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[2013] ZAFSHC 8
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Hennie Lambrechts Architects v Bombaneiro Investments (Pty) Ltd, In re: Bombaneiro Investments (Pty) Ltd v Hennie Lambrechts Architects (3032/2012) [2013] ZAFSHC 8; 2013 (2) SA 477 (FB) (14 February 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Application No: 3032/2012
In
the matter between:-
HENNIE
LAMBRECHTS ARCHITECTS
..................................
Applicant
and
BOMBANEIRO
INVESTMENTS (PTY) LTD
........................
Respondent
In
re:
BOMBANEIRO
INVESTMENTS (PTY) LTD
................................
Plaintiff
and
HENNIE
LAMBRECHTS ARCHITECTS
.................................
Defendant
_____________________________________________________
HEARD ON:
11 FEBRUARY 2013
_____________________________________________________
JUDGMENT BY:
THAMAGE, AJ
_____________________________________________________
DELIVERED ON:
14 FEBRUARY 2013
_____________________________________________________
[1] This is an
application for leave to appeal to either the Full Bench of the Free
State High Court or the Supreme Court of Appeal.
[2] Leave to appeal is on
judgment delivered by this court on 15 November 2012 regarding the
provision of security for costs by
the plaintiff being an
incola
company.
[3]
Inter alia
application is based on the following:
3.1 That the court erred
in the consideration of vexatious litigation;
3.2 That the court erred
in not considering that the respondent is a man of straw and litigate
in nominal capacity;
3.3 That the court erred
in not considering the principles laid down in the old section 13 of
the Companies Act.
[4] Respondent is
opposing the application and indicated that the case of
SIEMENS
TELECOMMUNICATIONS v DATAGENICS
2013 (1) SA 65
(GNP) supports
the decision of this court that the
incola
company does not
have to provide security for costs.
[5] Primary issues are
that whether in the absence of section 13 of the Companies Act,
common law should apply and if so to what
extent.
[6] I am of the view that
the courts sitting on application for leave to appeal, should be
careful not to refuse leave to appeal
unless it is a hopeless case.
In the circumstances a different court may, and not will, come to a
different conclusion.
[7] Having the principles
laid down in
SHOPRITE CHECKERS (PTY) LTD v BUMPERS SCHWARMAS CC
AND OTHERS
2003 (5) SA 354
(SCA) in mind, I come to the
conclusion that this matter be referred to the Full Bench of the Free
State High Court.
[8] Consequently the
following order is made:
8.1 Leave to appeal is
granted to the Full Bench of the Free State High Court.
8.2 Costs of this
application be costs in the appeal.
________________
S.J. THAMAGE, AJ
On
behalf of applicant: Adv N. Snellenburg
Instructed
by:
Lovius
Block
BLOEMFONTEIN
On
behalf of respondent: Adv J. Els
Instructed
by:
Neuhoff
Attorneys
BLOEMFONTEIN
/spieterse