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[2017] ZAGPJHC 70
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Browns The Diamond Store CC V Van Zyl (717/2015) [2017] ZAGPJHC 70 (3 February 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 717/2015
Not
reportable
Not
of interest to other judges
Not
revised
In
the matter between
BROWNS
THE DIAMOND STORE
CC
APPLICANT
and
STIAAN VAN
ZYL
RESPONDENT
JUDGMENT
KATHREE-SETILOANE
J:
[1]
The respondent instituted an action against the applicant, Browns The
Diamond Store CC (Browns), claiming amongst other things
an upgrade
on a platinum claw set diamond protea solitaire ring, which he had
purchased from Brown’s Menlyn store on 3 April
2013, on the
basis that he had been promised a platinum open petal diamond protea
solitaire ring as an upgrade on the initial ring
purchased.
[2]
It is common cause that the respondent is a South African citizen,
but is domiciled in, and is a resident of, the United Kingdom.
He
does not possess any immovable property in South Africa. Thus, having
reason to believe that the respondent would be unable
to pay its
costs if successful in the action, Browns brought an application in
terms of Rule 47(3) of the Uniform Rules of Court
calling upon the
respondent to furnish security for its costs in the action in the
amount of R150 000. The respondent contests
his liability to
furnish security on the basis that he possesses movable property in
the form of furniture, a BMW F800 GS motor
cycle and riding apparel
which are purportedly of high value and are stored in Storage Unit
[…] Street, Durbanville, Western
Cape. He claims that these
assets are of sufficient value to satisfy any costs order which may
be granted in favour of Browns in
the main action.
[3]
In addition, he says that he has two bank accounts with ABSA Bank in
South Africa with a combined balance of R20 000, which
are
readily available to satisfy any costs order awarded in favour of
Browns. He also claims to have a 33,33 per cent member’s
share,
and a loan account in the amount of R200 000, in A-list storage
company. He contends that these movable assets are cumulatively
of
sufficient value to satisfy any costs order in favour of Browns and
as such constitute a basis on which the court should exercise
its
discretion against ordering him to furnish Browns with security for
its costs in the action. Browns rejects the respondent’s
tender
of these movable assets as adequate security ostensibly because it
has no assurance that they will be available to execute
against, when
the time arrives to do so, as they can be easily sold or moved to the
United Kingdom where the respondent is resident.
[4]
The issue that arises for consideration is whether the possession of
movable property by a peregrine plaintiff in the country
would
constitute sufficient security to satisfy any costs order made in
favour of an incola defendant. In terms of Rule 47
of the
Uniform Rules, a peregrine plaintiff (or applicant) who does not own
unburdened immovable property in the country, may be
ordered to give
security for the costs of his action. The objective of the rule is to
ensure that if the peregrine plaintiff is
unsuccessful, payment of
the incola defendant’s costs is secured.
[5]
An incola defendant does not, however, have a prima facie right to be
furnished with security for costs by a peregrine plaintiff.
Whether
or not the latter should furnish an incola with security for its
costs lies within the discretion of the court. In exercising
its
discretion, the court must have regard to the particular
circumstances of the case as well as considerations of equity and
fairness to both the incola and the peregrine.
[1]
Factors that our courts have taken into account when deciding whether
or not to order a peregrine to provide security are
his impecuniosity
and whether an order compelling him to furnish security would deprive
him of the right to litigate against an
incola; whether he is
economically active within the jurisdiction of the court; and whether
execution of the court’s judgment
is possible in the
jurisdiction in which he resides. None of these factors are, however,
decisive.
[6] Historically,
our courts were predisposed in applications for security for costs
against a peregrine to protect the incola ‘to
the fullest
extent’.
[2]
As such, it found in favour of a peregrine ‘only sparingly and
in exceptional circumstances’.
