IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DMSION, CAPE TOWN
Case No.: I
In the matter between:
ZAIDSEEDAT
and
THE MINISTER OF CORRECTIONAL SERVICES
Coram:
Heard:
Delivered:
Montzinger AJ
25 - 26 February, 24 March 2026
25 June 2026
10471-2004
Plaintiff
Defendant
Summary: Action for damages - The quantum of the damages claim for general damages
settled- dispute about pre-judgment mora interest - the provisions of the Prescribed Rates
of Interest Act 55 of 1975 and their application under consideration - Exercising of
discretion in terms of section 2A(5) of the Prescribed Rate of Interest Act to determine
whether interest is payable, the period involved and the rate at which interest is to be
charged.
ORDER
1. The defendant shall pay to the plaintiff pre-judgment mora interest on the amount
of R350,000.00 at the rate of 15.5% per annum, calculated from 11 December
2012 to 2 March 2026, in the amount ofR717,734.93 (seven hundred and
seventeen thousand seven hundred and thirty-four rand and ninety-three cents).
2. The total judgment debt is accordingly the sum of Rl ,067,734.93 (one million
sixty-seven thousand seven hundred and thirty-four rand and ninety-three cents).
3. The amount ofRl ,067,734.93 shall bear interest at the rate of 10.25% per annum
from the date of this order to the date of payment.
4. The defendant shall pay the plaintiffs costs of the quantum trial on the party-and
party scale, scale B.
5. Each party shall bear its own costs of the interlocutory and postponement
applications after 14 May 2025.
JUDGMENT
Montzinger AJ
Introduction
[1] This judgment concerns pre- and post-judgment interest on the amount of damages
in an action that was instituted as long ago as 2004. The plaintiff instituted action
against the Minister of Correctional Services (the "Minister"), arising from the
plaintiffs contraction of tuberculosis while detained at Pollsmoor Prison.
[2] After 21 years the parties finally agreed that the Minister was 100% negligent and
liable for the plaintiffs damages to be proven. That agreement was embodied in an
order granted by Erasmus Jon 26 May 2025. The matter came before me set down
as a trial to lead evidence to proof the plaintiffs damages.
[3] On the first day of the trial various interlocutory issues have arisen. In light of the
interlocutory issues the parties sought a postponement and for the matter to be re
emolled on the pre-trial roll to be case managed in order to resolve those
interlocutory disputes. I was however not inclined to allow the matter to enter the
pre-trial process again in circumstances where the plaintiff has had to endure the
fmalisation of his action for more than 20 years. I rather stood the matter down with
directions regulating the further conduct of the matter and scheduled a hearing date
to at least dispose of the interlocutory issues.
[4] Subsequent, to the matter standing down the parties managed to agree on a number
of issues. The plaintiff abandoned his claim in respect of all other heads of damages
except for general damages. The parties agreed on the quantum in the amount of
R350,000.00 for general damages. Various of the interlocutory skirmishes also
became redundant as the parties resolved them by agreement. As a result, only the
interest issue remained outstanding.
[5] No oral evidence was led in respect of the interest issue. Ultimately, the issue is one
of law having regard to the undisputed facts as they appear from the record. Mr
Abrahams for the plaintiff and Ms Pillay, for the Minister, both filed comprehensive
written submissions, which was of great assistance to the court. I start by setting out
the context and procedural history of the matter.
Relevant context and procedural history
[ 6] The plaintiff, Mr Zaid Seedat, was imprisoned between approximately 15 June 2000
and 30 August 2003 in Pollsmoor Prison as an awaiting trial prisoner. While in
custody he had numerous court appearances. The criminal proceedings against him
eventually culminated with him being convicted and given a suspended sentence
and a fine. For most of his imprisonment he was held in the Hospital Section of
Pollsmoor Prison, occupying a single cell, with frequent visits to a 12-person
communal hospital cell.
[7] However, the plaintiffs incarceration resulted in him contracting and being
diagnosed with pulmonary Tuberculosis ("TB") in late November 2001,
approximately 17 months after being imprisoned.
[8] Alleging that the Minister was responsible for him contracting TB while he was in
prison at Pollsmoor, the plaintiff, in December 2004, issued summons against the
Minister for delictual damages. The plaintiff initially claimed damages in the
amount of R849,000.00, delineated as Rl ,000.00 for past hospital and medical
expenses; RI 00,000.00 for future estimated medical expenses, R648,000.00 for loss
of earnings and RI 00,000.00 in general damages.
