About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 33
|
|
International Trade Administration Commission and Another v Carte Blanche Marketing CC and Another; In Carte Blanche Marketing CC and Another v International Trade Administration Commission and Others (45241/12) [2019] ZAGPPHC 33 (22 February 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
CASE
NO: 45241/12
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:-
THE
INTERNATIONAL TRADE ADMINISTRATION
COMMISSION
First
Applicant
THE
MINISTER OF TRADE AND INDUSTRY
Second Applicant
and
CARTE
BLANCHE MARKETING CC
First
Respondent
CLEAR
ENTERPRISES (PTY) LTD
Second
Respondent
In
re:-
CARTE
BLANCHE MARKETING CC
First
Applicant
CLEAR
ENTERPRISES (PTY) LTD
Second
Applicant
and
THE
INTERNATIONAL TRADE ADMINISTRATION
COMMISSION
First
Respondent
THE
MINISTER OF TRADE AND INDUSTRY
Second Respondent
THE
MINISTER OF ECONOMIC DEVELOPMENT
Third
Respondent
THE
COMMISSIONER, SOUTH AFRICAN REVENUE
SERVICE
Fourth Respondent
CLOSE
BORDER ROAD TRANSPORT AGENCY
Fifth
Respondent
SOUTH
AFRICAN CUSTOMS UNION
Sixth Respondent
JUDGMENT
SELEKA
AJ:
[1]
The
parties in this matter have a history of litigation against each
other that spans a period described by one of them as longer
than a
decade
[1]
and are still involved
in multiple court proceedings against each other. The court
proceedings were apparently triggered by steps
taken by State
officials in terms of the Customs and Excise Act, 91 of 1964, to
seize and detain certain trucks brought into South
Africa, allegedly
without a permit, on the arrangement between the first and second
respondents in the application before me.
[2]
The present application does not concern
that issue. It is an application for security for costs
in one of the review
applications instituted by the first and second
respondents under the above case number. That review application was
instituted
in 2017 and, shall for convenience, be
referred to as the 2017 application or the
main application.
It is to be distinguished from a review
application instituted earlier, in 2013, by the same respondents
('the 2013 application').
However, it is common
cause between the parties that an amendment has been
introduced, but not formally
effected, to the relief sought in the
2013 application, which amendment is similar, if not the same, as the
relief sought in the
2017 application.
[3]
By reason of the aforesaid amendment the
applicants contend that the 2017 application amounts to a duplication
of proceedings and,
therefore, an abuse of the Court process. For
this and other reasons, that will become apparent below, the
applicants became vexed
by the institution of the 2017 application
and brought the present application for security for costs. They did
so against both
the first and second respondents. However on the eve
of the hearing date, the applicants withdrew the application against
the first
respondent. With that withdrawal, fell away some of the
grounds relied upon for the present application. The application is
now
being pursued only against the second respondent ("Clear
Enterprises").
[4]
The
second respondent is a
peregrinus
from
Botswana and has confirmed, in its answering affidavit, that it is
currently a dormant company and does not own any immovable
property
in South Africa.
[2]
It has left
unaddressed the allegations that it does not conduct business in
Botswana and has not submitted income tax returns
since 2004.
[3]
The second respondent is therefore deemed
to admit these allegations as
correct.
[4]
[5]
have noted that the second respondents
answering affidavit is deficient and unsatisfactory in some
material respects.
For instance, it also
fails to deal with the applicants' allegation that
the 2017 application
is a duplication of the 2013 application. On
this point too, the second respondent must be deemed to admit the
allegations as correct.
[6]
The aforesaid facts are grounds upon
which the applicants rely for the present application. They contend
that from these facts it
is clear that the second respondent will not
be able to meet any cost order against it, if unsuccessful, in the
main application.
[7]
It
is trite that the Court has a discretion whether or not to order
security for costs. This applies even in the case of a
peregrinus
applicant
or plaintiff who does not own immovable property in South Africa.
However, the discretion has to be exercised judicially,
taking into
account all the relevant facts, as well as considerations of equity
and fairness to both parties.
[5]
[8]
At
the end of the exercise of the Court's discretion lies the principle
that where the Court has come to the conclusion that the
peregrinus
who
initiated the court proceedings should not be absolved from
furnishing security for costs, the Court is entitled to protect
an
incola
defendant
to the fullest extent.
[6]
[9]
In opposition to the present
application, the second respondent relies on another consideration,
by reference to a commentary in
Erasmus, that if the defendant
incola
is sufficiently safeguarded in other
ways, the Court will not order security to be given. The commentary
cites two authorities for
this proposition.
