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[2008] ZAWCHC 197
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Devereux Marine CC v Classic Sailing Adventures (Pty) Ltd (AC38/2006) [2008] ZAWCHC 197 (15 May 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
AC38/2006
DATE
:
15
MAY 2008
In
the matter between:
DEVEREUX
MARINE CC
Applicant
and
CLASSIC
SAILING ADVENTURES (PTY) LTD
Respondent
JUDGMENT
CLEAVER.
J
:
[1]
On the eve of the trial
r
that is the day before the trial commenced, the applicant filed an
application for the respondent to provide security for the
applicant's costs in the trial in an amount of R350 000. The figure
of R350 000 stems from an offer which had been made on behalf
of the
respondent, in December of last year, to provide security in that
amount.
[2]
The application was opposed by the respondent, basically on two
grounds; the lateness of the application and the lack of compliance
with Rule 6 of the Rules of Court and secondly, the agreement upon
which the applicant relied in its founding affidavit that
the
respondent would provide security in the sum of R350 000 was
disputed.
[3]
The application has its genesis in the filing of a notice in terms
of Rule 47(3) by the applicant on 4 December last. That
notice was
brought in terms of Rule 47 and/or section 13 of the Companies Act
and/or section 5(2)(b) of the Admiralty Jurisdiction
Regulation Act,
the trial being heard by me.
[4]
The application is not a model of clarity. Its main thrust is the
alleged agreement which existed for the respondent to provide
security in the sum of R350 000 but the deponent to the founding
affidavit does refer to the notice in terms of Rule 47 and does
refer to correspondence in which the applicant's attorney alleges
that the respondent is a company without any assets. The notice
in
terms of Rule 47 contains the following averments:
That
the respondent is a private limited company.
Is
believed to have been a one ship-owning company whose one ship has
sunk.
Has
no known assets.
Appears
not to be trading.
As
such does not appear to be earning any income.
By
the time litigation in this matter is resolved may well have ceased
to exist or be wound up and/or
There
is reason to believe, considering the aforesaid circumstances, to
be unable to pay the costs of the applicant in the event
of the
applicant (third defendant in the triaf) being successful in its
defence.
[5]
It seems to me that
r
as was submitted by counsel for the applicant, that I must weigh up
the lateness of the application and its formal defects on
the one
side, and the prejudice which the applicant may suffer if the
application is not granted, on the other.
[6]
In my view, there are three important aspects which must also be
taken into account. Firstly, the fact that security has been
put up
by the respondent for the costs of the two other defendants in the
action. Secondly, that in December of last year the
respondent
offered to provide security in the sum of R350 000. Thirdly, the
respondent has not dealt with any of the averments
set forth in the
Rule 47 notice.
[7]
I have come to the conclusion that this is a case where I should
exercise my discretion in favour of the applicant. But for
the
lateness of the application and in the absence of the respondent
dealing with the averments in the notice and in the correspondence,
the applicant would have succeeded.
[8]
As far as the costs are concerned, my view is that even though the
respondent has not been successful in resisting the application,
the
lateness of the application is of such an order that the respondent
should not have to bear the applicant's costs. It was
suggested by
counsel for the applicant that I should refer the matter to the
Taxing Master for a determination of the amount
of security. ) do
not consider that that would be appropriate. The applicant itself
sought an order for security in the sum of
R350 000 and as at the
time of the filing of the application that was the figure which the
applicant wanted.
[9]
In
the
circumstances
I
grant
the following order:
1. The
respondent, Classic Sailing Adventures (Pty) Ltd, is directed to
furnish the applicant, Devereux Marine CC, with security
for the
applicant's costs in the action in an amount of R350 000 in a form
acceptable to the applicant,
2. This
security is to be provided by 23 May 2008.
3.
Each party is to pay its own costs.
CLEAVER, J