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2012
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[2012] ZAGPJHC 136
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Argentarius No 1 (Pty) Ltd v South African Financial Exchange And Others (1214/12) [2012] ZAGPJHC 136 (25 July 2012)
IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO
: 1214/12
DATE
: 25/07/2012
In the matter between
ARGENTARIUS NO 1 (Pty)
Ltd
..................................................
APPLICANT
and
SOUTH AFRICAN FINANCIAL EXCHANGE
AND
OTHER
..............................................................................
RESPONDENTS
J U D G M E N T
WILLIS J
:
[1] For the sake of convenience I shall refer to the applicant in
this application for security for costs as the respondent in
the main
application and I shall refer to the respondents, (in this
application for security for costs), as the applicants in the
main
application. The respondent in the main application has sought an
order for security for costs in terms of rule 47 of the
High Court
rules. The applicants in the main application have sought an order
for the liquidation of the respondent. At root,
the basis of the
dispute can be traced to the purchase of shares in the respondent in
the main application.
[2] The respondent in the main application in this application for
security for costs alleges that the applicants in the main
application are being vexatious,
alternatively
(or in addition
to that allegation) that there is reason to believe that they will be
unable to meet any order for security for
costs that may be made.
[3] I consider it fair to record that I have a distinct sense of
unease in this matter. I think it is also fair to record that,
on
the papers before me, this application may indeed turn out to be a
vexatious one ultimately. Furthermore, I think it is fair
to record
that, on the papers before me, it may indeed ultimately turn out to
be that the applicants in the main application will
be unable to meet
a costs order.
[4] I am, however, unable to find at this stage on the papers before
me that the application is indeed vexatious. I am also unable
to
find that there is reason to believe that the applicants
will
rather than
may
be unable to meet a costs order. I have had
regard to various judgments.
[5] I have had regard to various judgments. I would refer in
particular to the cases of
Zietsman v Electronic Media Network Ltd
and others
2008 (4) SA 1(SCA)
at 4 A-F,
Haitas and others v
Port Wild Props 12 [Pty] Ltd
2011(5) SA 562 (GSJ) paragraph [13],
Exploitatie- en Beleggingsmaatchappij v Honig
2012 (1) SA 247
(SCA),
Vumba Intertrade CC v Geometric Intertrade CC
2001 (2)
SA 1068
(W) and the as yet unreported judgment of Van der Merwe AJ in
Ngwenda Gold [Pty] Ltd v Precious Prospect Trading 80 [Pty] Ltd
[GSJ 2011/31664 dated 14 December 2011].
[6] I think it fair to observe that this question of security for
costs is what is colloquially described as a “hot issue”.
It also would appear that the academics D E van Loggerenberg and J
Malan propose publishing an article in November 2012 (THR):
“Security for costs by local companies: back to 1909 in the
Transvaal or not?”
in which they are critical of a too easy willingness by the courts to
order security for costs.
[7] I think I can summarise the law fairly as follows: it is only
with great reluctance and utmost care that a Court will order
incolae
in South Africa to provide security for costs. Accordingly, I do not
think I can grant the order sought by the respondent in the
main
application but my sense of unease have remains. For this reason I
shall leave the door open for the respondent in the main
application
to come again and to present further facts that may tilt the balance
in its favour. The issue is finely poised and
I am conscious of the
fact that one can easily make an order that could result in an
injustice if one is not careful in this matter.
[8] I should record that the point made the respondent in the main
application that the applicants, (in the main application),
should
provide full and adequate proof of the authority of the applicant’s
attorney to represent them in the proceedings
under this case was ill
founded and accordingly those costs will have to be met by the
respondent (in the main application).
[9] The following is the order of this court:
The application for security for costs is dismissed.
The applicant, (respondent in the main application), may approach
the Court again to reconsider the matter by presenting further
relevant facts before the Court.
The costs of this application are reserved.
The applicants’ (in the main application), costs relating to
the relief sought in prayer 2 of the Notice of Motion dated
5
April 2012 are to be paid by the respondent, (in the main
application).
----------------------------------------
Counsel for the applicant, (respondent in the main application): Adv
M
Graves
SC
Counsel for the respondents (applicants in the main application): Adv
HBP
van Nieuwenhuyzen
SC
Attorneys for the applicants (in the main application): Carina van
Niekerk
Attorneys for the respondent, (in the main application): Ashley
Slabbert Attorneys.
Date of hearing: 25 July 2012
Date of judgment: 25 July 2012.