[3]
The general rule was that unless the peregrine had unburdened
immovable property within the jurisdiction of the court to satisfy
any costs order, security had to be furnished. The Supreme Court of
Appeal in
Shepstone
& Wylie & Others v Geyser NO
[4]
rejected this approach to security for costs applications, and gave
guidance on the proper exercise of the court’s discretion
in
such applications. In so doing, it said this:
‘
In my judgment, this is not how
an application for security should be approached. Because a Court
should not fetter its own discretion
in any manner and particularly
not by adopting an approach which brooks of no departure except in
special circumstances, it must
decide each case upon a consideration
of all the relevant features, without adopting a predisposition
either in favour of or against
granting security … I prefer
the approach in
Keary
Developments Ltd v Tarmac Construction Ltd and Another
[1995] 3 All ER (CA) at 540 A-B where Peter Gibson LJ said:
“
The
court must carry out a balancing exercise. On the one hand it must
weigh the injustice to the plaintiff if prevented from pursuing
a
proper claim by an order for security. Against that, it must weigh
the injustice to the defendant if no security is ordered and
at the
trial the plaintiff’s claim fails and the defendant finds
himself unable to recover from the plaintiff the costs which
have
been incurred by him in his defence of the claim.”
These are probably the ‘considerations
of equity and fairness’ mentioned in
Magida v Minister of
Police
1987 (1) SA 1
(A) at 14D-F in regard to the consideration
of an application for security for costs against a peregrinus, and
should, in
my judgment, also prevail in an application under s 13.’
[7]
This approach was subsequently endorsed by the Constitutional Court
in
Giddey
NO v JC Barnard and Partners
,
[5]
which concerned the correct constitutional approach to a court’s
discretion as whether to require a litigant to furnish security
for
costs. There the Constitutional Court stated as follows in relation
to the balancing exercise:
‘
To do this balancing exercise
correctly, a court needs to be apprised of all the relevant
information. An application for security
will therefore need to show
that there is a probability that the plaintiff company will be unable
to pay costs. The respondent
company, on the other hand, must
establish that the order for costs might well result in it being
unable to pursue the litigation
and should indicate the nature and
importance of the litigation to rebut a suggestion that it may be
vexatious or without prospect
of success. Equipped with this
information, a court will need to balance the interest of the
plaintiff in pursuing the litigation
against the risks to the
defendant of an unrealisable costs order.’
[8]
T
urning to a
consideration of the specific circumstances of this case, the
r
espondent
argues that the various moveable assets which he owns in the country
constitute adequate security that could be executed
against by Browns
should costs be awarded in its favour in the action. In support
of this contention, the respondent relies
on the decision of
Majunga
Food Processes Sarl v South African Dried Fruit Co-operative
Ltd
[6]
where Moosa J in
the Cape Provincial Division held that movable property can be given
as security provided it is tangible,
durable, possesses value and is
negotiable. In this regard, he held that:
‘
Security
for costs is part of the practice and not part of the substantive
law. (
Saker
& Co Ltd v Grainger
(supra at 226-7).) The normal practice, in terms of our common law,
is that security takes the form of a suitable bank, institutional
or
personal guarantee, or other acceptable guarantee. To comply with the
objective of giving security, in my view, it ought to
be tangible and
durable. It ought to possess value and be negotiable. These
attributes are not necessarily exhaustive. There can
be no reason to
exclude movable property as a form of security provided it complies
with the criteria mentioned above. In the Roman
Dutch tradition the
practice was for a pledge (
actio
pigneraticia
)
to be a form of security. Rule 47(5) does not impose any limitation
on the form of security the Registrar of the Court can direct
to be
given.’
[9] It was not
disputed in
Majunga
that movable property can be given as security. The objection was to
mangoes being offered as security due to their nature, value
and
marketability. The court found that the mangoes did not constitute
suitable security because they were inter alia perishable
and would
defeat the very object for which security had to be given.
[7]
In the current matter, Browns disputes that moveable assets can
constitute sufficient security to defeat an application for security
for costs. The ownership of immovable property by a peregrinus is
considered to be a defence to a claim by an incola for security
for
its costs. It is Browns’ contention that this principle has not
been extended to include movable property.
[8]
I do not agree.
[10] My
understanding of the common law, as it has developed through the ages
on the question of security for costs, is that the
presence of
immovable property is not the default position. This means that a
court should not order a peregrine to furnish security
for an
incola’s costs simply because a peregrine does not own
immovable property.
