SCA rectifies the error in Sactwu judgment on the in duplum rule

The SCA has revised its judgment regarding Sactwu’s claim, reducing the awarded amount from R458 million to R300 million, effective March 2026. The SCA in a rectification letter has informed Sactwu and the Independent Media Consortium (IMC) that it has rectified its initial judgment where the SCA awarded an amount of R458 million to Sactwu plus interest from 2023 onwards. This has now been rectified to be R300 million effective March 2026.

From a legal perspective this is an important rectification as the in duplum rule has guided the courts and it is not possible for any legal entity to charge more than the capital amount in interest. Sactwu had loaned a Special Purpose Vehicle (SPV) R150 million in 2013. Sactwu took the SPV (IMC) to the High Court (HC) in the Western Cape in 2023.

Judge O’Sullivan In the High Court of Western Cape ruled in favour of the Independent Media Consortium on the basis that the Sactwu loan was subordinated and that Andre Kriel, the Secretary General of Sactwu had full authority to enter into the subordination agreement. Sactwu then took the judgement on appeal at the SCA to overcome the subordination and authority ruling. The SCA ruled in Sactwu’s favour and surprisingly disregarded the in duplum rule and made the judgement that added to the R150 million would be the arrears interest, taking the amount to R458 million plus interest from 2023 onwards.

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The SCA has now rectified this error and confirmed that the in duplum rule applies as in all similar cases and the IMC consortium amount owing to Sactwu is capped at R300 million. The court record shows that IMC (previously named SIM) was an SPV set up to hold the shares in Independent Media for a consortium which involved Sekunjalo and about 12 broad-based empowerment groupings. Sactwu had approached the consortium to become a shareholder and had initially agreed to invest R200 million for 10% of the SPV.

This was subsequently changed to Sactwu receiving 8% of the SPV and now loaning the consortium a R150 million. Sactwu’s reasoning was at the time that the union had lost R400 million with the fraud involving Trilinear Capital where prominent politicians were implicated in the theft of the funds. ENS the law firm was instructed by Sactwu to change the terms and has now been reported to the Legal Practice Counsel (LPC) as it acted for both Sactwu and the SIM / IMC Consortium.

Lucien Jacobs, CEO of Sekunjalo says that the media deliberately conflates or misrepresents the issues in relation to Sactwu and IMC. Firstly, IMC / SIM has nothing to do with Sekunjalo. It is an SPV which effectively has no assets, and it was set up to acquire shares in Independent Media from the Irish.

Sactwu has wasted the funds of its union members and has enriched the law firm, ENS with no prospects of recovery of a single cent of this investment. In any case, Sactwu should demand that ENS should repay them the money.

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