THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 564/09

In the matter between:

ROGER HUGH MARGO
First Appellant
SHERIFF FOR THE DISTRICT OF RANDBURG
Second Appellant

and

TONY RICKY GARDNER
Respondent

Case no: 511/09
In the matter between:

TONY RICKY GARDNER
First Appellant
OTR MINING LIMITED
Second Appellant

and

ROGER HUGH MARGO
First Respondent
SHERIFF FOR THE DISTRICT OF RANDBURG
Second Respondent

Neutral citation:
MARGO v GARDNER

(564/09) [2010] ZASCA 110 (17 September 2010)

Coram:

HARMS DP, HEHER, SHONGWE, LEACH JJA and

EBRAHIM AJA

Heard:

31 AUGUST 2010
Delivered:

17 SEPTEMBER 2010

SUMMARY:
In duplum rule – its application – whether interest accumulates
pendente lite – meaning of its suspension and consequences

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:
South Gauteng High Court (Johannesburg) as courts of first
instance).

The following order is made:

(1)
In case 564/09

The appeal is dismissed with costs, the appellants are ordered to pay such costs
jointly and severally, the one paying the other to be absolved.

(2)
In case 511/09

(a)
The appeal is upheld with costs; and
(b)
The order of the court a quo is set aside and substituted with the following:

‘The application is dismissed with costs.’

___________________________________________________________________

JUDGMENT
___________________________________________________________________

SHONGWE  JA  (HARMS DP, HEHER, LEACH JJA and EBRAHIM AJA concurring):

[1] This appeal concerns the application of an old common law rule known as the
in duplum rule. It means in general terms that a creditor is not entitled to claim

unpaid interest in excess of the capital outstanding. An extensive discussion of its
historical development is to be found in LTA Construction Bpk v Adminstrateur,
Transvaal 1992 (1) SA 473 (A).

[2] There are in fact two appeals similar in almost all respects which were argued
as one. The one is Gardner (appellant) against Margo (Respondent) (case no
511/09) and the other is Margo (appellant) against Gardner (Respondent) (case no
564/09). Gardner’s appeal was with the leave of this court and Margo’s with leave of
the court a quo (South Gauteng High Court, Johannesburg).

[3] The appeal by Gardner is against the dismissal of his application by
Horwitz AJ. The appeal by Margo is against an order of Gyanda J. Horwitz AJ
concluded that the in duplum rule did not apply in the present instance, whereas
Gyanda J on the same set of facts concluded that the in duplum rule was applicable
and found in favour of Gardner.

[4] On 14 April 1999 Margo served a summons against Gardner (as the first
defendant) and O T R Mining Ltd (as the second defendant). Mlambo J found in
favour of Margo for the payment of the sum of approximately R15 000 000.00.
Gardner appealed against the finding to this court. The appeal succeeded and the
following order was made on 28 March 2006:

‘1.
Against the first defendant, for payment of the amount of R1 461 432 plus interest
thereon at the rate of 15,5% per annum from 1 September 1998 to date of payment.

2.
Against the second defendant, for payment of the amount of R1 461 432 plus interest
at the rate of 15,5% per annum from 1 September 1998 to date of payment, the
second defendant to be liable to make such payment only in the event that, and to
the extent that, the first defendant fails to do so.’

The said judgment is reported as Gardner & another v Margo 2006 (6) SA 33 (SCA).

[5] Pursuant to the SCA judgment Gardner made a payment of the sum of
R1 222 864 on 24 April 2006 and on 23 September 2006 a further R1 800 000. The

total paid at that stage amounted to R3 022 864. Gardner contended that after the
second payment he understood that the two payments were made in full and final
settlement of the capital (although with no proof of this). He was of the view that the
only outstanding item was the question of costs of the proceedings. This contention
was disputed by Margo.

