MEC for Public Works, Roads and Transport v Willie Web Holdings and Others (1020/2014) [2025] ZANWHC 57 (17 March 2025)

IN THE HIGH COURT OF SOUTH AFRICA

NORT WEST DIVISION, MAHIKENG

CASE NO: 1020/2014

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:-

MEC FOR PUBLIC WORKS, ROADS

AND TRANSPORT

Applicant

and

WILLIE WEB HOLDINGS

JV MARANG DISTRIBUTORS (PTY) LTD 1st Respondent

SHERIFF OF THE HIGH COURT, MOLOPO

2nd Respondent

Coram: Mfenyana J

This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for

hand-down is deemed to be 17 March 2025 at 14h00.

ORDER

a. The late filing of the first respondent’s notice in terms of rule 6(5)(d)is condoned.

b. The points of law raised by the first respondent are upheld.

c. The application is dismissed with costs on a scale as between attorney and client.

JUDGMENT

[1] The applicant instituted proceedings against the first respondent, seeking a declaratory order to the effect that the in duplum rule is applicable to the respondent’s claim, and that the first respondent was entitled to levy interest on the capital amounts

pertaining to the judgment granted by Djaje J (as she then was), at the rate of 15.5%.

[2] The applicant seeks a further declaratory order that the warrant of execution / attachment dated 29 November 2021, issued by the first respondent in the amounts of R7 521 246.40 and R1 111 588.16 in respect of case number 1020/2014, constituted the judgment amount and interest in terms of the in duplum rule.

[3] Finally, the applicant seeks an order declaring that the amount of R8 632 834.56 paid by the applicant to the second respondent (the Sheriff) in respect of the warrant of attachment constitutes a full and final discharge of the judgment amount together with interest in terms of the in duplum rule. Costs are requested only in the event of opposition.

[4] The application is opposed by the first respondent. The first respondent also incorporated an application for condonation, ex abudanti cautela, and to the extent it may be found that its notice in terms of rule 6(5)(d) was filed out of time. I set out to deal with aspect before all else.

[5] When the matter served before me on 9 February 2024, I ordered the first respondent to file its supplementary points of law by 12 February 2024. The supplementary points of law were filed on 6 February 2024. This notice was subsequently withdrawn in its entirety and replaced with a new notice in terms of rule 6(5)(d) filed on 4 March 2024. Filed simultaneously with the second notice in terms of rule 6(5)(d) was an application for condonation.

[6] The first respondent avers that the delay was occasioned by the fact that it sought to canvass with the applicant judgments discovered by counsel during the course research on the points of law in a bid to have the matter settled amicably. It is the respondent’s

submission that the applicant’s response was only received on 1 March 2024. That the parties were attempting settlement is echoed in the letter addressed by the applicant to my registrar.

[7] Needless to say, the test for whether condonation should be granted or not is whether the party seeking such condonation has shown good cause. Good cause essentially entails a reasonable explanation for the delay and takes into account related factors including the extent of delay and prospects of success. There can be no naysaying that the explanation tendered by the applicant is not only reasonable but bona fide. The delay is not inordinate. Importantly, the applicant enjoys good prospects of success in the main application. The application

for condonation should therefore succeed.

[8] As to the main application, it is necessary to set out a brief disposition of the facts giving rise thereto. Before doing so, it is worthy to point out that none of the parties take issue with the judgment of the honourable Djaje J (as she then was). The relevant facts emanating from that judgment are simply that on 11 August 2021 the honourable judge granted an order ordering the applicant to make the following payments to the first respondent:

8.1 an amount of R2 730 923.20 plus VAT;

8.2 an amount of R329 700.00 plus VAT;

8.3 an amount of R700 000.00 plus VAT, and

8.4 an amount of R555 794.08 in respect of claim 2.

[9] The total amounts payable by the applicant were R3 760 623.20 and R555 794.08, respectively, in respect of claim 1 and claim 2.

[10] On 9 November 2021 the first respondent issued a writ in the following amounts:

10.1 R2 730 923.20 plus 14 % VAT = R3 113 252.45

10.2 R329 700.00 plus 14 VAT = R375 858.00

10.3 R700 000.00 plus VAT = R798 000.00

10.4 Interest at the rate of 15.5% on the total amount, calculated from 30 June 2009, being the date of claim to date of Writ, capped at R3 760 623.20 in accordance with in duplum rule.

10.5 R555 794.08 – plus interest at the rate of 15.5% calculated from 28 February 2012 being the date of claim to date of Writ, capped at R555 794.08 in accordance with the in duplum rule.

[11] In total, the respondent claimed an amount of R8 632 834.56.

