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2024
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[2024] ZAFSHC 259
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Parker Beusekom Partnership v Smith (A159/2023) [2024] ZAFSHC 259 (30 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: A159/2023
In
the matter between:
PARKER
BEUSEKOM PARTNERSHIP
APPELLANT
And
SHAUN
SMITH
RESPONDENT
Neutral
citation:
Coram:
MUSI JP
et
OPPERMAN and DANISO JJ
Heard
:
02 AUGUST 2024
Delivered
:
30 AUGUST 2024
Summary:
Application to adduce further evidence on appeal –
requirements restated. Security for costs from a South African
resident
– may not be demanded only because person resides in
the jurisdiction other than the one in which proceedings instituted.
Mootness – requirements restated.
ORDER
1.
The application to adduce evidence on
appeal is granted with no order as to costs.
2.
The appeal is dismissed with costs.
JUDGMENT
Musi
JP (Opperman and Daniso JJ concurring)
[1]
This
is an appeal against an order of a single judge of this Division, in
which he dismissed an application brought by the appellant
(Parker
Beusekom Partnership (partnership)) against the respondent, Mr Shaun
Smith (Smith). The partnership sought an order that
Smith be ordered
to pay security for its costs. The application was dismissed on 23
January 2023. The appeal is with the leave
of the court
a
quo
.
[1]
[2]
Smith sued the partnership after it cancelled a sale agreement
regarding the sale of an Apollo
Aircraft (Aircraft). It is common
cause that Smith first emigrated to the United States of America and
thereafter to Israel. The
partnership delivered a Rule 47 notice, on
23 February 2022, seeking R500 000 as security for its costs
(the first notice).
[2]
Smith
refused to furnish the security as demanded and nothing came of this
demand. On 19 September 2022 the partnership delivered
a second
demand for security for costs in the same amount as in the previous
notice (second notice). Smith, once again, refused
to furnish
security.
[3]
On 29 September 2022 the partnership launched an application seeking
security for costs in the
amount of R500 000 and that the action
proceedings instituted by Smith be stayed until such security had
been furnished. The
application was opposed. It was common cause that
at the time when security was sought, Smith was not residing in South
Africa
and was, therefore, a
peregrinus
(foreigner).
[4]
The partnership alleged that Smith, being a
peregrinus
, did
not have immovable property in this country; the object of their
contract was in a state of disrepair and was in any event
being
disassembled. The partnership further stated that a certain Mr
Bellingham had offered to purchase the Aircraft for R1 500
000
as Smith previously stated that the Aircraft is airworthy with a
value ranging between R4 200 000 and R5 200 000.
[5]
In dismissing the application, the court
a quo
found that the
partnership was not candid in its founding affidavit since it failed
to disclose that it had served the first notice.
It also did not
disclose why it failed to pursue that notice. It further found that
the second notice was not delivered as soon
as practicable after the
commencement of the proceedings. Additionally, it found that the
offer of R1 500 000 for the Aircraft
exceeded the amount
demanded as security for costs.
[6]
Aggrieved by the court
a
quo
’s
order, the partnership successfully applied for leave to appeal.
Before us, Smith brought an application to adduce evidence
on appeal.
The new evidence related to the fact that Smith is residing at St
Francis Bay since 3 September 2023 with his wife in
a house that she
purchased during May 2023. The transfer of the house was registered
on 13 July 2023. On 31 October 2023 he gave
notice of his intention
to amend his particulars of claim to reflect his current address. The
partnership did not object and on
15 November 2023 the amendment was
effected, in terms of Rule 28(5).
[3]
[7]
The partnership opposed the application to adduce evidence on appeal,
primarily on the ground
that Smith remains a
peregrinus
of
this Court since he resides in the Eastern Cape and not in the Free
State. It further states that he was not candid as he did
not mention
that he was deported from the USA.