[9]
As indicated, at common law, a peregrine plaintiff may be required to
furnish security in order to ensure that a successful incola
can
recover its costs. The power of the court to order security is
discretionary. In exercising this discretion it must have regard
to
all the circumstances of the case. The non-ownership of immovable
property by a peregrine plaintiff or applicant is but one
factor that
a court must give consideration to – it is by no means
decisive. Other factors that a court must have due
regard to is
whether the peregrine owns other significant movable assets
such as motor vehicles, money, bonds, shares, art,
jewelry, etc.
[11]
Further support for the
principle
that assets, other than immovable property, can defeat an application
for security for costs is to be found in
Schunke
v Taylor and Symonds
[10]
where, as far back as in the 19th century, the court accepted this
principle when it said:
‘
On the same principle this
Court recently, in the case of
Hulbert
& Co v Caporn & Marriott
,
refused to order a foreign plaintiff to give security. There the
plaintiff was not an incola, nor had he any landed property in
the
colony, but as the defendants admitted to be indebted for part of the
amount sued for, and such amount was ample to cover their
costs, it
was held that they were not entitled to any further security. What
then the Court looks to is that the defendant shall
not be left
unprotected when sued by a foreign plaintiff.’
[12] What is clear
from these authorities is that the ownership of certain movable
property may constitute a defence to a claim
for security of costs.
This approach is consistent with the position that foreign courts
have adopted in relation to movable assets.
Closer to home, the
Namibian Supreme Court found as follows in
Northbank
Diamonds
Ltd v FTK Holland BV & Others:
[11]
‘
In its replicating affidavit,
and in answer to the applicants’ setting out of their financial
position, the deponent on behalf
of Northbank stated that although
the applicants did not have to prove that they were solvent, they had
to prove that they were
possessed of sufficient liquid assets to pay
Northbank’s costs if ordered to do so. If this means that the
company must have
some liquid funds ready and available to pay for
such costs then I cannot agree. In my opinion the company must be
able to show
that it has free assets which can easily be liquidated
or in respect of which the necessary funds can be raised to pay an
order
for costs.’
It
follows that free or unburdened assets, whether movable or immovable,
which can readily be liquidated may constitute a basis
for a court to
refuse to order a peregrine to furnish security for the incola
defendant’s costs. The position in neighbouring
Botswana also
allows for moveable assets to be used as suitable alternative
security in applications for security for costs. In
Setaelo
v Etube Engineering Pty Ltd
[12]
the Court remarked as follows:
‘
It
is also certain that the respondent is possessed of such movable
property as will be sufficient in my opinion to satisfy any
costs
order by this court should the applicant succeed in the action.’
[13]
Similarly, in Ontario Canada, a plaintiff is able to resist a motion
for security for costs if it is able to show that it has
sufficient
assets (movable and immovable) in Ontario that would be available to
satisfy a judgment for costs.
[13]
Interestingly
enough in the Caribbean, moveable (and other) assets may be utilised
to defeat an application for security for costs
as well.
[14]
The same applies in the United Kingdom as appears from the matter of
Longstaff
International Ltd v Baker & McKenzie
[15]
where the respondent had ‘paper assets’ in the form of
shares. In this regard in
Nagshineh
v Chaffe
[16]
it
was held that the fact that liquid assets are susceptible to being
moved is not a relevant consideration in the exercise of the
discretion to award security for costs.
[14]
I, accordingly, support the finding of Moosa J in
Majunga
that
there can be no reason to exclude movable property that is tangible,
durable, possesses value and is negotiable as a form of
security but
that these attributes are not exhaustive.
[17]
In my view, there should be no fetter on a court’s discretion
to order security for costs. Central to the proper exercise
of its
discretion is whether the peregrine plaintiff has sufficient or
adequate assets to meet any order as to costs, which is
available for
satisfaction. That enquiry is not limited to the presence of
immovable property but must include an enquiry into
all assets –
including movable assets, both corporeal and incorporeal, if they
exist. The principal concern being that an
incola defendant should
not be left unprotected if ultimately successful in the main action.