[12] On 29 November 2021 the Sheriff attached the applicant’s bank account at First National Bank, in satisfaction of the Writ and the order of Djaje J. The said amount was paid over to the Sheriff by the applicant’s bankers. The applicant contends that this payment by its bankers was made without the applicant’s approval. This prompted the applicant’s attorneys on 6 April 2022 to address a letter to the first respondent’s attorneys requesting that the

amount in respect of claim 1 was to be deposited by the first respondent’s attorneys in an interest-bearing account pending

finalisation of an appeal filed by the applicant. The letter further recorded that only the amount of R1 111 588.16 in respect of claim 2 was to be paid over to the first respondent. No reasons were provided for this instruction.

[13] Interestingly, the remainder of the applicant’s founding affidavit sets out the law as it applies to declaratory orders and the in duplum rule. Whatever the sentiments expressed therein, the established rule with regard to pleadings is that only facts may be pleaded and not law. As such, no value can be attached to such argument by the deponent on behalf of the applicant.

[14] Of importance is that the deponent asserts that in terms of the in duplum rule, interest ceases to accrue once the sum of the unpaid interest equals the amount of the outstanding capital. Thus, the applicant avers that it has satisfied its indebtedness to the first respondent in the amount of R8 632 834.56. It nonetheless seeks a declaratory order on the basis that the matter is res nova and involves a discrete question of law. Nothing could be further from the truth. Ironically, by its own admission, the applicant cites the decision of the Constitutional Court in Slip Knot.[1] The issues raised by the applicant are not novel issues. It is also not open to the court to give advice to litigants.

[15] The first respondent raised a point of law in terms of rule 6(5)(d) to the effect that the application is bad in law, alternatively that it does not disclose a cause of action. It is further stipulated in the notice that the relief sought by the applicant is incompetent, and finally that the applicant is not entitled to a declaratory order on the facts deposed to in the founding affidavit.

[16] In amplification of the contentions set out in the notice in terms of rule 6(5)(d), the first respondent avers that the in duplum rule is a trite principle in our law. Thus, a litigant cannot approach a court to declare what has been in existence for a period

of over four years, the respondent further contends. Thus, the first respondent submits that the application is a gross abuse of the process of court, which should be visited with a punitive cost order.

[17] Pertaining to the declaratory order sought by the applicant in respect of the interest of 15.5% to be levied on the capital sums, the first respondent avers that the issue has already been determined by Djaje J and is res judicata. That is indeed so. Nothing can be achieved from seeking an order declaring that the law is the law. It is also not the duty of the court to give advisory orders to the parties.

[18] The first respondent further contends that when the first respondent filed its notice of motion, it erroneously omitted the VAT. Thus, when it calculated interest and VAT, it did so on the capital amounts excluding VAT. The present application is therefore based on erroneous figures and calculations, the first respondent further contends. It further contends that the application is also bedevilled by the fact that the order of Djaje J has already made an order in this regard. It is worth noting that the order correctly records that the applicant is liable for the capital amounts plus VAT plus interest.

[19] Lastly, in relation to the final relief sought by the applicant, the first respondent avers that the applicant’s calculation of the in duplum interest is premised on the incorrect capital sums which excluded VAT. Interestingly, but correctly, in my view, the first respondent places reliance on Slip Knot, for the proposition that the in duplum rule permits interest to run anew (at the rate set by the agreement) from the date that the judgment is due and payable. For post-judgment interest, the date on which the judgment is handed down is retained as the date on which the judgment debt is due and payable. It is the first respondent’s contention further that the application does not consider post-judgment interest and is consequently, grossly incompetent.

[20] Indeed the law is settled on this score. The judgment of the Supreme Court of Appeal in MEC: Police, Roads and Transport Free State Provincial Government v Bovicon Consulting Engineers CC and Another[2] as fittingly relied on by the first respondent attests to this; that in terms of the in duplum rule, whilst litigation is pending, post -judgment interest is not disallowed after arrear interest ceased to accrue, when unpaid arrear interest equalled the capital debt. The SCA cited with approval, the decision in Slip Knot. To hold differently would only serve to muddy the waters where such is not warranted.

[21] The remainder of the averments by the first respondent pertains to defects in the notice of motion in that it does not state whose affidavit the applicant would rely on in support of the application. In my view, even if this discrepancy were to be condoned, the challenges facing the applicant are insurmountable for the following reasons:

[21.1] The in duplum rule is a settled principle in our law. It requires no declaratory order.

[21.2] The court (on 11 August 2021) has already pronounced on the amounts the applicant is liable for.

