oa Litnet Akademies : 'n Joernaal vir die Geesteswetenskappe, Natuurwetenskappe, Regte en Godsdienswetenskappe - Vonnisbespreking : die toepassing van die gemeenregtelike -reël tydens gedingvoering, grondwetlike proporsionaliteit en die skeiding van magte
2015 5 BCLR 509 (KH) : regte



In 2015 5 BCLR 509 (CC) the constitutional court held that the common-law rule that arrears interest stops accruing when the sum of unpaid interest equals the amount of the outstanding capital, applies during litigation between creditors and debtors. The court overruled the decision in 1998 1 SA 811 (SCA) that the rule does not apply during litigation. In the case both the majority and minority judgments contended that their respective conclusions were "in accordance with constitutional values". The right affected by the suspension of the rule during litigation was the right of debtors to raise defences freely. The majority held that there are alternative ways in which delaying tactics of creditors who raise fictitious defences could be dealt with. The court should also have considered the alternative proposed by Willis JA in 2014 4 SA 253 (SCA) parr. 5-70, namely that a court must retain a discretion either to apply or not to apply the rule during litigation. The contention of Madlanga J that the court was merely rectifying a mistaken reading of the common law in the case and was not changing the common law was justly rejected by a majority in a separate concurring judgment of Moseneke J. However, the idea of Madlanga J that proponents either of developing the common law or of sustaining the position are expressing "personal" opinions, can possibly be linked to the fact that strong opinions expressed in the judgments of what the practical effect of the application or non-application of the rule would be in practice, were not substantiated by arguments based on facts.


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