[15]
The respondent repeatedly asserts, in relation to the last-mentioned
concern, that the presence of his movable assets
in the country
are of sufficient value to ensure that Browns will not be left
unprotected should a costs order be granted in its
favour. His say-so
does not appease, principally because it is a bald assertion. The
onus is on the respondent to establish that
he has assets of
sufficient value to meet an award of costs, yet fails to provide any
assurance that the movable assets, which
are purportedly in storage
in Cape Town, are in fact of sufficient value to satisfy any such
order. Crucially, in this regard,
he produced neither proof of
ownership nor a valuation attesting to the current value of the
movables.
[16]
In his answering affidavit, he says, ‘I have the keys to the
storage facility with me in the United Kingdom and as a
result a
valuator cannot gain access to the movable assets’. Despite
having a period of approximately a month and a half
from receipt of
Browns’ Rule 47(1) notice to date of filing his answering
affidavit, the respondent took no steps to have
the keys to his
storage facility couriered to South Africa for a valuator to gain
access to the items. As such, the court is unable
to discern the
value of these items for purposes of the exercise its discretion.
That the respondent considers his BMW F800 motorcycle,
riding apparel
and furniture to be of high value, and has attached photographs of
them it to his answering affidavit, is cold comfort
because he fails
to allege that he is the owner of the goods and that they are still
in his possession. He, moreover, neglects
to name and itemise the
various pieces of furniture and riding apparel. Nor does he think it
necessary to provide the court with
details relating to the year in
which his motorcycle was registered, its mileage and its condition.
In the circumstances, I find
it hard to believe that these assets are
of sufficient value to satisfy a costs order in Brown’s favour
or that they are
readily accessible for purposes of execution. A feat
that is made all the more challenging because the keys to the storage
facility
are in the respondent’s possession in the United
Kingdom, thus potentially imposing on Browns the burden of
instructing the
Sheriff to employ the services of a locksmith −
only to find movables of insufficient value to satisfy the
costs order
in its favour.
[17]
The respondent claimed, in his reply to Browns Notice in terms of
Rule 47(1) to have a single bank account with ABSA containing
a
balance of R20 000. However, in his answering affidavit he
states that he has two bank accounts with ABSA; an investment
account
with a balance of R11 119.70 and the former account with a
balance of R4 566.72. The two accounts have a combined
balance
of R15 688.42. This amount is hardly suitable to cover Browns’
costs should a costs order be made in its favour.
In any event,
money in a bank account without a guarantee that such funds will not
be dissipated and will be readily available
to meet a costs order,
would not constitute adequate security. The respondent offers no such
guarantee in his answering affidavit.
Nor does he tender to hand his
funds over to the Registrar for safekeeping pending finalisation of
the action.
[18]
The respondent claims that he has a 33,33 per cent shareholding in a
close corporation called A-list Storage CC with registration
number
2011/080824/23. He says that he has a loan account in the corporation
in the amount of R200 000, which could readily be
attached by way of
a garnishee order to settle any costs order against him. However, the
CIPC report which the respondent has attached
to his answering
affidavit indicates that the corporation was deregistered on 6
February 2014 for failure to file its annual returns.
The financial
statements, which the respondent has attached to his answering
affidavit are for the 2013 financial year. Needless
to say, they do
not assist in accessing the corporation’s current financial
status, since the repayment of the R200 000 loan
to the respondent is
dependent on the availability of funds in the corporation. In the
premises, I am of the view that the respondent
has failed to prove
that he has movable assets of sufficient value in the country to
satisfy an adverse cost order in the action,
thus leaving Browns in a
position where it will be unable to recover its costs in the action,
should the respondents’ claim
against it fail.
[19]
The respondent contends that if the court orders him to provide
Browns with security for its costs in the amount of R150 000,
then he will be precluded from proceeding with the action because he
does not have sufficient funds available to both pay security
for
Browns’ costs and the fees of his legal representatives. He,
however, asserts that Browns will have no difficulty executing
against him in the United Kingdom because it has business operations
there. This brings to mind the pronouncement of Leach JA in
Exploitatie-
en Beleggingsmaatschappij Argonauten 11 BV and Another v Honig
[18]
where he said this:
‘
The
appellants sought to avoid the general rule of practice that a
peregrinus
should provide security for an incola's costs by relying on the
judgment in this court in
Magida
v Minister of Police
,
in which
an impecunious
peregrinus
was
excused from providing security, and making the bald and
unsubstantiated averment that the appellants —
“
.
