Thirteenth
Respondents (the Respondents) claimed compensation from the Applicant, and
their claims were all settled. Each settlement agreement in these claims was
made an order of the court. Following the settlement, the capital claimed
together with costs was paid to the Respondents’ attorneys of record. The
settlement agreements did not include provisions for the payment of interest on
the capital amount. However, the Respondents applied to the Registrar of this
Court and were granted warrants of execution in respect of interest on the capital
amount that the Applicant settled.
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[2] The Applicant’s application was brought in two parts, designated as Parts A and
B. In Part A, which was brought on the urgent court roll, the Applicant sought
and was granted an order restraining the Fourteenth Respondent from attaching
its movables to satisfy the debt arising from various writs issued to recover the
interest in these claims, pending the determination of Part B. In Part B of the
application, the Applicant seeks an order to set aside the writs of execution
issued in respect of these claims, as th e court orders on which they are based
made no provision for interest to be paid.
[3] The First to Thirteenth Respondents (the Respondents) oppose the application.
They admit all the factual averments made by the Applicant. However, they
contend that they are legally entitled to interest under the provisions of sections
2(1) of the Prescribed Rate of Interest Act, No. 55 of 1975 (the PRIA) and
17(3)(a) of the Road Accident Act, No. 56 of 1996 (the RAF Act).
[4] Issues for determination by the Court are whether a judgment creditor is entitled
to interest on the debt in circumstances where the judgment is silent on whether
interest shall be charged. If so entitled, the court should further determine if
there is a l egal duty or obligation on the judgment creditor to first seek and
obtain a court order before issuing a writ of execution on interest.
[5] The law.
Section 2 of the PRIA, provides,
“2 Interest on a judgment debt
(1) Every judgment debt which, but for the provisions of this subsection, would not
bear any interest after the date of the judgment or order by virtue of which it is due,
shall bear interest from the day on which such judgment debt is payable, unless that
judgment or order provides otherwise.
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(2) Any interest payable in terms of subsection (1) may be recovered as if it formed
part of the judgment debt on which it is due.
(3) In this section 'judgment debt' means a sum of money due in terms of a judgment
or an order, including an order as to costs, of a court of law, and includes any part of
such a sum of money, but does not include any interest not forming part of the
principal sum of a judgment debt.
[6] Section 17(3)(a) of the RAF Act, provides,
“(3) (a) No interest calculated on the amount of any compensation which a court
awards to any third party by virtue of the provisions of subsection (1) shall be payable
unless 14 days have elapsed from the date of the court's relevant order.
[7] Discussion.
In all thirteen matters involved in this application, the judgment debts have since
been paid by the Applicant to the claimants. It is common cause, however, that
the payments were made late, meaning beyond the 14 days stipulated in section
17(3)(a) of the Road Accident Fund Act. In two matters where the agreement
explicitly provided for payments within 180 days, the Applicant failed to make
the payment within that period.
[8] The question is whether it is a prerequisite for the agreement on a debt to include
a provision for interest, for the claimant to be entitled to it. In ABSA Bank Beperk
v Du Toit,1 the court had to determine whether a written “instrument of debt”
was a prerequisite for the levy and recovery of finance charges (interest) .
Traverso J , as she then was, rejected the defendant’s argument that in the
absence of the provision in the instrument of debt, a moneylender cannot even
charge default interest under the provisions of the PRIA.
1 [1997] 4 All SA 1 (C).
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[9] The court concluded, therefore, that the defendant’s approach, if adopted, would
negate the provisions of section 1 of the PRIA. It held that section 1 explicitly
states that where interest rates have not been agreed upon (in other words , not
embodied in a debt deed or any similar document), the interest shall be
calculated at the rate announced in the Government Gazette from time to time.
