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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

(1)    REPORTABLE:       NO

(2)    OF INTEREST TO OTHER JUDGES:      YES/NO

(3)    REVISED

         DATE:     29 DECEMBER 2020

Case Number: 51715/2007

 

KLEINFONTEIN AANDELEBLOK (PTY) LTD	Applicant
and
ANTON JAN ZEEVAART	Respondent

REASONS FOR JUDGMENT

JANSE VAN NIEUWENHUIZEN J

[1]           I granted an order in this matter and indicated that the reasons for my decision will follow later. These are my reasons.

Parties

[2]           The applicant, Kleinfontein Aandeleblok (Pty) Ltd (“Kleinfontein”) is the owner of immovable property outside Pretoria. The property is utilised for residential purposes. The applicant was previously a cooperative.

 

[3]           The respondent, Anton Jan Zeevaart, was a member of the cooperative and had the right of residence on the immovable property.

 

Background

[4]           On 11 August 2007 the respondent’s membership was suspended and his right as a member of the cooperative to occupy a portion of the immovable property was terminated.

 

[5]           The respondent took the decision on review and Kleinfontein filed a counterclaim in the application.

 

[6]           On 3 May 2011 Louw J granted an order in terms of which the value of the respondent’s interest in Kleinfontein had to be determined and paid to the respondent. Once payment was made the respondent had to vacate the property within a certain period of time.

 

[7]           On 29 May 2013 the reasonable compensation payable to the respondent was determined in the amount of R 820 000, 00. For reasons not evident from the papers, Kleinfontein only paid the reasonable compensation to the respondent on 13 November 2017. Kleinfontein did, however, include interest in the amount of R 406 624, 52 in the amount paid to the respondent.

 

[8]           The interest was calculated from 1 June 2014 to 13 November 2017 at the prevailing mora interest rate.

 

[9]           The respondent contended that the interest rate should have been 15% at all relevant times and insisted on a further payment of R 334 641, 00.

 

[10]        The respondent refuses to vacate the property until the interest claimed by him is paid.

 

[11]        The payment of interest is in my view not a prerequisite for Kleinfontein to enforce the eviction order granted by Louw J in his judgment. Paragraph (h) of the order reads as follows:

“(h)    Die eiser word gelas om die Kleinfontein nedersetting te verlaat binne twee maande nadat die vergoedingsbedrag soos hierbo bepaal by ooreenkoms of vasstelling deur die waardeerders of adv Grobler SC, aan hom uitbetaal is;” (own emphasis)

 

[12]     The order does not include, nor does it state that interest should also be paid before the two-month period commences. The only prerequisite is the payment of the “vergoedingsbedrag” (compensation amount).

 

[13]     The interest dispute will, however, have a bearing on any future claims, the respondent might have against Kleinfontein and I deem it prudent to adjudicate the dispute.

 

Issue in dispute

[12]        The parties are ad idem in respect of the legislative framework governing the payment of interest. Section 2A(1) of the Prescribed Rate of Interest Act, 55 of 1975, (“the Act”), pertains to interest on unliquidated debts and reads as follows:

“2A     Interest on unliquidated debts

(1)  Subject to the provisions of this section the amount of every unliquidated debt as determined by a court of law, or an arbitrator or an arbitration tribunal or by agreement between the creditor and the debtor, shall bear interest as contemplated in section 1.”

 

[13]        Section 1(1) provides as follows:

“If a debt bears interest and the rate at which the interest is to be calculated is not governed by any other law or by an agreement or a trade custom or in any other manner, such interest shall be calculated at the rate contemplated in subsection (2)(a) as at the time such interest begins to run, unless a court of law, on the ground of special circumstances relating to that debt, orders otherwise.”

 

[14]     In terms of subsection 2(a) the rate of interest is the repurchase rate as determined from time to time by the South African Reserve Bank plus 3,5 per cent per annum.

 

[14]        Subsection (2)(b) provides that, whenever the repurchase rate is adjusted by the South African Reserve Bank the amended rate of interest must be published in the Government Gazette and in terms of subsection (2)(c) the amended interest rate is effective from the first day of the second month following the month in which the repurchase rate was determined by the South African Reserve Bank.

 

[15]        Kleinfontein maintains that the interest rate prevailing at the time should be utilised in calculating the interest payable. The respondent does not agree and points out that section 1(1) clearly states that the applicable interest rate is the rate “at the time such interest begins to run”.

 

[16]        The aforesaid dispute, however, only needs to be determined once it is established that Louw J ordered interest to be paid.

 

[17]        In this regard the provisions of subsection 2A(5) of the Act is relevant. The subsection reads as follows:

“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 orders as appears just in respect of the payment of interest on an unliquidated debt, the rate at which interest shall accrue and the date from which interest shall run.”

 

[18]        In my view and in the absence of an order ordering Kleinfontein to pay interest on the still to be determined reasonable amount, the rate at which interest shall accrue and the date from which interest shall run, there is no legal obligation on Kleinfontein to pay interest.

 

 

 

 

N. JANSE VAN NIEUWENHUIZEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

DATE HEARD                                                           1 December 2020

JUDGMENT DELIVERED                                      29 December 2019

 

APPEARANCES

Counsel for the Applicant:                          Advocate J. Mollentze

Instructed by:                                              Hurter Spies Ing.

 

On behalf of the Respondent:                      Dr. A.J. Zeevaart

 

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