A short discussion on the effects of the in duplum rule upon commencement of litigation and after judgment : a view both 'inside' and 'outside' the National Credit Act

Abstract

It has repeatedly been confirmed by the courts that the in duplum rule forms part of South African law, and more recently section 103(5) of the National Credit Act 34 of 2005 (hereinafter "the Act") has concretized the rule into statutory form (LTA Construction Bpk v Administrateur, Transvaal 1992 1 SA 473 A; Union Government v Jordaan's Executor 1916 TPD 411; Van Coppenhagen v Van Coppenhagen 1947 1 SA 576 (T); Stroebel v Stroebel 1973 2 SA 137 (T); Absa Bank v Leech 2001 All SA 55; cf Vessio The Effects of the In Duplum Rule and Clause 103(5) of the National Credit Bill 2005 on Interest (LLM Dissertation, University of Pretoria (2006), for a detailed discussion of the rule, its history and application); and for a summary of the rule in its statutory form see Kelly-Louw "Better Consumer Protection under the Statutory in duplum Rule" 2007 19 SA Merc LJ 337). This note examines the effects of the in duplum rule once the litigation process has been initiated by the creditor and the implications of the rule after judgment is granted against the debtor.