[8]
In terms of s 19
(b)
of the Superior Courts Act
[4]
(Act) this Court is empowered to receive further evidence on appeal.
In
Pepkor
Holdings v AJVH
[5]
the legal position was succinctly set out as follows:
‘
.
. . an appellate court does not decide an appeal according to new
circumstances that came into existence after the judgment appealed
against. There may be exceptional circumstances where an appellate
court might be able to take cognizance of subsequent events.
The
power to admit evidence on appeal should be exercised sparingly.
There must be a reasonably sufficient explanation why the
evidence
was not tendered earlier in the proceedings. The evidence “must
be weighty and material and presumably to be believed.’
[6]
[9]
The evidence that Smith wants to adduce obviously relates to a time
after judgment was given in
the court
a quo
. It could not be
adduced at any other time because its relevance only arose after the
judgment was delivered. The evidence sought
to be adduced might
render the matter moot. This is a weighty and material consideration.
The evidence is not disputed and has a ring of truth to it.
[10]
The opposition to the evidence is based on an incorrect legal basis.
The fact that he currently resides in
South Africa since May 2023 is
not disputed. Section 25 of the Act provides:
‘
If
a plaintiff in civil proceedings in a Division resides within the
Republic, but outside the area of jurisdiction of that Division,
he
or she shall not by reason only of that fact be required to give
security for costs in those proceedings’
[11]
It is clear that Smith is residing outside the area of jurisdiction
of this court but within the Republic.
We decided to admit the
evidence with no order as to costs, notwithstanding the opposition.
It will definitely assist this Court
with the inquiry into the
mootness of this appeal. I now turn to the issue of mootness.
[12]
Section 16(2)
(a)
(i) and (ii) of the Act state:
‘
(i)
When at the hearing of an appeal
the issues are of such a nature that the decision sought
will have no
practical effect or result, the appeal may be dismissed on this
ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have no
practical effect or result is to be determined
without reference to any consideration of costs.’
[13]
Courts are loath to determine appeals that would have no practical
effect or result. Judicial resources must
be used sparingly.
Impractical orders on appeal obviously lead to inefficient
utilization of already overstretched judicial resources.
[14]
This principle was underscored by the Constitutional Court in
Normandien
Farms v South African Agency for Promotion of Petroleum Exportation
and Exploitation
[7]
when it pronounced that:
‘
Mootness
is when a matter “no longer presents an existing or live
controversy”. The doctrine is based on the notion
that judicial
resources ought to be utilised efficiently and should not be
dedicated to advisory opinions or abstract propositions
of law, and
that courts should avoid deciding matters that are “abstract,
academic or hypothetical.’
[8]
[15]
An appellate court may, however, entertain appeals even when there
are no live controversies to settle, if
it is in the interests of
justice to do so. The factors to consider in order to determine
whether it is in the interests of justice
to hear a moot matter,
include:
‘
(a)
whether any order which it may make will have some practical effect
either on the parties
or on others;
(b)
the nature and extent of the practical effect that any possible order
might have;
(c)
the importance of the issues;
(d)
the complexity of the issues;
(e)
the fullness or otherwise of the arguments advanced; and
(f)
resolving the disputes
between different courts.’
[9]
[16]
The order sought in this case would not have any practical effect.
The entire basis for the application was
to order Smith to furnish
security for costs because he is a
peregrinus
. When he moved
back to South Africa and decided to reside here permanently, the
foundation of the application crumbled. There is
therefore no basis
upon which this court can order him to furnish security for the
partnership’s costs.
[17]
The partnership argued that should the appeal succeed, Smith may
subsequently apply for the security to be
released. He would then
have to prove that he had become a resident or
incola
.
[10]
The mere stating of this preposition indicates the unnecessary time,
effort and expense that Smith will be put through just to
achieve
what is presently known and accepted. It cannot be in the interest of
justice to put a litigant through such a process.
