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[2023] ZAFSHC 382
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Smith v Parker Beusekom Partnership - Application for Leave to Appeal (773/2021) [2023] ZAFSHC 382 (6 October 2023)
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personal/private details of parties or witnesses have been
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: 773/2021
Reportable: NO
Of Interest to other
Judges: NO
Circulate to Magistrates:
NO
In
the matter between:
SHAUN
SMITH
Applicant
and
PARKER
BEUSEKOM PARTNERSHIP
Respondent
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
06
OCTOBER 2023
APPLICATION FOR LEAVE
TO APPEAL
[1]
The application for leave to appeal is based on various grounds. It
is, in the main, directed
towards paragraph 8 of the judgment where I
found, amongst others, that the applicant had not made out a case
against the respondent
for the furnishing of security for costs.
[2]
On 14 June 2022 the respondent, as the plaintiff in the action,
amended his particulars of claim
by substituting his South African
address with an address at 4[…] Ha’Dolev, section 3,
Caesarea 3[…] Israel.
On 29 September 2022, the applicant
filed its notice of demand for security for costs in terms of Rule
47. The first notice in
terms of this Rule was delivered on 23
February 2022.
[3]
The applicant’s contention in the grounds of appeal is that the
court formed the view that
the applicant failed to meaningfully deal
with the first notice, instead of finding that the respondent’s
situation changed
at /or about the issuing of the first notice with
the applicant being brought under the impression that the respondent
resided
in Plettenberg bay. The court failed to find that the
situation of both the applicant and the respondent, with regard to
the second
notice for security, was different from that underlying
the first notice.
[4]
The court therefore failed to consider that the respondent’s
status changed from that of
an
incola
to
peregrinus
when he emigrated to Israel and that the change took place during the
litigation. The second notice demanding security for costs
was issued
as soon as the plaintiff amended his particulars of claim recording
the fact of his residence in Israel. Having considered
the case law,
it is obvious that the courts are amenable to granting relief for
more extended periods than
in casu
. Consequently, I am of the
view that in these circumstances, another court would come to a
different conclusion.
[5]
I therefore make the following order:
Order:
1.
The application for leave to appeal to the full
bench of this court is granted.
2.
Costs will be costs in the appeal.
MHLAMBI, J
On
behalf of the applicant:
Adv.
J Els
Instructed
by:
McIntyre
Van der Post
12
Barnes Street
Westdene
Bloemfontein
On
behalf of the respondent:
Adv.
CD Pienaar
Instructed
by:
Hendre
Conradie INC
119
President Reitz Ave
Westdene
BLOEMFONTEIN