Section 103(5) of the National Credit Act 34 of 2005 as Inspired by the Common-Law 'in duplum' Rule (1)

Abstract

It is important to keep the common-law in duplum rule in mind and make any distinctions if necessary when analysing and interpreting section 103(5) of the National Credit Act. Cambell states in this regard that the in duplum rule can amplify section 103(5) where it is not in conflict with the National Credit Act. There is the presumption in South African law of interpretation of statutes that a statutory provision does not alter the existing common law more than clearly stated, whether expressly or by necessary implication. The Supreme Court of Appeal in the Nedbank case was requested in main to deal with the interpretation of section 103(5) of the National Credit Act and did not deal in depth with its possible impact on other legal principles underlying the common-law in duplum rule or other provisions of the National Credit Act. These include questions relating to whether the operation of section 103(5) is suspended pendente lite and the effect of a judgment after debt enforcement proceedings on section 103(5) of the National Credit Act. Another question which arises is whether there is a “novation” of a debt when the national consumer tribunal or a court grants a consent order in terms of section 138 read with section 86(8)(a) of the National Credit Act or a court grants a re-arrangement order in terms of section 87(1)(b)(ii) of the National Credit Act. In order to answer these questions it is important to establish the nature and effect of these orders.