[9] After pleadings closed, the matter entered a period of inactivity. This was in the
main because of a similar action having been instituted by a Mr Dudley Lee against
the same Minister (the "Lee action") arising from his contraction of TB, also at
Pollsmoor prison. It therefore made sense for the plaintiffs action to await the
outcome of the Lee action. The Lee action was first litigated in this Division where
Davis J found in Mr Lee's favour on liability1, and then through the Supreme Court
of Appeal, which overturned that finding on the issue of causation2.
[IO] The Lee action concluded on 11 December 2012 in the Constitutional Court when
that court granted Mr Lee leave to appeal the Supreme Court of Appeal's judgment.
1 Lee v Minister of Correctional Services 201 l (6) SA 564 (WCC)
2 Minister of Correctional Serv_ices v Lee 2012 (3) SA 617 (SCA)
The Constitutional Court held that the responsible authorities' failure to maintain
an adequate system for the management of TB constituted negligence, and that the
common law of causation required development in accordance with the spirit,
purport and objects of the Bill of Rights to accommodate claims of that nature. The
Constitutional Court thus resolved the legal principle upon which the viability of
the plaintiffs claim in the present matter depended.
[11] Post the Constitutional Court judgment in the Lee action the plaintiffs action still
did not progress with any haste. On 14 May 2014, two years post the outcome of
the Lee action, the parties agreed to a separation of the quantum and damages.
Thereafter, the action again entered a period of inaction. Another ten years later on
14 June 2024 Magardie AJ made an order recording the parties' settlement of the
quantum for the plaintiffs damages in the amount R300,000.00. Unfortunately, that
did not give finality to the matter as that order was subsequently rescinded by
Acting Justice Fagan on 21 November 2024. There are no reasons for that rescission
order.
[12] On 14 May 2025, the parties concluded a Rule 37A agreement and a Certificate of
Trial Readiness was issued and on 21 May 2025, Erasmus J certified the matter
trial-ready. A week later on 26 May 2025, Erasmus J issued an order, by agreement,
where the parties again settled the merits 100% in favour of the plaintiff and that
the Minister would be liable for the amount of damages to be proven. The matter
was allocated a trial date from 25 - 26 February 2026, to lead evidence on damages.
[13] In anticipation of the trial, the plaintiff filed a new expert report by Dr Chapman on
11 November 2025. On 12 November 2025 the plaintiff also served a Rule 28(4)
notice seeking to amend the quantum of its general damages claim from
Rl00,000.00 to RS00,000.00. The defendant filed a notice of objection, to that
amendment on 27 November 2025. Then a flurry of activity ensued as there
followed a series of interlocutory applications and procedural disputes during
January and February 2026. This included Rule 35(3) and Rule 30A notices by the
Minister, and a Rule 38(2) application by the plaintiff, and ultimately the Minister's
application for a postponement of the trial set down before me on 25 - 26 February
2026.
[14] As mentioned, at the start of the trial on 25 February 2026 the events I described in
the introductory paragraphs of this judgment unfolded. In order to tidy up the
pleadings, on 12 March 2026, the plaintiff filed amended particulars of claim
reflecting the agreed quantum amount for general damages of R350,000.00. The
parties then filed heads of argument on the outstanding interest and costs issues.
[15] Therefore, the only outstanding issues in respect of the main claim that required
detennination are as follows. Firstly, whether the plaintiff is entitled to pre
judgment mora interest on the agreed capital general damages amount of
R350,00.00. Secondly, whether the plaintiff is entitled to post-judgment interest.
Thirdly, if the plaintiff is entitled to pre-judgment mora interest, from what date, at
what rate, and whether the in duplum rule applies if the interest amount exceeds the
capital. Fourth, the appropriate costs order in respect of the interest issue; and lastly
an appropriate costs order in respect of the various interlocutory proceedings and
postponement application that preceded the settlement.
Pre-judgment mora interest
II 6] This section of the judgment set out the respective arguments on behalf of the
parties how the court should apply the prevailing legal position to the question of
whether the plaintiff is entitled to pre-judgment mora interest in respect of this
matter.
