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
>>
2014
>>
[2014] ZAGPPHC 29
|
|
Hill v Registrar (38792/2011) [2014] ZAGPPHC 29 (18 February 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 38792/2011
DATE:
18/2/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
HILL, THOMAS
….............................................................................................
Applicant
and
REGISTRAR
....................................................................................................
Respondent
IN RE
:
B TRIEBIGER
(PTY)
LTD
................................................................................
Plaintiff
v
Hill THOMAS
…...............................................................................................
Defendant
JUDGMENT
MALINDI
AJ
INTRODUCTION
[1.] The
Applicant (Defendant in the Summary Judgment Application) filed a
review application in terms of Rule 53 of the Uniform
Rules of Court
under Case No. 38792/11.
[2.] The
application is opposed only by the 2
nd
Respondent. The 1
st
Respondent confirmed his Order in the summary judgment application
and the statement in paragraph 5.1 of the Founding Affidavit
that:
The grounds of
review are that:
2.1.
The Registrar failed to apply his mind to the matter by failing to
consider other forms of security.
2.2.
The Registrar pronounced that only two forms of security were
acceptable, that is, payment of the sum claimed into the Plaintiff’s
attorney’s trust account or by way of furnishing of a bank
guarantee.
2.3.
The Registrar failed to lay any basis to satisfy the “
legal
requirements
” of establishing a practice that only those
two forms of security were acceptable.
[3.] Rule
32(3)(a) provides:
“
(3)
Upon the hearing of an application for summary judgment, the
defendant may-
(a)
give security to the plaintiff to the satisfaction of the registrar
for any judgment including costs which may be given
. ”
[4.] The
Registrar’s exercise of his discretion in this regard has been
conceded by the Applicant.
[5.] In
Cinemark
(Pty) Ltd v Alfetta Tune-Up Centre 1979(4) SA 802 (W) at 803H –
804A
it was said that the Registrar’s task is to determine
the form and quality of the security and that “
once he has
decided that a particular form is satisfactory (or not), it is the
end of the matter
.”
[6.] The
Applicant contends that if the discretion is not exercised judicially
the decision is subject to review. This proposition
is correct.
[7.] In this case
the Registrar heard argument on behalf of the Applicant and the 2
nd
Respondent. He considered the form of security provided by the
Applicant and the 2
nd
Respondent’s submissions as to
its inadequacies as required by Rule 32(3)(a), especially that as the
assets of the trust
were unknown there would be no satisfaction that
any judgment including costs which may be given against the Applicant
would be
met.
[8.] The
Registrar’s decision as to the form and quality of the security
required to avert summary judgment cannot be easily
assailed by
review of his discretion. His decision to reject the form of security
provided by the Applicant can therefore not be
reviewed.
[9.] Regarding
his pronouncement that “
practically, two forms of security
would suffice, being payment of the claimed amount into the trust
account of an attorney or by
way of furnishing of a bank guarantee
,”
the following need to be noted:
9.1.
the
word “
practically
”
means “
to
all intents and purposes
”;
“
for
all practical purposes but not completely
”;
“
almost
”.
“
In
practice
”
means “in reality”- to refer to what is more or most
likely to happen or what is “currently proficient.”
(
www.oxforddictionaries.com
)
9.2.
the Registrar could not have meant the only two forms of security but
the most practically accepted or the more or most likely
form of
security to be satisfactory.
[10.] I am of the
view therefore that this ground of review is baseless. In any event
the Applicant does not contend that another
form of security that he
tendered was rejected merely because it is not one of the two that
the Registrar considers acceptable.
[11.] In the
circumstances, I make the following order:
11.1.
The application is dismissed.
11.2.
The Applicant is to pay the costs on a party-and-party scale.
SIGNED AT
PRETORIA ON THIS DAY OF FEBRUARY 2014.
Malindi,
AJ
Acting
Judge of the High Court of South Africa