[6] The relevant bills of costs were taxed and the respective attorneys exchanged
a series of letters between them regarding what was still owing by Gardner. The gist
of the correspondence was in respect of the calculation of the interest, as well as the
taxed bills of costs. The parties also attempted to enter into negotiations of how to
settle the issue of costs. A set-off was suggested regarding the payment of costs,
though they failed to resolve the dispute. Margo’s attorneys proposed that the
payment
of
the
outstanding
amount
must
take
place
on
or
before
23 November 2009, failing which a writ of execution would be issued. Gardner’s
attorneys made a counter proposal and advised that if the parties fail to agree they
will be forced to bring an urgent application to suspend the execution of the warrant.
As no settlement had been reached by 27 November 2007, the proposal for payment
to be made by 23 November 2007 lapsed and  a writ of execution was issued.

[7] On 7 December 2007 a writ of execution was sent to Gardner’s attorneys as
well as to the Sheriff for service, claiming the sum of R185 983.00 being the balance
of the interest owing on the judgment debt, and a sum for taxed costs. (The costs
issue is not relevant in this judgment). Gardner launched an urgent application to
have the writ suspended, pending the outcome of an application for a declaratory
order that the SCA judgment had been satisfied, and for the setting aside of the writ.
On 28 February 2008 Horwitz AJ dismissed with costs the application for a
declarator, and subsequently dismissed the application for leave to appeal.

[8] On 3 October 2008 Margo caused a second writ of execution to be issued
alleging that the first one reflected incorrect amounts and was therefore withdrawn.
The second writ reflected the balance of the capital sum of R264 396.06 plus interest
thereon at the rate of 15,5% per annum calculated form 24 September 2006 to 30
September 2008 in the sum of R82 749.02 and a further interest on R264 397.06 at
15,5% per annum calculated from 1 October 2008 to date of payment. Gardner

launched another urgent application to suspend the second writ and later launched
another application to have the aforesaid writ set aside and to declare that he was
not indebted to Margo for any capital sum, interest or costs pursuant to the SCA
judgment. Gyanda J found in favour of Gardner and ordered Margo to pay to
Gardner a sum of R5 615.83 representing the amount by which he found Gardner
had overpaid and also set aside the second writ and declared that Gardner was no
longer indebted to Margo. On 23 September 2009 the High Court granted leave to
appeal to this court.

[9] I may mention that during argument before Gyanda J, counsel for Margo
raised the question whether the issues dealt with in Horwitz AJ’s judgment were not
res judicata as they were between exactly the same parties and in respect of exactly
the same facts. Gyanda J ruled that he could not decide that question due to the fact
that Horwitz AJ’s judgment had yet not been signed. In view of the conclusion I hold
in this matter it will not be necessary to deal with that question for purposes of this
judgment.

[10] Gardner’s submission was that a judgment debt accumulates interest only
until the amount thereof reaches the double of the capital amount outstanding in
terms of the judgment. He relied on Standard Bank of South Africa Ltd v Oneanate
Investments (Pty) Ltd (in liquidation) 1998 (1) SA 811 (SCA) at 827H-I, read with
page 834G-I and Commercial Bank of Zimbabwe Ltd v M M Builders and Suppliers
(Pvy) Ltd & others and three similar cases 1997 (2) SA 285 (ZH) at 303C-E. The
argument failed to have regard to the full import of Oneanate and it is wrong to state
that interest runs only (my underlining) until the amount of interest reaches the
double of the capital amount. The word ‘only’ is in my view, misplaced because in
Oneanate (after referring to the Commercial Bank case) (supra) it was held at 834H-
I:
‘that interest on the amount ordered to be paid may accumulate to the extent of that amount
irrespective of whether it contains an interest element. This would then mean that
(i) the in duplum rule is suspended pendente lite, where the lis is said to begin upon service
of the initiating process, and
(ii) once judgment has been granted, interest may run until it reaches the double of the
capital amount outstanding in terms of the judgment.’