The plaintiffs case on pre-judgment mora interest
[17] It was argued on behalf of the plaintiff that since the claim is for an unliquidated
debt, within the meaning of section 2A(l) of the Prescribed Rate oflnterest Act 55
of 1975 (the "PRIA") the capital damages amount shall bear interest as
contemplated in section I of PRIA and that the interest shall run from date of service
upon the debtor of demand or summons, whichever is the earlier3. Therefore, so it
was argued, since the date of service of summons is 9 December 2004, at the
prescribed rate then applicable at the time, being 15.5% per annum4, it means that
the pre-judgment interest on the capital amount of R350,000,00 is Rl,151,883.56 5
and the total judgment amount should be consolidated and amount to
Rl,501 883,56.
[18] Relying on Da Cruz6 it was also argued that the consolidated judgment amount
attracts interest afresh from the date of judgment at the prescribed rate of 10,25%
in operation at the time of judgment.
3 section 2A(2)(a) of PRIA
4 The rate of interest being 15,5¾ remaining constant from the date interest begins to run in accordance
with the judgment of Davehil/ (Pty) Ltd Ltd v v Community Community Development Development Board
Board 133 1988 (1) SA 290 AD
5 This is calculated to the earlier date of27 February 2026 when the general damages were settled according
to the Plaintiff
6 Da Da Cruz v Bernardo 2022 2022 (2) (2) SA SA 185 185 (GJ) (GJ) at para 57.2
[19] Furthermore, on the issue of whether the plaintiff s calculation of pre-judgment
mora interest offends the in duplum rule Mr Abrahams argued that the rule does not
apply to pre-judgment interest as pre-judgment interest will not be arrear interest.
Reliance for this proposition was placed on the Supreme Court of Appeal and
Constitutional Court judgments in Drake Flemmer7 and Slipknot8, that the in
duplum rule only applies to arrear interest. The aforementioned approached was
followed by Bischof! in this division a judgment by Pangarkar J where she did a
careful analysis of the legal position to conclude that where interest had not accrued
prior to judgment it was not due and therefore could not be arrear interest.
[20] It was also argued that the court should exercise its discretion to award pre
judgment mora interest in terms of s 2A(5) of PRIA. It was not clear whether this
argument was in the alternative to the main arguments that I have set out or as a
self-standing ground for pre-judgement mora interest arriving at the same result. I
will treat it as a self-standing basis to award interest, as that is the only approach
that makes sense.
The defendant's case on pre-judgment mora interest
[21] The Minister's argument, presented by Ms Pillay, certainly appears to have an aura
of complexity. Ms Pillay advanced a few interconnecting arguments in respect of
its objection to the plaintiff's pre-judgment mora interest claim. I decided to
categorise these arguments in three distinct sections. They are the interpretation of
section 2A of PRIA argument, the general application of section 2A of PRIA
1 Drake Flemmer & Orsmond Inc v Gajjar 2018 (3) SA 353 (SCA) at para 84
8 Paulsen v Slipknot 2015 2015 (3) SA 479 (CC)
9 Passenger Rail Rail Agency of of South Africa v v Bisschoff N. 0 obo Reyners 2024] [2024] ZAZA WCHC
WCHC207
argument, and lastly the discretion to award interest in terms of section 2A(5) of
PRIA.
The interpretation argument
[21.1] In tenns of this categorisation of the argument the Minister aims to
establish parity between interest claims in personal injury claims against
organ of state defendants in general under section 2A of PRIA and interest
claims for personal injury claimants against the Road Accident Fund, who
is also the state. The argument proceeds along the lines that section 2A of
PRIA, must be interpreted to read the same as section 17(3)(a) of the Road
Accident Fund Act, 56 of 1996 (the "RAF Act") to ensure that the
assessment of personal injury damages claims against non-RAF organs of
state be deemed to be determined at date of trial and accordingly,
restrained from accruing mora interest until date of judgment.
The application of the provisions of section 2A of PRIA in general
(21.2] Under this categorisation of the argument the Minister relies on various
propositions why pre-judgment mora interest should not be levied.
[21.3) First, it is argued that general damages for pain and suffering are not a
'monetary debt' that existed as at the date of summons, but rather a non
economic loss that is only 'converted into monetary values' at the date of
settlement of the claim, being 2 March 2026. Therefore, the claim for
general damages constitutes 'future loss' as envisaged by section 2A(3) of
PRIA, with interest running only from the date of judgment, or in this case
date of settlement. Reliance is placed on judgements like Vander Merwe 10,
Hartley 11 for the proposition that general damages are not a 'monetary
debt' that comes into existence at a fixed amount on the date of the deli ct.