[10]
During argument, I asked both counsel
whether they knew what is meant by the expression above, viz.
"sufficiently safeguarded
in other ways", and how it has
been applied in case law. As none of them could provide an immediate
answer, I gave them the
opportunity to submit further heads on the
point. I will return to this point later
below.
[11]
The
Magida
case was relied upon by counsel for
the second respondent to impress upon me to refuse the
application for security for costs,
as was done by the Appellate
Division in
Magida.
[12]
However,
Magida
is materially distinguishable from
the'facts in the present case. In that case, Mr Magida, who was an
incola
of
the Republic of South Africa at the time when he instituted an action
against the Minister of Police, for assault on him by the
police,
suddenly and without his volition, lost that status when
Ciskei was separated from South Africa
on 4 December
1981, to become an independent and sovereign state. Mr
Magida was a resident in a town in Ciskei, but
employed in East
London, before and after Ciskei was separated. His court action
had been instituted and
pursued in the Eastern Cape
Division with legal aid from the Legal Aid Board. Due to the
change of his status, the Minister
brought an application for
security for costs on the ground that Mr Magida had become a
peregrinus.
The
High Court granted the application, only for its decision to be
reversed on appeal.
[13]
In reversing the High Court's decision
and dismissing the application for security for costs, the Appellate
Division took into account
a number of factors, including-
13.1
that the action had
been instituted when Mr Magida was
citizen and
incola
of
South Africa;
13.2
that his loss of status was not due to
his own doing;
13.3
that Mr Magida was still employed in
East London, South Africa, and was therefore economically active
within the Court a
quo' s
jurisdiction;
13.4
that Mr Magida was reliant on legal aid
from the Legal Aid Board and, in his affidavit, had stated that he
was impecunious and not
in a position to furnish security;
13.5
that Mr Magida further stated in his
affidavit that an order for security would effectively destroy his
chance to prosecute the
action against the State;
13.6
that Mr Magida was not a vagabond or
dishonourable person;
13.7
that it was possible to execute
the Court's judgment where Mr Magida was resident in Ciskei.
[14]
Unlike in
Magida,
the second respondent in the present
case is not economically active in South Africa, and not even in
Botswana. It has not disclosed
its financial position, nor given an
indication as to how its litigation is funded. The second respondent
has no connection whatever
with any Court's jurisdiction in South
Africa.
[15]
The second respondent is embroiled in a
multitude of court proceedings against the applicants and other State
organs. Some of those
court proceedings are instituted by the
second respondent itself. Although it is a dormant entity, it does
not claim to be
impecunious and unable to provide security for
costs. Its contention is that the mere fact that it
is a
peregrinus
does
not entitle the applicants to an order for security
for costs. I am therefore unable to perceive of
any reason why
security for costs in respect of the 2017 application will, as
in
Magida,
effectively
destroy the second respondent 's chance of pursuing its rights in
Court. Mr Magida had only one action to pursue.
That is not the case with the second respondent.
[16]
The present application does not relate
to the 2013 application in which the same relief sought in the 2017
application has been
introduced.
[17]
Considerations of fairness and equity do
not, on the facts of the present case, tilt the scales in favour of
the second respondent.
If anything, those considerations cry out for
protection of the applicants' rights against a clearly litigious
peregrinus,
who
is dormant, economically inactive and with unknown financial means.
The chances of the applicants recovering their costs against
the
second respondent , should they be successful in the main
application, are, in my judgment, rather slim.
[18]
The
second respondent alleges that it has immovable property in
Botswana.
[7]
However, the
details of the property have not been disclosed and the allegation
is wholly unsubstantiated. As regards
its contention that the
value of its trucks detained in South Africa far exceed the amount of
security sought by the·applicants,
the contention
is untenable for at least two reasons. Firstly, the value of the
trucks is unknown and, secondly, the applicants
say that it is not
possible to execute against trucks that are in detention for
contravention of the Customs and Excise Act.
[19]
Further on the allegation of immovable property in Botswana, it is
instructive what was said by the Supreme
Court of
Appeal in
Exploitatie-en
Beleggingsmaatschappij v Honig:
[8]
"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."
[9]
[20]
I am persuaded by considerations in this
passage that the mere mention of immovable property abroad is in
itself not an answer to
an application for security for costs.
[21]
Returning to the argument that the Court
will not order security for costs where an
incola
defendant is sufficiently
safeguarded in other ways, the second respondent's counsel submitted
that security for costs was being
sought jointly and severally
against the two respondents and that that is the manner in which
costs will be sought in the
main application if the applicants
are successful. The submission is that the applicants should be able
to recover their costs
in full against one of the respondents, in
particular against the first respondent ("Carte Blanche").