[21.3] Even in light of the calculation error by the first respondent, the order makes it clear that the applicant was liable for the specified capital amount, VAT thereon, and interest at the rate of 15.5%.

[22] The first respondent thus, avers that all that the first respondent needed to prove was that the applicant owes it as little R1000.00. If it succeeded on that, the application should fail.

[23] I do not understand the first respondent’s case to be that the respondent is prohibited from correcting its claim amount to accord with the judgment of the court. To state the obvious, it cannot, as that would fly in the face of the order of Djaje J, (as she then was) which sets out in unambiguous terms that the applicant is liable for payment of the claim amounts with VAT. It logically follows that interest is calculated on those amounts.

[24] As for the applicant’s interpretation of the in duplum rule, all the applicant needs to do is to simply follow the approach laid down in Slip Knot. One would presume that that would not be difficult to do, as the applicant relies on the self-same decision. The only thing is that it ascribes to it, a meaning that is at odds with Slip Knot. It brooks no argument that such interpretation should be rejected outright. The application discloses no cause of action. The first respondent’s points of law should be upheld, and the application dismissed.

Costs

[25] Costs are pre-eminently within the discretion of the court, which discretion must be exercised judiciously. The purpose in awarding costs is to indemnify the successful litigant for his out-of-pocket expenses incurred as a result of the litigation. The first respondent seeks a punitive cost order against the applicant consequent upon the employment of two counsel. The contention is that the application has no basis and amounts to a gross abuse of the process of this court. The first respondent avers that the applicant should have resorted to settlement the first time the points were raised but instead

persisted with the application. Whilst I disagree with the matter was of such a nature as to require the employment of two counsel, I agree with the first respondent that a punitive cost order is warranted.

[26] It is not uncommon for a party to overestimate its case owing to some or other misconception, even misinterpretation, as the applicant did in this case. However, there should come a time, where a party wakes up from its slumber, and see its case for what it is. When that happens, that party has to live with the consequences of its lot. It should either elect to cut its losses or persist at its own peril. The applicant in this case elected to persist with its ill-fated application, albeit reluctantly. The proceedings were instituted with no plausible cause - perhaps a hunch that the first respondent was not entitled to what it claims. As if that was not enough, the applicant failed to provide its expert report on the very calculations it assails, after requesting to do so. No reason is provided for this.

[27] In this regard it is pertinent to point out the following:

[27.1] That when the matter served before me on 9 February 2024, I issued an order setting out specific timeframes when each party was to file, the last of which was 29 March 2024 for the filing of heads of argument by both parties.

[27.2] On 23 April 2024 my registrar addressed a letter to the parties’ representatives alerting them to the fact that the heads of argument had not been received. In response, the first respondent filed its heads of argument on 25 April 2025. Nothing was forthcoming from the applicant.

[27.3] On 29 April 2024 the applicant addressed a letter to my registrar, essentially seeking indulgence to file the heads of argument in the event the parties failed to reach settlement. No timeframes were provided.

[27.4] On 10 September 2024 I issued a directive directing the applicant to file its heads of argument by 25 September 2024 and to index and paginate the court file.

[28] To date the applicant has not filed its heads of argument and has taken no further steps to advance the matter.

[29] The upshot of the aforegoing is that the applicant lost interest in its own cause. There can simply be no reason why the applicant, having, been fully apprised of the judgment in Slip Knot, and the order of Djaje J (as she then was) insisted on a declaratory order for what had already been declared to be the law. There is also no reason why the applicant, once it realised (if it did) that it had misinterpreted the principle, did not withdraw the application. Instead, it elected to string the first respondent along by seeking an extension of the timeframes it had agreed to. Even at that stage, the applicant buried its head in the sand, all the while growing even more disinterested in its own application. The fact of the matter is that from its inception, the application was destined for failure.

Order

[30] In the circumstances, I make the following order:

a. The late filing of the first respondent’s notice in terms of rule 6(5)(d) is condoned.

b. The points of law raised by the first respondent are upheld.

c. The application is dismissed with costs on a scale as between attorney and client.

S MFENYANA

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

For the applicant :

M Masilo instructed by the Office of the State Attorney

mphiri.masilo@gmail.com

NDogo@justice.gov.za

For the first respondent :

C Z Muza assisted by K Pooe

instructed by Kgomo Attorneys

clintmuza@gmail.com

info@kgomoattorneys.co.za

phemelo@kgomoattorneys.co.za

Date reserved

:

10 September 2024

Date of judgment :

17 March 2025

[1] Paulsen and Another v Slip Knot Investments 777 (Pty) Limited [2015] ZACC 5.

[2] (278/2022) [2023] ZASCA 99 (14 June 2023).