Consequently, so the argument goes, mora interest on general damages
should only accrue from date of judgment.
[21.4] Secondly, it was argued on behalf of the Minister that the qualification and
definition of "demand" in section 4(ii) of PRIA is an important regulatory
feature which places an obligation on a claimant to set out his or her claim
in such manner that the debtor may reasonably assess the quantum thereof
at the date of demand so that the general damages could 'reasonably be
assessed' at the date of demand or summons. In this case it is argued that
the plaintiffs claim was not set out in such a manner to enable the Minister
to assess the claim for general damages on 9 December 2004 within the
meaning of section 2A(2)(a) of PRIA. Consequently, the amount was only
quantified over twenty-one years later and entitlement to pre-judgment
mora interest therefore does not arise.
[21.5] Thirdly, it was argued, relying on various authorities, that if interest is to
run from date of summon~, the capital amount must be reduced to its value
at the date from which interest accrues. Therefore, the general damages
amount of R350,000.00 would have to be reduced or discounted back to a
2004 nominal currency value in accordance with prior inflation or CPI
rates in order to obtain the nominal rate in 2004. Interest should be
10 Van der Men11e v Road Accident Fund2006 (4) SA 230 (CC)
11 Hartley v Pyramid Freight (Pty) Ltd 1990 (4) SA 833 (AD)
calculated on that capital amount. If this proposition is upheld the Minister
also argued that since the plaintiff failed to tender any evidence or actuarial
report on how this exercise should be done the plaintifPs claim for mora
interest should be dismissed on this basis.
[21. 6] Fourth, the Minister argues that the court's discretion in terms of section
2A(5) of the PRIA should be invoked in its favour relying on various
factors. However, relying on the judgment in Ade/12 the argument has an
extra leg. It is argued that the discretion should override the provisions of
section 2A of PRIA. It is argued that applying section 2A in the manner
which the plaintiff wishes for the court to apply it would lead to an unjust
result and therefore, the court should rather resolve the issue of mora
interest by exercising its discretion and should be based on the Minister's
calculations.
[22] All the arguments raised by the Minister unnecessarily complicated the interest
issue and the court's evaluation thereof. I first provide an overview of PRIA and
thereafter I start of by evaluating the argument that there should be parity between
the Road Accident Fund Act and PRIA.
The legislative framework for pre-judgment more interest
[23] Section 2A13 of the PRIA governs interest on unliquidated debts. Section 2A(l)
provides that every unliquidated debt, as determined by a court or by agreement
between the parties, shall bear interest at the prescribed rate14. Section 2A(2)(a)
12 Adel Builders (Pty) Ltdv Thompson 1999 (1) SA 680 (SE) at 692 E-1.
13 Introduced by the Prescribed Rate of Interest Amendment Act 7 of I 997 with effect from 11 April 1997
14 The current prescribed rate is 10.25%
provides that such interest shall run from the date on which payment of the debt is
claimed by the service on the debtor of a demand or summons, whichever date is
the earlier. However, the subsection is subject to where the parties have an
agreement that regulates when interest starts to run or where the provisions of the
National Credit Act, 2005 applies.
[24] Section 2A(3) creates an exception for 'future loss': where the debt or any part
thereof represents the present value of a future loss, interest only commence to run
from the date of judgment, an arbitration award or the parties' agreement. Section
2A(4) regulates the interruption of the running of interest where payment is made
into court as an offer of settlement and the amount awarded by the court does not
exceed the amount paid into court.
[25] Section 2A(5) in tum confers a discretion on the court or an arbitrator or arbitration
panel, subject to certain caveats, to make such order as to it appears just in respect
of interest on an unliquidated debt, including an order as to the rate at which interest
shall accrue and the date from which interest shall run. The caveat that limits the
exercise of the discretion is where there is another law or an agreement between the
parties.
[26] Section 2A(6) provides that section 2(2) applies mutatis mutandis to interest
. recoverable under section 2A. The effect of section 2(2), when applied, is that any
interest payable may be recovered as if it formed part of the judgment debt on which
it is due.