. . will be unable to furnish security for costs, due to the
(respondent) failing to honour his debts towards them the
(appellants)
are hardly in a position to finance their own costs . .
.”
.
However, the
appellants' case on this issue was ambivalent. While pleading
poverty, on the one hand, they alleged, on the other,
that the
respondent would have no difficulty in recovering a costs order by
suing them in Europe. Of course the appellants cannot
have it both
ways. If their financial status was relevant to the question of
security it was incumbent upon them to take the court
into their
confidence and make sufficient disclosure of their assets and
liabilities to enable the court to make a proper assessment
thereof
in the exercise of its discretion. In the case of the first
appellant, a private company, this is generally done by disclosing
its current balance sheet. This the appellants did not do. In these
circumstances and in the light of the appellants' allegation
that any
costs order would be recoverable by way of litigation abroad, it must
be accepted that the financial status of the appellants
is in itself
no reason to refuse security. This distinguishes this case from the
decision in
Magida
relied upon by the appellants in which the
fact that the
peregrinus
was indigent was a material
consideration taken into account.
As against that,
the fact that the respondent will have to proceed against the
appellants abroad if he obtains a costs order in
his favour, with the
associated uncertainty and inconvenience that would entail —
and it is his undisputed allegation that
it would be substantially
more expensive to do so than litigating in this country — is
one of the fundamental reasons why
a
peregrinus
should provide security.’
[19]
[20]
In seeking to avoid the provision of security for Browns’
costs, the respondent says this:
‘
Whilst I am not what one would
consider to be a “man of straw” I am still an ordinary
person possessing only finite
means and various liabilities.
Provision of the requested security would therefore have the effect
that I will be unable to pursue
the action due to my inability to pay
my representatives fees.’
The
respondent makes this assertion without disclosing any information
relating to his assets and liabilities in the United Kingdom
to
enable the court to make a proper assessment in the exercise of its
discretion. His reticence to adduce evidence of his means
coupled
with the assertion that Browns will have no difficulty executing
against him in the United Kingdom inclines me to conclude
that his
financial status is not a reason to refuse security. If it were, then
the respondent would have made full disclosure.
[21]
As things stand, without the protection of security for its costs in
the action, Browns will have to proceed against the respondent
in the
United Kingdom to recover its costs. But as rightly contended for on
its behalf, seeing as the respondent had elected to
institute his
action in South Africa, it should not be expected of Browns to go
through the trouble and expense of instituting
proceedings in the
United Kingdom in order to recover its costs, should the action fail.
Decrying this approach as backward looking,
the respondent seeks to
persuade the court to consider the question of the enforceability of
the order in the United Kingdom in
the light of the global economy
and the significant advances in relation to communication and travel.
In support of this submission,
the respondent referred the court to
the
decision of
B&W
Industrial Technology (Pty) Ltd & Others v Baroutsos
in
which Marais J held:
[20]
‘
[I]t seems to me that a court
should be slow to conclude that considerations of fairness and equity
favour the granting of security,
particularly in present-day
circumstances. Practice changes with the times (or should do so) and
therefore practice (or the sensible
application thereof) dictated by
circumstances prevailing in long bygone centuries, or in 1937, may
differ radically from practice
(or the sensible application thereof)
in 2005, when intercontinental travel and communication has become
infinitely swifter and
more convenient. In the second half of the
20
th
century, the world shrunk with the advent of the jet airliner and
later with the revolution in methods of communication. Legal
practice
should not stand aloof from such changes but should recognize them
and their impact. As it was put by Goldstone J in
Elscint
(Pty) Ltd v D Mobile Medical Scanners (Pty) Ltd
1986
(4) SA 552
(W) at 557H:
“
Considerations
of fairness and justice and the reality of modern international
commerce and efficient means of travel and communication
militate
against treating foreign defendants who have submitted to the
jurisdiction more harshly than incola defendants
.”’
It
is important to bear in mind that this statement was made by Marais J
in the context of an application by an incola defendant
against a
peregrine plaintiff for security for its costs for the potential
value of its counterclaims in the event that they succeeded.
