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[2016] ZAGPPHC 800
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Chunnett v Roytblat (51541/2013) [2016] ZAGPPHC 800 (6 September 2016)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:51541/2013
DATE:
6/9/2016
In
the matter between:
GORDON
CHUNNETT
….....
Applicant
and
LYUDMILA
ROYTBLAT
…..........
Respondent
and
CASE
NO: 51542/2013
ROGER
MOSSOM
….......
Applicant
and
LYUDMILA
ROYTBLAT
….........
Respondent
JUDGEMENT
MOTHLE
J
A.
Introduction:
1.
This judgment concerns two interlocutory applications for security of
costs, arising out of two separate and identical actions
launched by
the Respondent against the two Applicants.
2.
The applications were heard simultaneously as they raised the same
cause of action, involved the same Respondent and were argued
by the
same counsel on each side. Apart from the different names of the
Applicants and the difference in the case number, the content
of the
notice of motion as well as the affidavits filed by both parties in
each application are the same.
3.
Both parties agreed that the matters should be heard together and
that the judgment in one application would apply to the other.
B.
Background:
4.
Both Applicants each separately instituted action against the
Respondent's company, TransAsia Minerals South Africa (Pty) Ltd
claiming certain amounts due. After the closure of pleadings, the
Applicants filed discovery affidavits in terms of Rule 35 of
the
Uniform Rules of Court. The Respondent in turn instituted separate
actions against the Applicants during September 2013 for
amounts of
R500,000.00 each, alleging that the Applicants had defamed her in
their discovery affidavits.
5.
The Applicants are defending this action and now claim that the
Respondent must make payment of security for costs in terms of
Rule
47 of the Uniform Rules of this Court. The amount requested is
R200,000.00 as security for costs in each action.
C.
The Evidence.
6.
The Respondent is presently residing at Suit [8..], Michael
Angelo Towers Hotel, Sandton. She is a citizen of Australia, and not
of the Republic of South Africa and therefore a
peregrines
of
this Honourable Court.
7.
She is in South Africa conducting business as Chief Executive
Officer of TransAsia Minerals. She admits in her affidavit that she
travels to various countries outside South Africa in the course of
her business and for personal reasons. She has no immovable
property
registered in her name in South Africa.
8.
The Applicant submits that there is yet another case pending
in this division where a similar application will be made. The
Applicant
further submits that there is evidence to show that there
are other cases pending in other Courts, including the Magistrates'
Court,
wherein the Respondent has issued summons against various
people and entities.
D.
The Applicant's contentions:
9.
The Applicant contends that:
9.1
The Respondent is a
peregrines
to this Court and has no
immovable property that can be attached in the event a cost order is
issued against her;
9.2
There is evidence in the various pending cases that due to the
Respondent's frequent travels abroad, the trials had to be postponed.
In each instance she had tendered the costs;
9.3
In South Africa she stays in a hotel and apart from her company's
movable properties such as two motor vehicles and possibly
cash in
the bank, she cannot produce any guarantees that she will be able to
make good of the litigation costs she had already
incurred and those
that she is likely to incur in the pending matters; and
9.4
She is a
business
woman who trades through her company in South Africa and is therefore
would be able to post security for costs.
E.
Respondent's contentions:
10.
The Respondent contends as follows:
10.1
That the amount claimed as security for costs in both matters
and the other matter that is before Court would be in the region of
R600,000.00 which will be unaffordable and therefore amounts to a
denial of access to Court;
10.2
She has two motor vehicles with the combined value of
R775,000.00. The Applicant submits that the motor vehicles the
Respondent
refers to are paid up but registered in the name of the
company and not in her personal name;
10.3
Her attorney has in his trust account R600,000.00 held on her
behalf for the purpose of litigation in these matters. The Respondent
does not explain the purpose of these monies in the trust account,
what they are intended for and whether she intends to have this
amount of R600,000.00 posted or guaranteed as security for costs;
10.4
She further alleges that: "/
have
a
bank
account in
South Africa with sufficient funds."
The Respondent does not attach any bank statements reflecting the
alleged sufficient funds and/or proof of any movables registered
in
her name.
F.
The Law:
11.
Under
common law an incola of the Republic cannot, as a general rule, be
ordered to provide security for costs.
See in this
regard
Witham
v Venables
[1]
and
Van
Zyl v Euodia Trust (Edms) Bpk
[2]
.
