About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 72
|
|
Dinos and Another v Agro V.I.M SA and Another (08284/14) [2015] ZAGPJHC 72 (29 January 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NUMBER: 08284/14
DATE: 29 JANUARY 2015
In the matter between:
PANAGIOTOS
DINOS
..........................................................................................
FIRST
APPLICANT
LAMBROS
DINOS
...........................................................................................
SECOND
APPLICANT
And
AGRO V.I.M
SA
.................................................................................................
FIRST
RESPONDENT
MATOU FRANCE VIOHAR
S.A
................................................................
SECOND
RESPONDENT
JUDGMENT
WINDELL J:
[1] The applicants seek an order
directing the first respondent (a perigrinus) to provide security for
costs which it may incur
in the event that they successfully defend
the action instituted against them. The first respondent opposes the
application and
submits that the applicants failed to make out a
proper case entitling them to the order.
[2] The first respondent is a Greek
company that exports various agricultural products to different
countries including South Africa.
It is a well-established and
affluent entity with an annual turnover of €32 000 000 per year.
It does not own any immovable
property or any other assets in South
Africa. The first respondent contends that it will be able to settle
any cost order that
may be granted against it, and that there is
therefore no need to give any security for costs.
[3] As a rule of practice, the merits
of the litigation are not considered at this stage of proceedings
except in cases where it
is alleged that the defence is vexatious.
There is no allegation or indication that the defence is vexatious. I
therefore do not
intend to consider the merits or the alleged lack of
bona fides on the applicants’ part.
[4] The general rule of practice is
that a peregrinus should provide security for an incola’s
costs. See Exploitatie- en Beleggingsmaatschappij
Argonauten 11 BV
and Another v Honig
2012 (1) SA 247
(SCA). This does not mean that an
incola has a right which entitles him as a matter of course to the
furnishing of security for
his costs by a perigrinus. The court has a
discretion in deciding whether or not to direct that security be
furnished.
[5] In the exercise of the court’s
discretion all the relevant factors have to be weighed, having regard
to the particular
circumstances of the case as well as to
considerations of equity and fairness to both the incola and the
peregrinus. Hardship to
the perigrinus and financial ability to
provide security are taken into account, but are not necessarily
decisive. See Silvercraft
Helicopters (Switzerland) Ltd and Another v
Zonnekus Mansions (Pty) Ltd, and Two Other Cases
2009 (5) SA 602
(C)
para [26] at 607.
[5] It is common cause that the
applicants will not be able to recover a costs order in South Africa
and they would have to proceed
against the first respondent in
Greece.
In Exploitatie- en
Beleggingsmaatschappij Argonauten 11 BV and Another v Honig supra,
the court held that the associated uncertainty
and inconvenience that
this would entail is one of the fundamental reasons why a peregrinus
should provide security.
[6] If the peregrinus is impecunious
and alleges that he is not able to furnish security due to his own
impecuniosity, it will be
a material consideration in the exercise of
the court’s discretion in deciding whether to absolve a
perigrinus from furnishing
security for costs. In Magida v Minister
of Police 1987(1) SA 1 (A) an impecunious perigrinus was excused from
providing security.
The court held that no one should be compelled to
furnish security beyond its means and a perigrinus should not, on
account of
his impecuniosity, be deprived of prosecuting his action
against an incola.
[7] The facts of this matter can
clearly be distinguished from the facts in Magida supra. The first
respondent in casu does not
allege that it would not be able to
pursue its action against the applicants or that it will be affected
in any way if it is ordered
to put up security for costs. On the
contrary, it contends that it is well able to give security, but
contests that it is liable
to do so.
[8] I am satisfied that there are no
facts present that justify deviating from the general rule that a
peregrinus should provide
security for an incola’s costs. I was
not persuaded to exercise my discretion in favour of the first
respondent and to absolve
it from furnishing security for costs.
[9] In the result the following order
is made:
1. The first respondent is ordered to
provide security for the costs of the applicants in an amount to be
determined by the Registrar.
2. The first respondent is ordered to
pay the cost of this application.
3. Draft order marked “X”
made an order of court.
L.WINDELL
Judge of the South Gauteng High
Court
Counsel for applicant : Adv. L.
Hollander
Counsel for respondent : Adv. S Mc
Turk
Date of hearing : 27 January 2015
Date of judgment : 29 January 2015