In
distinguishing this type of application from one in which an incola
defendant requires a peregrine plaintiff to give security
for its
costs, Marais J said this:
[21]
‘
Finally and not without
significance, it should be noted that in
Magida's
case Joubert JA was dealing purely with the question of a peregrinus
being ordered to give security for costs of a claim brought
by him
against an
incola
.
The reasons why a court may exercise a
discretion in favour of ordering security for costs where an
incola
is sued by a
peregrine
plaintiff are too well known and
readily understandable to require restatement. The reasons are based
on a desire, in proper circumstances,
to protect an
incola
.
“Proper circumstances” include general considerations of
equity and fairness to both parties.
The equity and fairness of directing
security for costs where an
incola
is sued by a peregrine
plaintiff is far more readily apparent than the equity and fairness
of requiring a peregrine plaintiff to
give security for the judgment
likely to be obtained against him on a counterclaim by an
incola
.
In the first instance, the claim has been brought by the
peregrinus
;
he has chosen to litigate against the
incola
. In the second
case, the claim for which security is sought is brought by the
incola
and not the
peregrinus
; it is the
incola
who has chosen
to litigate insofar as his claim is concerned. Where the
incola
is a defendant in convention, he is such involuntarily. He has no
choice in the matter. In the case of a counterclaim, the
incola
acts voluntarily and chooses to sue. Having done so, he now turns to
his peregrine opponent and requires that the latter secures
the
incola's
counterclaim.’
Marais
J accordingly concluded as follows:
[22]
‘
I am of the view that, insofar
as a practice existed to permit a court to order security for the
amount of a claim where an
incola
counterclaims against a peregrine plaintiff, it, in present-day
circumstances, should not be followed, save perhaps in the most
exceptional of circumstances. It is not in accordance with modern
commercial needs nor is it just or equitable to impose such a
burden
on
peregrine
plaintiffs who chose to sue their alleged debtors in South African
courts.’
[22]
Mindful of the burden that such an order would impose, Marais J
refused to order the peregrine plaintiff to pay the incola
defendant
security for the full amount of the counterclaim. He found that since
the peregrine plaintiff resided and was domiciled
in ‘Greece, a
civilised country with a civilised legal system, there [was] nothing
to prevent the appellants, given the ease
of travel and of
communication, from suing the respondent in Greece’. The
factors that militated against the court’s
discretion to order
security were that that the appellants chose to sue in South Africa;
that they did so of their own volition
and that the respondent owned
substantial fixed property in Greece and some R500 000 held by
Investec within the jurisdiction of
the court.
[23]
To the contrary, in the current matter, the defendant owns no
significant movable or immovable assets in South Africa and has
failed to disclose what assets he owns in the United Kingdom, making
execution of any costs order abroad more onerous.
[23]
So although in this age of globalisation, suing a peregrine in his
own jurisdiction to recover costs may be less arduous, the
extra
burden of costs and delay in enforcing a judgment abroad is an
obvious reality that cannot be ignored. It, therefore, comes
as no
surprise that as recently as in 2015, the Supreme Court of Appeal in
Exploitatie-en
Beleggingsmaatshappij
Argonauten
11 BV
could
still recognise this to be a primary reason for why a peregrine
plaintiff should provide security. In fact due to the sliding
Rand,
litigation in the United Kingdom has become even more prohibitive.
That said, even if Browns were to bring proceedings in
the United
Kingdom to recover its costs, the respondent’s reticence to
make full disclosure of his assets and liabilities
in the United
Kingdom will preclude, hinder or add to the burden of enforcement
against any such assets that do exist abroad. This,
in my view, is a
further factor that weighs in favour of granting an order for
security for Browns’ costs in the main action.
[24]
It is settled law that in an application for security for costs, the
court is not required in the exercise of its discretion
to consider
the merits or prospects of success of the claim.
[24]
This is, however, not an inflexible rule and a court may do so where,
depending upon the nature of the dispute, it is practicable
or
necessary to do so. One such instance, is where the defendant has
failed to disclose a defence.