It was also considered outrageous to suggest that, in the absence of a debt deed,
even default interest cannot be charged.2
[10] In Linton v Corser,3 Centlivres CJ, writing for the Appellate Division, held
that interest tempore morae could still be claimed even when the sale agreement
made no provision for it. The court of appeal emphasised that interest ex mora
is considered ancillary and not dependent on an express agreement in the
contract. It further stated that interest is the "life -blood of finance" in modern
times, and there is no reason to distinguish between interest ex contractu and
interest ex mora. This statement is as true today as it was 73 years ago when it
was penned down, and it has been followed over the past seven decades.4
[11] This approach was followed by Petse DP in Nedbank Ltd v Houtbosplaas
(Pty) Ltd and Another,5 when he held,
“[I]t is by now recognised without question that a party who has been deprived of the
use of his or her capital for a period of time has suffered a loss and does not need to
establish special proof of his or her damages. This was reiterated by this court
in Bellairs v Hodnett and Anothe r (1978 (1) SA 1109 (A) ) as follows: '(U)nder
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
2 ABSA Bank Beperk v Du Toit Supra at p. 12.
3 1952 (3) SA 685 (A).
4 See, for example, Kujawa N.O obo M.N v Road Accident Fund (18198/2018) [2023] ZAWCHC 153 (19 June
2023) at para 7 and Jacobs N.O v Road Accident Fund (2022-22121) [2024] ZAGPJHC 21 (5 January 2024) at para
11.
5 2022 (6) SA 140 (SCA) at para 52.
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thereby cause him loss. It is for this loss that the award of mora interest seeks to
compensate the creditor.'”
[12] Counsel for the Applicant and counsel for the Respondents referred me to
the judgment of Stoffels and Another v Road Accident Fund ,6 where the
judgment creditor approached the court for an order to recover interest ex mora
after the judgment . Just like in this case , the claimant s were awarded their
claims, and the orders made did not contain any provision or reference to
interest. The respondent (the RAF), who is the same as the Applicant in casu,
had argued then as it does here that it should not be held liable for interest as
there were no specific provisions for that in the original judgments.
[13] The RAF also contended that the applicants were barred from claiming
interest due to the principle of res judicata. It argued that there were no appeals
lodged regarding those judgments. The judgments in question made no explicit
provision for interest.
[14] The court rejected the RAF’s argument and held that its interpretation of
the PRIA was clearly incorrect. It relied on section 2 of the PRIA, which states
that all judgment debts bear interest from the date they are payable unless
specified otherwise in the judgment.
[15] The Applicant’s reliance on this judgment is based on the belief that there
was a duty on the Respondents, as was the case with Stoffels, to approach the
court to determine if interest was payable when the judgments did not specify
this. Since Stoffels cannot be faulted for seeking court approval to address
legislated issues, I see no reason to consider that approach as setting a precedent
for other litigants. Stoffels' judgment did not consider whether there was an
6 (20656/2023) [2024] ZAWCHC 182 (25 June 2024).
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obligation to approach the courts for a ruling on the payment of interest.
Nevertheless, several decisions confirm that interest ex mora is not derived from
a contract. I believe the Applicant’s interpretation of the Stoffels judgment in
this respect is flawed and not supported by the reasoning within it.
[16] In Road Accident Fund v Sheriff of the High Court [Pretoria East] and
Others,7 the court dealt with an application by the RAF that closely resembles
the application in casu. The RAF sought to have the writs issued in various
matters set aside because the judgments on which they were based did not refer
to the interest to be paid. I align myself with the reasoning of the court in
dismissing that application.
[17] Section 17(3)(a) of the RAF Act provides for payment within 14 days, after
which interest shall begin to accrue. Section 2 of the PRIA outlines how interest
is calculated on a judgment debt. The words, “subject to any other agreement
between the parties..." empower the litigants to determine, among other things,
the interest rate and the date from which interest shall start to accrue. The parties
are therefore free to exclude interest if they wish.
[18] Similarly, the parties are at liberty to alter the days within which payment
must be made without interest accruing, from 14 days to 180 days, as is
customary in cases involving the RAF. Silence regarding interest in the contract
does not imply its exclusion. Section 2 of the PRIA was established for contracts
or debt instruments that do not specify interest. Any other interpretation would
render its provisions unnecessary, which would be absurd. In this application,
since the agreements that became court o rders did not exclude interest, the
application should fail.
7 (2022-056346) [2024] ZAGPPHC 953 (17 September 2024).