[27] In the recent judgment of RAF v Stoffels15 the Supreme Court of Appeal was
concerned with the issue of the RAF's liability to pay post judgment interest where
the judgment awarding damages were silent on interest. The RAF argued that since
section l 7(3)(a) of the RAF Act provides that post judgment interest accrues from
14 days after judgment on awards of unliquidated damages against the RAF and
since that section is quiet on the rate and the date from which interest start to run,
that section 2A(5) of PRIA serves as the gateway to determine post judgment
interest.
The Road Accident parity argument
[28) It is convenient to start with this point as it will dispose of the pre-judgment mora
interest issue if I find that there is merit in it.
[29) Subsection l 7(3)(a) of the RAF Act provides that a claimant against the RAF is
entitled to interest only from fourteen days after the date of a final court order. The
Minister argued that because both the Minister and the RAF are organs of state,
there is no rational basis for differentiating between them, and that the principle of
restraint against the fiscus supports extending the RAF Act's limitation on interest
to the present claim.
[30) In support of this analogy, the defendant invokes equality before the law16 and the
principle in IIE v KZN Law Society17 that statutes dealing with the same subject
15 &ad Accident Fund v Sheriff of the High Court, Pretoria East and Others and Road Accident Fund v
Stoffels and Another (268/2025 ; 1182/2024) (2026] ZASCA 37 (24 March 2026). I was not referred to this
judgment during argument as it was handed down on the day the matter argued before me.
16 section 9(1) of the Constitution
17 2020 (2) SA 325 (CC)
matter or which are in pari materia should be construed together and harmoniously.
The defendant relies on Vermaak18 and Kwezi19.
[31] In Vermaak the court held that section 2A of PRIA cannot be reconciled with
section l 7(3)(a) of the RAF Act as it overrides section 2A of PRIA. In Kwezi
reliance was placed on Vermaak to conclude that section 2A of PRJA commenced
on 05 April I 997 whilst section 17(3)(a) of the RAF Act remains unchanged at
commencement on O 1 May 1997 which meant that the legislature did not intend to
remove the restriction in section 17(3)(a) of the RAF Act although it would have
been cognisant of section 2A of PRIA prior to enacting the former section.
[32] Consequently it is argued by the Minister that in view of the timing of the
enactments of the sections, with section l 7(3)(a) of the RAF Act being enacted one
month after section 2A of PRIA, that personal injury claims against non-RAF
organs of state, which fall out of purview of the RAF Act, should be interpreted in
accordance with the limitations interred in section 17(3)(a) of the RAF Act. The
argument stretched further to make the point that in view of the canons of
interpretation as stated in 1/E v KZN Law Society this Court should find that since
section 2A of PRIA and section l 7(3)(a) of the RAF Act are in pari materia
regarding the application of mora interest on personal injury claims, these sections
should be construed together.
[3 3] There are some obvious difficulties with the argument and considering the approach
I take in dismissing the argwnent it is not necessary to delve into an expansive
exposition for why the argument, in substance, has great difficulty. In respect of the
18 Vermaak v Road Accident Fund2008 JDR 0249
19 Kwezi obo Kwezi v Road AccidenJ Fund [201 1) ZA WCHC 455
substantiveness of the argument it suffices to find that neither Vermaak of Kwezi
assist the Minister as in Vermaak it was found that the provisions of subsection
17(3)(a) bar the payment of interest claimed by a plaintiff in terms of Section 2A
and that the two provisions are irreconcilable. Also, in answering the question as to
which statute should prevail the court in Vermaak in response to the request to apply
the principle of statutory interpretation that a later statute, the PRIA Act, prevails
over an earlier one, the RAF Act, the court came to the conclusion that the canons
of interpretation can only be applied where the two statutes are in pari materia or
is concerned with a similar subject, which the court held was not the case as far as
the two statutes are concerned.
(34] Vermaak and Kwezi on the facts concerned an attempt by plaintiffs to obtain an
order that they have an entitlement to pre-judgment mora interest in terms of PRIA
and that subsection 17 (3 )(a) of the RAF Act should be interpreted to read the same
as PRIA to support their entitlement to pre-judgment mora interest. The argwnents
raised by the Minister in this case is to rely on those judgments to tum the argument
the other way to contend that pre-judgment interest on an unliquidated claim should
rather be read with subsection 17(3)(a) of the RAF Act so that a plaintiff should not
be entitled to pre-judgment mora interest on general damages until the day a court
issues judgment. However, in Kwezi Henney J confirmed the position as was found
in Vermaak that the two statutes patently regulate the entitlement to interest at
different times. Section 2A of PRIA regulates pre-judgment mora interest on
unliquidated debts20 before judgment while the RAF Act only regulates the
20 RAF v Stoffels supra par [ 19)
entitlement to interest to start after 14 days of judgment. It is therefore not possible
to find that the two statutes are pari materia or is concerned with a similar subject.