[22]
A number of factors militate against this argument. Firstly, the
first respondent's financial position is unknown and has not
been
disclosed , despite requests from the applicants.
[23]
Secondly, the applicants in the present
application are the respondents in the main application and
have not indicated the
manner in which they will seek costs to be
awarded if the application is dismissed, i.e. whether only jointly or
jointly and severally
the one party paying the other to be
absolved.
[24]
Thirdly , the issue of costs falls
within the Court's discretion and it alone will finally decide how
costs are to be awarded. This
being a matter of discretion, it
does not follow that the Court hearing the main
application will award costs
jointly and severally the one
party paying the other to be absolved, even where the
unsuccessful parties
have made common cause in the same
application.
[25]
I am aware of what was said by the
Appellate Division in
Minister of
Labour v Port Elizabeth Municipality
that:
"A
party is compelled to join all other parties who have a direct
interest in the proceedings and, if one of those other parties
is not
in a financial position to pay
aliquot
share of the cost
awarded, an order simply for costs would result in the successful
party not being able to recover all his taxed
costs. This would be
inequitable in cases where
the
parties condemned to pay costs made common cause with one
another."
[10]
[26]
The Court hearing the main
application may be guided by what was said in
this passage.
And I emphasise, "guided", as I do not
think that the Appellate Division was seeking to lay down a rule of
law that would
erode the Court's discretion (on costs) which is so
firmly entrenched in Rule 10(4) of the Uniform Rules of Court. The
issue is
still to be decided based on considerations of fairness and
equity.
[27]
As regards the two authorities referred
to in the commentary in Erasmus, viz.
Hulbert
& Co
v
Caporu
&
Marriot
(1890) 7 CLJ 261
and
Bovenzer
v Bovenzer
(1898) 15 CLJ 203
, I was
provided (by the second respondent's counsel) with copies of the Cape
Law Journal (vol. VII of 1890 and vol. XV of 1898)
in which the
authorities are referred. The journal only provides summaries under
Digest of Cases. Copies of the judgments
are not
provided.
[28]
The summary on the
Hulbert
case reads:
"An
application made by the defendants to compel the plaintfifs, who
resided in England, to give security for costs for an
action
instituted by them, refused, it appearing that the defendants
admitted their liability for and had tendered part of the
amounts
sued for, which amount was sufficient to cover the costs."
[29]
Regarding
Bovenzer,
the summary reads:
"Action
to have a judgment of the Supreme Court of the South African Republic
for divorce and payment of monthly maintenance
monies declared an
order of this Court. The plea admitting the judgment in
the Transvaal security for costs was
refused the defendant,
although plaintiff was a foreigner, the Court holding that the
liability for future monthly payments
afforded the defendant
sufficient security.."
[30]
There seems to be no hard-and-fast rule
about the consideration of "sufficient safeguards in other
ways". Each matter
turns on its own facts. Factors that
motivated the courts in the two mentioned cases to decide as
they did, do not
feature in the present application.
[31]
In the premises, and for all of the reasons above,I am unable to find
ways by means
of which it can be said that the
applicant's rights to costs in the main
application, if they are successful
are safeguarded, let alone
sufficiently safeguarded
[32]
In view of the manner in which the provisions of Rule 47 are worded,
it is in my view unnecessary
for the applicants to seek a formal
amendment to their notice of motion. Whereas the Court may make an
order for security for costs
to be given, it is the Registrar who
determines the amount and the form in which security should be given.
On the facts, I am persuaded
that the second respondent should not be
absolved from furnishing security for costs.
[33]
In the result I make the following order:
33.1
The second respondent is ordered to
provide security for the applicants' costs in the main application in
the form and amount to
be determined by the Registrar of this Court.
33.2
The second respondent is ordered to pay
the applicants' costs of this application, including costs occasioned
by the employment
of two counsel.
[1]
Second Respondent's AA265/7.
[2]
Page 265/6.
[3]
Page 19/16.2.
[4]
United
Methodist Church of South Africa v Sokufundamala
1989
(4) SA 1055
(0 ) at 1059A.
[5]
Magida
v Minister of Police
1987
(1) SA 1
(A) at 14E and 150.
[6]
Magida
supra
at
14F-G.
[7]
Page 267/9.4.
[8]
2012 (1) SA 247 (SCA).
[9]
Honig
at
para 19
[10]
Minister
of Labour v Port Elizabeth Municipality
1952
(2) SA 522
(A) at 537H.