12.
The
rationale and general purpose of the common
law
principle relating to payment of security for costs is
to protect
the
lncola,
a
person domiciled or resident in
a permanent
nature in the Republic,
[3]
from
assuming the
risk of the
costs of litigation which may not be recoverable
in the
event the incola is successful in its
defence.
[4]
13.
A
foreigner who
is not
ordinarily
domiciled
or resident
in the Republic,
and
who
institutes
action
or
launches an
application, and does not own unmortgaged immovable property
in the
Republic,
may
be ordered
to provide
security for the costs of the action.
[5]
14.
Rule 47 provides that a party in litigation may demand
security for costs from the other by way of a notice, setting out the
grounds
upon which such security is claimed and the amount demanded.
The Registrar is then empowered to decide what the amount will be in
the event there is no agreement to that effect.
15.
Where, however, the demand for payment of security for costs
is opposed, the matter may then, by way of application be referred to
Court by the party demanding security for costs, in which event, the
action proceedings may have to be stayed pending the payment
of
security for costs. If security is not given within a reasonable
time, the Court is empowered to dismiss any proceedings instituted
by
such party in the event the defaulting party is unable to pay the
order for the payment of security for costs.
16.
Counsel for the Respondent submitted in Court that the
Respondent is an indigent person and as such will not be able to
afford the
amount demanded for security for costs. This is contrary
to what the Respondent states in her opposing affidavit. In
paragraphs
14, 15 and 17 thereof, the Respondent claims that she
conducts business in South Africa and owns sufficient movable
property to
cover the legal costs. She further refers to ownership of
the motor vehicles which, as the Court has already indicated, are
registered
in her company's name. The Respondent also admits that she
conducts frequent travels in and out of South Africa. This Court is
not persuaded that the Respondent is an impecunious or indigent
person who cannot afford security for costs.
17.
The
Respondent through her counsel further contends that in each instance
where she was not present in Court and the matter had
to be
postponed, she tendered payment of the wasted costs. If anything,
this submission confirms the risk of non-payment of costs
on her
part. Her tendency or inclination to tender payment of costs every
time she is not available to attend trial, shall cumulatively
result
in a total amount that will be unaffordable in so far as the costs of
the litigation is concerned. She does not deny the
allegation that
she is a party, either as plaintiff or defendant in a number of
actions instituted and pending in various courts
including the
magistrate courts.
G.
Conclusion:
18.
Having regard to the conspectus of the evidence in these
applications, I am of the view that the Respondent is liable for
payment
of security for costs. She has, on her own version,
demonstrated an ability to pay such costs or guarantee the amounts
requested.
She should therefore be ordered to pay the security for
costs. The amount claimed namely R200,000.00 in each action is, in
the
Court's view, fair and reasonable.
19.
In the premises I make the following order in respect of each
of the two applications before me:
1.
The application succeeds;
2.
The Respondent is ordered to pay an amount of R200,000.00, as
security for costs in each action
alternatively
submit
to the Registrar guarantees in a total amount of R400,000.00 obtained
from a registered financial institution in the Republic
of South
Africa;
3.
The prosecution of her separate actions against the Applicants
is stayed pending compliance with 2 above; and
4.
The Respondent is ordered to pay the costs of this
application.
S
P MOTHLE
Judge
of the High Court
Gauteng
Division
Pretoria
Pretoria
For
the Applicant:
........................
Advocate
Y Van Aardson
Instructed
by:
..............................
Van
Quickelberger
Attorneys
…
................................................
c/o
Wiese & Wiese
Attorneys
…
.................................................
IRS
Law
Chambers
…
..................................................
Arcadia,
…
.........................................................................................,,,,,,,,,,,,,,,,,,,,,,,,,
Pretoria
For
the Respondent:
....................
Advocate T Williams
Instructed
by:
..............................
Mpoyana Ledwaba Inc.
…
.................................................
Nieuw
Muckleneuk
…
..................................................
Pretoria.
[1]
(1828) 1 Menz 291
[2]
1983 (3) SA 394 (T)
[3]
Toumbis v Antoniou
1999 (1) SA 636
(w).
[4]
Witham v Venables supra.
[5]
Silvercraft Helicopters (Switzerland) Ltd v Zonnekus Mansions (Pty)
Ltd
2009 (5) SA 602
(C).