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[2015] ZAGPJHC 5
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Mobile Telephone Networks (Pty) Ltd v Appleseed Entertainment; InRe: Appleseed Entertainment v Mobile telephone Networks (Pty) Ltd (23648/11) [2015] ZAGPJHC 5 (29 January 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 23648/11
DATE: 29 JANUARY 2015
In the matter between:
MOBILE TELEPHONE NETWORKS (PTY)
LTD
..............................
Applicant
And
APPLESEED
ENTERTAINMENT
......................................................
Respondent
In re:
APPLESEED
ENTERTAINMENT
............................................................
Plaintiff
And
MOBILE TELEPHONE NETWORKS (PTY)
LTD
............................
Defendant
SUMMARY
Civil proceedings – security for
costs in pending action – respondent (plaintiff in pending
action) ordered by court
to provide security for costs for
applicant’s (defendant in pending action) costs in terms of
Uniform Rule 47(1) –
respondent failing to provide security
amount fixed by Registrar over extended period of time –
applicant launching application
in terms of Rule 47(4) for the
dismissal of respondent’s action – application
succeeding.
J U D G M E N T
MOSHIDI, J:
[1] This is an application brought in
terms of Uniform Rule 47(4) for the dismissal of the action
instituted by the respondent against
the applicant.
[2] The applicant is the defendant,
whist the respondent is the plaintiff in a pending action instituted
under case number 23648/2011
out of this Court. For the sake
convenience, I shall refer to the parties as “the applicant”
and “the respondent”
respectively.
[3] The matter was straightforward
since the respondent did not file opposing papers. This, despite an
opportunity afforded to
the respondent by the court to do so at a
previous hearing.
THE FACTS
[4] These are the facts. During June
2011, the respondent issued summons against the applicant. The
action became defended and
is still pending. In February 2012, the
applicant, believing that the respondent will not be able to satisfy
an adverse costs
order against it in the event of the action failing,
filed and served a notice requiring the respondent to furnish
security in
terms of Rule 47(1). On 10 August 2012, the court
ordered the respondent to furnish security for costs in an amount to
be determined
by the Registrar. The court also ordered that the
respondent’s action be stayed pending the furnishing of
security, and
pending the payment of the taxed bill of costs. The
respondent was also ordered to pay the costs of the application. In
fact,
the Taxing Master on 19 September 2013 taxed the determined
security for costs in the sum of R415 000,00 (“the security
amount”),
to be paid by the respondent. This was to be done
within twenty-one (21) days. This was not done up to the present. A
period
of more than seven (7) months had passed without such payment
being made. Neither was there any undertaking provided by the
respondent
that it will pay the security amount. In addition, there
were several costs orders in interlocutory applications granted
against
the respondent in the pending action which remained unpaid.
The respondent, although filing a notice to oppose the present
application
on 8 May 2014, failed to file an answering affidavit
thereafter. At the hearing of the matter on 30 October 2014, the
respondent
was represented by counsel who merely applied to withdraw
from the matter on behalf of respondent’s instructing
attorneys.
The withdrawal was opposed but granted subsequently.
[5] Rule 47(4) of the Uniform Rules
provides that:
“The court may, if security be
not given within a reasonable time, dismiss any proceedings
instituted or strike out any pleadings
filed by the party in default,
or make such other order as to it may seem meet.”
From the above rule, it is readily
plain that the relief sought by the applicant in the present matter,
although drastic in nature,
is a discretionary matter. In Excelsior
Meubels Bpk v Trans Unie Ontwikkelings
1957 (1) SA 74
(T), at 77D-E,
the Court said:
“In this case it must have been
the intention of the Court, when the provision of security was
ordered, that the respondent
was not to proceed with the action
unless and until it provided security for the applicant’s
costs. The respondent was given
time to find the amount of money,
but as the security was not provided, it is illogical that the
respondent should proceed with
his action and inequitable that by
disregarding the Court’s order he should be able to keep alive
that action which the Court
held he could only prosecute if he
provided security for the applicant’s costs.”
In Wallace NO v Commercial Insurance Co
of SA Ltd
1999 (3) SA 804
(C), it was held that a court will be slow
to dismiss proceedings such as those under discussion unless there
was alternative remedies
available. See also Kini Bay Village
Association v Nelson Mandela Metropolitan Municipality and Others
[2008] ZASCA 66
;
2009 (2) SA 166
(SCA), where it was held, inter alia, that the
decision of the High Court in dismissing an action where there was
failure to provide
security as ordered, could not be faulted.
[6] In the present matter, it was more
than plain that the respondent, as plaintiff in the pending action,
had adopted a more than
lackadaisical attitude in prosecuting its
claim against the applicant. The respondent was afforded more than
adequate opportunity
to provide the ordered security amount. It
chose not to do so over an extended period. It also elected not to
oppose the instant
application. Its counsel was constrained to
withdraw at the hearing of the matter. The applicant will be
prejudiced should the
pending action be kept alive under these
circumstances. The applicant had no alternative remedy to adequately
protect itself in
the event of an ultimate adverse costs order
against the respondent in the pending action.
[7] For all the above reasons, the
conclusion that the applicant had succeeded in making out a case for
the relief claimed in the
notice of motion, became irresistible.
COSTS
[8] I deal briefly with the issue of
costs, which is a discretionary matter. There was no reason advanced
at all why the costs should
not follow the result. As stated above,
counsel for the respondent took no part in the merits of the
application. In the notice
of motion, the applicant claimed costs on
the attorney and client scale only in the event of any opposition.
There was no such
opposition. The costs ought to be on the ordinary
scale.
ORDER
[9] In the result the following order
is made:
1. The pending action instituted by the
respondent against the applicant under case number 23648/2011, is
hereby dismissed with
costs, including any costs previously ordered
or reserved.
D S S MOSHIDI
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR APPLICANT A M MTEMBU
INSTRUCTED BY MASHIANE, MOODLEY AND
MONAMA INC
COUNSEL FOR RESPONDENT WITHDREW
INSTRUCTED BY MAMATHUNTSHA INC
DATE OF HEARING 30 OCTOBER 2014
DATE OF JUDGMENT 29 JANUARY 2015