oa De Rebus - Interested about the interest in debt?
The in duplum rule revisited : feature
The pronouncements of Madlanga J in the recent Constitutional Court case of Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) got me thinking about the in duplum rule, which is largely what the case was about, but also about what happens if a court can no longer pass judgments on the facts but only on the law? And what if, as in this case, it is not the debtor who is impoverished by the conduct of the debtor, but the creditor? If a court can only consider the law and not the facts, then how does the court distinguish cases from one another and make the most proportionate and reasonable finding - and this despite the clear statement by the presiding judge that: 'In any given case this court has to make a value judgment on whether the point of law is indeed "arguable"' (Paulsen at para 23).
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