[35) As the Supreme Court of Appeal recently found in RAF v Stoffels21 that since
section 2A of PRIA deals with pre-judgment interest on unliquidated claims, the
only time the two statutes intersect is after judgment once the court has quantified
the unliquidated claim and given judgment, the debt ceases to be unliquidated and
becomes a judgment debt within the meaning of s 2(3) of the PRIA. Thereafter, it
is section 2 not section 2A that governs the running of interest.
[36] Although there are other obvious difficulties I primarily dismiss the argument on a
procedural basis. The Minister has at no stage pleaded that section 2A of PRIA falls
to be construed in pari materia with section 17(3)(a) of the RAF Act, or that the
limitation applicable to interest claims against the Road Accident Fund must, by
interpretive parity, be extended to interest claims against organs of state generally.
The argument surfaces for the first time in the Minister's heads of argument.
[37] It is trite that a party is bound by its pleadings. The pleadings define the issues, and
the court is not at liberty to decide a case on a basis that falls outside the pleaded
issues unless that course is fair to both parties22. While the point appears to have
the hallmarks of a point of law in order for it to be raised in argument23, I am not
persuaded that this is such a point. The defendant's argument is a contention that
21 Paras (19)-(20)
22 Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107C-H; reaffirmed by the
Supreme Court of Appeal in Minister of Safety and Security v S/abbert [2009) ZASCA 163 at paragraphs
[I I] to [12], and by the Constitutional Court inMolusi v Voges NO2016 (3) SA 370 (CC) at paragraphs
[27) to (28)
23 GUSA v Tao Ying Metal Industries 2009 (2) SA 204 (CC) at paragraphs [67] to [68]
the RAF Act's statutory limitation should, by interpretive parity, be transposed into
PRIA.
[38] That contention rests on a senes of premises. Firstly, that the Minister of
Correctional Services and the Road Accident Fund stand on a sufficiently similar
fiscal footing to warrant identical treatment. Second, that the legislature, in failing
to enact a comparable limitation in respect of organs of state generally, fell into an
oversight that the courts must remedy. Third, that the practical and policy
considerations underpinning section 17(3)(a) of the RAF Act apply with equal force
to the Minister in this instance. Had the Minister pleaded the case properly, the
plaintiff would have been entitled to traverse those premises and, where
appropriate, to lead evidence in respect thereof.
[39] I an1 accordingly of the view that the RAF Act analogy argument is not properly
before me on the pleadings and cannot not be entertained.
The Minister's substantive arguments on the application of section 2A of PRIA
[40] As I have stated earlier the arguments raised by the Minister to impugn the
application of s 2A of PRIA certainly has an aura of complexity around them.
Although, on a cursory consideration of them I have to express that while they all
initially appear attractive, they traverse legal issues that our courts have already
pronounced on in one way or another. It is therefore not necessary for me to traverse
those issues again in this judgment. To the extent that some of the arguments are
such that certain legal clarity is needed this is the not the matter to embark on a
journey to provide clarity.
[ 41] I am, for the reasons that follow, of the view that this one of those cases in which
the proper course is for the court to exercise the wide discretion conferred upon it
by section 2A(5) of PRIA.
Exercise of discretion in terms of section 2A(S) PRIA
[42] I have set out the legislative framework earlier in this judgment that governs the
award of pre-judgment mora interest. Section 2A in its entirely, on a proper reading
establishes, in my view, two regimes for the determination of interest on
unliquidated debts.
[43] The first, is contained in section 2A(l) to (4). It fixes the rate, being the prescribed
rate, the start of the running of interest, being service of demand or summons, and
the qualifying conditions, being the reasonable assessability and the future-loss
exceptions. The second interest regime is contained in section 2A(5) which is
discretionary. It empowers the court, having regard to what is just in the
circumstances of the case before it, to determine for itself the question whether
interest is to be paid, at what rate, and from what date. These are two equally viable
options open to the court. It appears to me that a court is free, from the outset, to
elect to dispose of the question of interest under section 2A( 5) where it considers
that course to be just, without first having to go through the exercise of applying
section 2A(l) to (4) and then asking whether the result is so unjust that it must be
displaced by exercising itc; discretion.