[25]
Another would be where a peregrine has been able to demonstrate
impecuniosity or an inability due to lack of funds. In this instance
a court may find it necessary to enquire into the prospects of a
peregrine’s claim in order to ensure that his right to
prosecute the claim is not infringed. In the present case, however,
the respondent has failed to prove that he is unable for financial
reasons to furnish Browns with security for its costs in the action.
In the premises I see no good reason to consider the prospects
of
success of the respondent’s claim. Even if I were to do so,
there is inadequate information before me on the papers.
[25]
Accordingly, on the facts and circumstances of this case, I am
satisfied that it would be just and equitable to order the respondent
to furnish security for Browns costs in the main action. In the
result, I make the following order:
1
The
respondent is ordered to furnish security for the applicant’s
costs of the main action in an amount of R150 000.
2
The main
action is stayed pending compliance by the respondent of the order in
paragraph 1 above.
3
The
respondent is ordered to pay the costs of the application.
________________________________
F
KATHREE-SETILOANE
JUDGE
OF THE GAUTENG LOCAL DIVISION OF THE HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
Counsel
for the Applicant:
Ms Rosalind Stevenson
Instructed
by:
Marie-Lou Bester Inc
Counsel
for the Respondent:
Mr Willem
Bezuidenhout
Instructed
by:
Van Velden Duffey Inc
Judgement
Reserved:
30 October 2016
Date
of Judgement:
3 February 2017
[1]
Magida v Minister of Police
1987 (1) SA 1
(A) at 14E-F.
[2]
Saker & Co Ltd v Grainger
1937 AD 223
at 227.
[3]
Santam Insurance Company Ltd v
Korste
1962 (4) SA 53
(ECD) at 56E. See also:
Fraser
v Lampert
NO
1951 (4) SA
110
(T) at 113-115.
[4]
Shepstone & Wylie & Others
v Geyser NO
1998 (3) SA
1036
(SCA) at 1045I-1046C.
[5]
Giddey NO v JC Barnard and
Partners
[2006] ZACC 13
;
2007 (5) SA 525
(CC) para 8.
[6]
Majunga Food Processes Sarl v
South African Dried Fruit Co-operative Ltd
2000
(2) SA 94
(C) para 8.
[7]
Majunga
paras
9-11.
[8]
Burton v Villeria Diamond
Syndicate Ltd
1905 TS 85
at 87;
Cohn v Weston Email
Industrie Handels AG of Vienna
1926
WLD 20.
[9]
Hogan Lovells
Security
for Costs
Without
Prejudice (October 2015)
.
[10]
Schunke v Taylor and Symonds
(1890-1891) 8 SC 103.
[11]
Northbank Diamonds Ltd v FTK
Holland BV & Others
2003 (1) SA 189
(NmS) at 199H-J.
[12]
Setaelo v Etube Engineering Pty
Ltd
2012 2 BLR 379
HC at
392.
[13]
Chachula v Baillie
2004
CanLII 27934 (ON SC).
[14]
Caribbean Ventures
International Ltd & another v Carosello Establishment &
Others
Claim
No SLUHCV2006/0293, 20 December 2006, Eastern Caribbean Supreme
Court, Saint Lucia para 65
http://www.worldcourts.com/ecsc/eng/decisions/2006.12.20_Caribbean_Ventures_Intl_v_Carosello_Establishment.pdf
(Accessed on 6 February 2017).
[15]
Longstaff
International Ltd v Baker & McKenzie
[2004] EWHC 1852.
[16]
Nagshineh v
Chaffe
[2003] EWHC
2107.
[17]
Majunga
para
8.
[18]
Exploitatie- en
Beleggingsmaatschappij Argonauten 11 BV & Another v Honig
2012 (1) SA 247
(SCA) paras 18-19.
[19]
Footnotes omitted.
[20]
B&W Industrial Technology
(Pty) Ltd & Others v Baroutsos
[2005] ZAGPHC 93
;
2006 (5) SA 135
(W) para 38.
[21]
B & W Industrial Technology
paras 35-38.
[22]
B& W Industrial Technology
para 42.
[23]
B&W Industrial Technology
para 40.
[24]
Exploitatie– en
Beleggingsmaatschappij Argonauten 11 BV
para
20.
[25]
Zietsman v Electronic Media
Network Ltd & Others
2008
(4) SA 1
(SCA) para 21.