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
>>
2016
>>
[2016] ZAGPPHC 629
|
|
Omar v Omar and Another (11802/2012) [2016] ZAGPPHC 629 (29 July 2016)
IN NORTH GAUTENG HIGH
COURT
[REPUBLIC
OF
SOUTH
AFRI
C
A]
NOT
REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
DATE: 29 JULY 2016
Case No.: 11802/2012
In the matter between:
ZEHIR OMAR
Applicant
and
MORCHENE
OMAR
1
st
Respondent
RABIA NOORDMOHAMED
2
nd
Respondent
JUDGMENT
MNGQIBISA-THUSI, J:
[
1]
The
respondents have instituted proceedings against the
applicant
in which they are seeking,
inter
alia,
that
the applicant return
to them all
files and documents relating to matters which the
applicant
handled for them as their attorney.
[2]
As
a result of the respondents' application ("the main
application"),
the applicant launched these proceedings.
[3]
The
applicant is seeking relief, in terms of Rule 47 of the Rules of
Court, on the following
terms:
3.1
an
order
directing the
respondents
(
applicants in
the
main
proceedings) to furnish
security of costs in the amount of
R
l
00 000.00;
3.2
an order staying the main
application pending payment of
the security for
costs;
3.3
that should the respondents
fail to pay the claimed security for costs, the applicant should be
allowed to supplement
his
papers in the main application and apply for the dismissal
of
the respondents' application;
and
3.4
costs.
[4] The general rule
is that a party to an action or application who
is
domiciled in South Africa cannot be called upon to furnish
security
for costs. The fact that the party against whom a claim is made
to furnish
security for costs appears not have sufficient funds to
meet a
potential cost order is not by itself reason to call upon him or her
to
furnish
security
for
costs.
The
court
in
exercising
its
discretion
whether
or not to
order
a
party
to
an
action
or
application
to
furnish
security
for
costs,
has
to
take
into
account
the
circumstances
of the
case,
equity
and
fairness
between
the
parties
and
the
right
of access
to court as
provided for section 34 of the Constitution. However, if the court
comes to the conclusion that the main proceedings
are
vexatious, it may order the party against whom security for costs
is sought
to furnish such
security.
[5] It is applicant's
contention that the respondents do not own any
immovable property which
is not mortgaged nor do they own any
movable
property sufficient to satisfy any cost order against
them
should their application
fail. The applicant further submitted
that
the respondents'
application is vexatious in that it relates to matters
dating back 10 years
ago. Further that even if the
respondents
succeed in the main application, the debt has prescribed.
The
applicant also raised the financial prejudice he would suffer if
he succeeds
in the main application and the respondents are unable
to pay his
costs.
[6] The respondents
are opposing the application. It is the submitted
on behalf
of the respondents that they do own property which is
not
burdened by a mortgage bond. In his answering affidavit the first
respondent contends that he owns a 20% share in a company
in which
he, the applicant and their other siblings are members. It is the
first
respondent's
contention
that
the
company
owns
a
farm
on
which both
the applicant and the first respondent have built
their
family
homes.
Further
it
is
first
respondent's
contention
that
he
is
a
businessman in the motor industry with sufficient equity to
afford any
costs order granted against him and the second respondent.
[7] Having read the
documents filed of record and heard argument by counsel, I am of the
view that an order compelling the respondents
to furnish security for
costs would have the effect of precluding
the
respondents from proceeding with the main application against
the
applicant. Taking into account the facts in the main application, I
am of the view that the respondents' main application is
not
vexatious and that equity, fairness and the interest of justice
require
that the respondents be allowed to exercise their right to access
court.
[8]In the premises,
the following order is made:
1.
The
application is
dismissed.
2.
Costs
to be costs in the cause.
N. P.
MNGQIBISA-THUSI
Judge of the High
Court
Appearances:
Zehir
Omar Attorneys for Applicant and Saleem Ibrahim Attorneys for
Respondents