[11] The gist of the passage quoted above is that interest does not run only until
the amount thereof reaches the double of the capital amount outstanding in terms of
the judgment but it also runs pendente lite  because, as a  rule, the in duplum rule is
suspended during the litigation. What appears to be clear in the present matter is
that Gardner failed to accommodate or recognize the suspension of the in duplum
rule during the period when the matter was pending before this court as envisaged in
Oneanate at page 834H-I (supra). Counsel for Gardner argued that the difference
between this appeal and the Oneanate case lies in the cause of action. The cause of
action however makes no difference in the application of the in duplum rule see LTA
Construction Bpk; (supra) Bellingan v Clive Ferreira & Associates CC 1998 (4) SA
382 (W); Meyer v Catwalk Investments 354 (Pty) Ltd 2004 (6) SA 107 (T). ‘The
prohibition on interest in duplum rule is not limited to money-lending transactions but
applies to all contracts arising from a capital sum owed, which is subject to a specific
rate of interest’ (Monica L Vessio ‘A limit on the limit on interest? The in duplum rule
and the public policy backdrop’ (2006) 39 De Jure 25 p 26-27).

[12] It is trite that the in duplum rule forms part of South African law. It is also
axiomatic that the in duplum rule prevents unpaid interest from accruing further, once
it reaches the unpaid capital amount. However, it must be borne in mind that a
creditor is not prevented by the rule from collecting more interest than double the
unpaid capital amount provided that he at no time allows the unpaid arrear interest to
reach the unpaid capital amount. 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. The purpose or basis of the in duplum rule is to
protect borrowers from exploitation by lenders who permit interest to accumulate, but
essentially also to encourage plaintiffs to issue summons and claim payment of the
debt speedily. Delays inherent in litigation cannot be laid at the door of litigants and it
would be unfair to penalize a creditor with the application of the in duplum rule while
proceedings are pending. Compare Titus v Union & SWA Insurance Co Ltd 1980 (2)
SA 701 (Tk SC) 704.

[13] I agree with counsel for Margo that

‘It must be borne in mind that when the SCA order was granted, the double capital would by
then have been reached had the in duplum rule applied throughout the period from
1 September 1998 to 27 March 2006. The interest for the period 1 September 1998 to 27
March 2006 amounted to R1 715 360.81. The interest for this period was clearly more than
double the capital amount.’

[14] Gyanda J found that the in duplum rule was applicable relying on the authority
of Oneanate. However, in my respectful view, the learned judge omitted to deal with
the position pendente lite which makes a huge difference on the application of the
rule. This led to two conflicting judgments in which both relied on one authority
namely the Oneanate case.

[15] It is because of the above reasons that I make the following order:

(1)
In case 511/09

The appeal is dismissed with costs, the appellants are ordered to pay such costs
jointly and severally, the one paying the other to be absolved.

(2)
In case 564/09

(a)
The appeal is upheld with costs; and
(b)
The order of the court a quo is set aside and substituted with the following:

‘The applications are dismissed with costs which costs are to include the ocsts
reserved on 14 October 2008.’

_________________

J SHONGWE

JUDGE OF APPEAL

APPEARANCES:

For Gardner:

Hennie M de Kock

Phlip A Myburgh

Instructed by:

Pierre Wolmarans

Manong Badenhorst Abbot van Tonder

RANDBURG

Naudes

Bloemfontein

For Margo:

Marius van Wyk

Instructed by:

Johan Dreyer

Dreyer & Nieuwoudt

RANDBURG

Symington & De Kock

Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From: The Registrar, Supreme Court of Appeal

Date:
17 September 2010

Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal.

MARGO v GARDNER – Case No 564/09
GARDNER v MARGO – Case No 511/09

The Supreme Court of Appeal upheld the appeal against the order of the
South Gauteng High Court (Case no 511/09) and set aside the order of the
court a quo, however, it dismissed the appeal against the order of the South
Gauteng High Court (Case no 564/09).

Gardner owed Margo a certain amount of money and the SCA in an earlier
judgment (Gardner & another v Margo 2006 (6) SA 33 (SCA)) ordered
Gardner and OTR Mining Ltd to pay Margo a certain amount plus interest
thereon at the rate of 15.5% per annum from 1 September 1998 to date of
payment. The dispute was on whether or not the in duplum rule was
applicable. Two conflicting judgments were delivered by the South Gauteng
High Court on the same set of facts. The SCA found that the in duplum rule

was applicable. In general terms it simply means that a creditor is not entitled
to claim interest in excess of the capital outstanding. The nub of the judgment
of the SCA is that the in duplum rule is suspended if and when proceedings
are pending.