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[2025] ZALMPPHC 165
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University of South Africa and Others v Economic Freedom Figure and Others (7861/2023) [2025] ZALMPPHC 165 (8 September 2025)
FLYNOTES:
COSTS – Security –
Incola
–
Unsuccessful
applications – Struck from roll with costs due to lack of
urgency – Incola of Republic generally
not required to
furnish security for costs unless proceedings are vexatious,
reckless, or abusive – Unsuccessful litigation
does not
automatically render proceedings vexatious – Student bodies
must be allowed to challenge university decisions
when they
believe rights are infringed – Right of access to courts
must be jealously guarded – Application dismissed
–
Uniform Rule 47.
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NUMBER: 7861/2023
(1) REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
DATE:
8 September 2025
SIGNATURE:
In
the matter between:
UNIVERSITY
OF SOUTH AFRICA
1
ST
APPLICANT
INDEPENDENT
ELECTORAL COMMISSION
2
ND
APPLICANT
INDEPENDENT
ELECTORAL TRIBUNAL
3
RD
APPLICANT
-and-
ECONOMIC
FREEDOM FIGURE
1
ST
RESPONDENT
ECONOMIC
FREEDOM FIGHTERS SC
2
ND
RESPONDENT
AFRICAN
NATIONAL CONGRESS YOUTH LEAGUE
3
RD
RESPONDENT
UNISA
LAW STUDENTS ASSOCIATION
4
TH
RESPONDENT
Delivered
: 8
September 2025
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by e-mail. The date and
time for hand down of the
judgment is deemed to be
8 September 2025 at 10:00 am.
Date
heard :
4 June 2025
Coram
: Bresler
AJ
JUDGMENT
BRESLER
AJ:
Introduction:
[1]
The Applicants apply for an order in terms whereof the First
Respondents are directed
to provide security for the costs of
specifically two proceedings, as contemplated in Rule 47 of the
Uniform Rules of Court
. Both proceedings were struck from the
roll with costs and are therefore still pending before court. The
Applicants furthermore
apply for these proceedings to be stayed
pending the First Respondent’s compliance with any order
granted by this Court.
[2]
The Applicants require security in the amount of R1,000,000.00 (one
million rand)
from the First Respondent. The application is premised
on the following:
2.1
The First Respondent caused an urgent application to be issued under
Case number 6417/2023
in terms whereof
inter alia
the setting
aside and review of a decision by the First Applicant was sought and
ancillary relief.
2.2
On or about the 1
st
of August 2023 the matter was struck
from the roll with costs due to lack of urgency.
2.3
On or about the 29
th
of August 2023, the First Respondent
caused another application to be issued under the above case number
wherein
inter alia
an order was sought declaring the Electoral
Code of Conduct of the First Applicant inconsistent with the
Electoral Act, Act 73
of 1998 and ancillary relief.
2.4
On the 6
th
of September 2023, the application was likewise
struck from the roll with costs due to lack of urgency.
2.5
In the
interim
, the First Respondent also approached the
Constitutional Court under case number CCT216/2023 in terms whereof
the alleged invalidity
of the first decision (verdict) was once again
addressed. On the 11
th
of August 2023, the Constitutional
Court dismissed the application on the basis that it was not in the
interest of justice to hear
the matter. No order as to costs were
made.
2.6
On the 22
nd
of September 2023, the First Applicant,
through its attorneys, sent a letter to the First Respondent’s
attorneys stating
that they are concerned that the First Respondent
will not be in a position to pay any award for costs granted against
it. This
is premised on the basis that the sole purpose of the First
Respondent is presumably to contest elections. It was also recorded
that the First Respondent’s attorneys are acting ‘
pro
bono / pro amico’.
2.7
The Applicants therefore submit that the applications launched by the
First Respondent is
vexatious and / or amounts to abuse of process.
The First Respondent informed the Applicant that it takes
responsibility for any
cost order granted against it.
2.8
A draft taxation account was presented to the First Respondent. They
raised technical objections
hereto without confirming that they take
responsibility for same.
2.9
Having regard to the conduct of the First Respondent, prolonged
litigation is anticipated.
Costs orders may be granted in favour of
the First Applicant and the First Applicant will consequently be
prejudiced if the First
Respondent is unable to pay same. Injustice
is furthermore pre-empted if no security is ordered.
2.10
The relief sought in the two applications referred to herein above,
is the same as both is aimed at setting
aside the second decision /
verdict on the basis that it is unlawful, unreasonable and
procedurally unfair.
[3]
The First Respondent denied that it should be directed to provide
security. The First
Respondent submits:
3.1
The notice in terms of Rule 47 was delivered solely to frustrate the
First Respondent from
accessing courts.