[44] Section 2A(5) provides that "notwithstanding the provisions of this Act but subject
to any other law or an agreement between the parties, a court of law ... may make
such order as appears just in respect of the payment of interest on an unliquidated
debt, the rate at which interest shall be paid, and the date from which interest shall
run. "The section confers a broad discretion. However, the discretion is not at large.
It must be exercised judicially and in accordance with established principle.
[ 45] The present matter is, on careful reflection, such a case. As I have set out above,
when the plaintiff issued summons on 9 December 2004, the question whether the
Minister could be held liable in delict for damages arising from a detainee's
contraction of tuberculosis was an issue that was not clear as a matter of law. That
uncertainty was not resolved until the Constitutional Court delivered the Lee
judgment on 11 December 2012. It is common cause that the parties to the present
matter, with eminent good sense, agreed to hold the action in abeyance pending the
resolution of the Lee case. In those circumstances, the question whether it is just
that interest should run on the plaintiff's claim from a date on which the very
viability of the claim was, through no fault of either party, an open question of law
is one that calls for a different approach.
[46] The Minister, for its part, could not as a practical matter have settled or paid the
claim before Lee action was decided, because before Lee it was not at all clear that
any liability existed. The plaintiff, for his part, could not realistically have pressed
the claim to finality before the Lee action was decided, because to do so would have
been to risk losing on the very point that was under consideration by the Courts. To
impose pre-judgment mora interest on the Minister for the period between service
of summons and the delivery of the Lee judgment, when the existence of the
underlying obligation was the subject of legal consideration would in my judgment
not be just.
[47] I therefore exercise the discretion conferred by section 2A(5) and order that pre
judgment interest shall run not from the date of service of summons, but from 11
December 2012, being the date upon which the Constitutional Court delivered its
judgment in Lee. From that date, the ordinary considerations of pre-judgment mora
interest apply. The Minister knew, or ought reasonably to have known, that it was
liable. Furthermore, the plaintiff was deprived of compensation that should have
been paid.
[48] As to the rate, I see no reason to depart from the prescribed rate of 15.5% per annum
that prevailed at 11 December 2012. The rate of 15.5% is the rate that would have
applied during 2012. That rate will be the consistent rate to apply until the date of
judgment.
[49] I interpose to poilit out there is disagreement between the parties as to the date on
which agreement in respect of the damages amount was reached. The plaintiffs
counsel, Mr Abrahams, insisted that acceptance of the offer was communicated on
27 February 2026, while the Minister relies on 2 March 2026 as the date of
agreement. The issue is obviously relevant when the date from which interest is to
run is considered. However, I find it unnecessary to resolve this disagreement.
Neither party contends that the applicable interest rate changed between 27
February 2026 and 2 March 2026. The difference of three days on the interest
calculation is immaterial in the context of a dispute about interest exceeding RI
million. For the purposes of the calculation that I will apply, I shall use the date of
2 March 2026, being the date relied on by the Minister, as it is the later date and
therefore the more conservative basis for the plaintiffs claim.
[50] For the foregoing reasons, I hold that the plaintiff is entitled to pre-judgment mora
interest on the agreed capital amount of R350,000.00 at the rate of 15.5% per
annum, running from 11 December 2012 to the date of the parties' agreement on 2
March 2026. This means that the period from 11 December 2012 to 2 March 2026
at a rate of15 .5% per annum on a capital ofR350,000.00 the annual interest amount
to R717,734.93. The total judgment amount due is therefore Rl,067,734.93
(R350,000.00 + R717,734.93).
[51] Post-judgment interest shall accrue on the amount of Rl,067,734.93 at the current
prescribed rate of 10.25% per annum in terms of section 2 of PRIA until date of
payment.
[52] Since the interest component of the judgment amount exceeds the capital amount
the question arises whether the in duplum rule cape applies. I do not understand the
Minister's argument that the in duplum rule precludes me from ordering interest in
access of the capital amount for pre-judgment mora interest. In any event the legal
position is clear, having regard to Drake Flemmer24, pre-judgment mora interest in
terms of section 2A of PRIA is a statutory entitlement and not 'arrear interest' in
the sense contemplated by the in duplum rule. The Court in Drake Flemmer
endorsed the approach followed in Ethekwini Municipality25. lam bound by these
authorities. The in duplum rule does not apply to pre-judgment mora interest.