[18]
It can also not be in the interest of justice to require a resident
of the Republic to furnish security for
costs based on the fact that
at some stage in the past he resided in another country. That would
be the effect if this appeal were
to succeed. The partnership would
achieve, by dint of judicial decree, that which is proscribed by s 25
of the Act. The application
was predicated solely on Smith being a
peregrinus.
[19]
I am convinced that there are no live controversies to settle in this
matter and the interest of justice
militate against determining this
appeal. I now consider the issue of costs.
[20]
The partnership was alerted by the amendment that Smith resides in
the Republic and his full address at St
Francis Bay was disclosed.
Smith also wrote a ‘with prejudice letter’ to the
partnership during February 2024, informing
it that the appeal is
rendered moot by his return. He offered to pay the costs of the
appeal up to that stage but refused to jettison
the costs order made
in his favour by the court a quo. His offer was rejected after a long
delay.
[21]
There are no exceptional circumstances present in this case to
consider costs. In fact, the partnership was forewarned.
It, however,
persisted with this appeal on spurious grounds. There is no reason
why it should not be mulcted in costs. Smith was
successful and the
costs should follow the result.
ORDER
[22]
I therefore make the following order:
1.
The application to adduce evidence on
appeal is granted with no order as to costs.
2.
The appeal is dismissed with costs.
C.J. MUSI JP
I concur.
M.
OPPERMAN J
I
concur.
N.S.
DANISO J
Appearances
For
Plaintiff:
Adv
D.H. Wijnbeek
Instructed
by:
McIntyre
& Van Der Post Attorneys
Bloemfontein
For
Defendant:
Adv
C.D. Pienaar
Instructed
by:
Hendre
Conradie Inc
Bloemfontein
[1]
Leave
to appeal was granted on 6 October 2023.
[2]
(1)
A party entitled and desiring to demand security for costs from
another shall, as soon as practicable after the commencement
of
proceedings, deliver a notice setting forth the grounds upon which
such security is claimed, and the amount demanded.
(2)
If the amount of security only is contested the registrar shall
determine the amount to be given and his decision shall
be final.
(3)
If the party from whom security is demanded contests his liability
to give security or if he fails or refuses to furnish security
in
the amount demanded or the amount fixed by the registrar within ten
days of the demand or the registrar’s decision,
the other
party may apply to court on notice for an order that such security
be given and that the proceedings be stayed until
such order is
complied with.
(4)
The court may, if security be not given within a reasonable time,
dismiss any proceedings instituted or strike out any pleadings
filed
by the party in default, or make such other order as to it may seem
meet.
(5)
Any security for costs shall, unless the court otherwise directs, or
the parties otherwise agree, be given in the form,
amount and
manner directed by the registrar.
(6)
The registrar may, upon the application of the party in whose favour
security is to be provided and on notice to interested
parties,
increase the amount thereof if he is satisfied that the amount
originally furnished is no longer sufficient; and his
decision shall
be final.
[3]
(5)
If no objection is delivered as contemplated in subrule (4), every
party who received notice of the proposed amendment
shall be deemed
to have consented to the amendment and the party who gave notice of
the proposed amendment may, within 10 days
of the expiration of the
period mentioned in subrule (2), effect the amendment as
contemplated in subrule (7).
[4]
Act
10 of 2013.
[5]
Pepcor
Holdings Ltd and Others v AJVH Holdings (Pty) Ltd and Others
[2020]
ZASCA 134;
2021
(5) SA 115 (SCA).
[6]
Ibid
para 49. Footnotes omitted.
[7]
Normandien
Farms (Pty) Limited v South African Agency for Promotion of
Petroleum Exploration and Exploration SOC Limited and Others
[2020]
ZACC 5; 2020 (6) BCLR 748 (CC); 2020 (4) SA 409 (CC).
[8]
Ibid
para
47.
[9]
Ibid
para 50.
[10]
Alexander
v Jokl and Others
1948
(2) SA 269
(WLD) at 274.