24 paras [83]-87
25 Ethekwini Municipality v Veru/am Medicentre (Pty) Ltd [2006] 3 All SA ;ns (SCA)
Costs in respect of the quantum trial
[53] The plaintiff, having succeeded in establishing the defendant's liability and the
quantum having been settled seeks an order that the Minister pay his costs for the
quantum trial. The plaintiff seeks costs on scale C.
[54] The Minister opposes scale C costs and, in the alternative, submits that adverse
costs consequences should follow from the plaintiffs conduct in the period
following the merits order of26 May 2025. The Minister contends that the quantum
should have been settled promptly after the merits order but that the plaintiff rather
unilaterally resiled from the Rule 37A agreement of 14 May 2025 by seeking to
amend the claim to R500,000.00, and that the plaintiffs filing of a new expert report
on 11 November 2025 and subsequent interlocutory activity caused unnecessary
costs.
[55] The general rule is that the successful party is entitled to costs. The Minister's
liability has been established. The plaintiff has substantially succeeded on the
interest issue and is entitled to costs. On the question of scale, I am not persuaded
that this matter warrants costs on scale C. The matter did not strike me as being one
of exceptional complexity or difficulty, although the Minister certainly attempted
to create an aura of complexity to the interest issue. I shall accordingly award costs
on the party-and-party scale, scale B.
Costs of the Interlocutaries
[56] The Minister made extensive submissions regarding alleged non-compliance with
Rule 37 A by the plaintiff and the plaintiffs attorney and seeks an adverse costs
order in respect of the wasted costs caused by the interlocutory and postponement
applications. The defendant relies on Hlatshwayo26 and other judgments to justify
it being awarded wasted costs in respect of the interlocutaries. The Minister
essentially accuse the plaintiff of having frustrated the objective of the judicial case
management process in the context of amending its claim amount to RS00,000.00
and also introducing a new expert report, after the rule 3 7 A minute did not envisage
or anticipate those steps.
[57] I accept that Rule 37A(l2)(h) empowers the court to make adverse costs orders
where a party has failed to comply with the obligations imposed by the rule or by a
case management order. However, the exercise of that power requires a holistic
assessment of the conduct of both parties and the interests of justice. In that regard,
I note the following. The plaintiffs attempted amendment to RS00,000.00 was
ultimately abandoned, and the matter settled at R350,000.00. To that extent, there
is force in the Minister's complaint that the notice of amendment prolonged the
proceedings and generated unnecessary interlocutories.
[58] On the other hand, the Minister was not without responsibility for the delay in the
settlement of the quantum amount. The Minister could have made an offer of
settlement soon after the Constitutional Court judgment of Lee.
[59] Furthermore, I am not convinced that the interlocutaries that ensured was entirely
the fault of one particular litigant. Both parties contributed to the interlocutory
disputes that ensued.
[60] I am therefore mindful to rather order that each party pays its own costs in respect
of the interlocutory and postponement applications that ensued after 14 May 2025.
26 Road A~ciclent Fund and Others v H/atshwayo and Others [2025] 2 All S,'.\ 333 (~CA)
Conclusion and order
[61] In the result, the following order is made:
6. The defendant shall pay to the plaintiff pre-judgment mora interest on the
amount of R350,000.00 at the rate of 15.5% per annum, calculated from 11
December 2012 to 2 March 2026, in the amount ofR717,734.93 (seven
hundred and seventeen thousand seven hundred and thirty-four rand and
ninety-three cents).
7. The total judgment debt is accordingly the sum of Rl ,067,734.93 (one million
sixty-seven thousand seven hundred and thirty-four rand and ninety-three
cents).
8. The amount of Rl ,067,734.93 shall bear interest at the rate of 10.25% per
annum from the date of this order to the date of payment.
9. The defendant shall pay the plaintiffs costs of the quantum trial on the party
and-party scale, scale B.
10. Each party shall bear its own costs of the interlocutory and postponement
applications after 14 May 2025.
Acting Judge of the High Court
Appearances:
Attorneys for plaintiff:
Counsel for applicant:
Attorneys for defendant:
Counsel for defendant:
Jonathan Cohen & Associates
Mr R Abrahams
State Attorney, Per: CJ Benkenstein
Mr. D Pillay