3.2
The alleged taxation was fatally flawed, and the First Respondent was
not obliged to respond
thereto or to offer payment.
3.3
The First Respondent’s attorneys are not acting
pro bono
.
Many discussions took place in confidence that are irrelevant to the
current proceedings.
3.4
The Applicants do not show a
bona fide
defence to the
proceedings. They are therefore unlikely to succeed with their
opposition in due course.
3.5
The Applicants are clearly trying to shut the doors of justice as
they are claiming an exorbitant
amount far exceeding the actual
potential legal costs that will accrue.
3.6
University Student Bodies should not be barred from challenging
Universities’ decisions.
Universities should be alive to the
fact that students and / or student bodies will take them to court if
they make unjust decisions.
3.7
The First Respondent has a reasonable prospect of success. The first
decision was unilaterally
reviewed and set aside by the First
Applicant in favour of adopting the second decision. The First
Applicant has no right to self-review.
3.8
The two applications before court do not aim to achieve the same
result and
lis pendens
therefore do not apply.
Issues
that require determination:
[4]
This Court is only called upon to determine if the First Respondent
should be directed
to pay security for the anticipated costs of the
Applicants in the amount of R1,000,000.00 (one million rand) as
claimed by the
Applicants.
The
Applicable Legal Principles:
[5]
During the course of argument in Court, the First Respondent raised
the issue that
the deponent noted in the Notice of Motion differs
from the deponent that deposed to the Founding affidavit, rendering
the Founding
affidavit inadmissible and unacceptable.
[6]
In this Court’s view, the reference to the incorrect deponent
has no bearing
on the merits of the matter. As stated by the
Applicants’ counsel, there is no objection against the
authority of the deponent
himself. On this basis, the Court finds
that the Founding affidavit should be considered and the reference of
the incorrect deponent
in the Notice of Motion is irrelevant to the
determination of the matter.
[7]
Rule 47 of the
Uniform Rules of Court
provides for a procedure
whereby one litigant can request security from another for its costs.
The rule deals with the procedure
and not the substantive law. To
determine of a litigant should be ordered to provide security, the
Court must have regard to the
common law and the statutory
provisions.
[8]
Under the common law an
incola
of the Republic cannot,
as a general rule, be called on to give security for costs.
[1]
The mere inability of a plaintiff or applicant as the case may be,
who is an
incola
,
to satisfy a potential costs order against him is insufficient in
itself to justify an order that he furnish security for his
opponent’s costs. Something more is required. The court must be
satisfied that the main action is
vexatious
or reckless
or
amounted to an
abuse
of the process
of
the court.
[2]
[9]
The Applicants case is premised on the submission that the
proceedings launched by
the First Respondent is vexatious and / or
constitutes an abuse of process. To determine if a finding in this
regard can be made,
one must look at how the different courts defined
the terms ‘vexatious’ and ‘abuse of process’.
[10]
In
Fisheries
Development Corporation of SA Ltd v Jorgensen and Another; Fisheries
Development Corporation of SA Ltd v AWJ Investments
(Pty) Ltd and
Others
[3]
the following was said as to the term ‘vexatious’:
'In its legal sense
vexatious means frivolous, improper: instituted without sufficient
ground, to serve solely as an annoyance to
the defendant (Shorter
Oxford English Dictionary). Vexatious proceedings would also no doubt
include proceedings which, although
properly instituted, are
continued with the sole purpose of causing annoyance to the
defendant; abuse connotes a mis-use, an improper
use, a use mala
fide, a use for an ulterior motive.'
[11]
In
African
Farms and Townships Ltd v Cape Town Municipality
[4]
the Court observed:
'An action is
vexatious and an abuse of the process of court inter alia if it is
obviously unsustainable. This must appear as a
certainty, and not
merely on a preponderance of probability. Ravden v Beeten
1935 CPD
269
at p 276; Burnham v Fakheer
1938 NPD 63.'
[12]
It is trite that the rule does not envisage that a detailed
investigation of the merits of the
case should be undertaken. Nor is
it contemplated that there should be a close investigation of the
facts in issue in the action.
As stated in
Zietsman
v Electronic Media Network Ltd and Others
[5]
:
'I am not suggesting
that a court should in an application for security attempt to resolve
the dispute between the parties. Such
a requirement would frustrate
the purpose for which security is sought. The extent to which it is
practicable to make an assessment
of a party's prospects of success
would depend on the nature of the dispute in each case.'
[13]
At this stage it is apposite to note that our courts derive their
power from the
Constitution
, 1996. In section 173 the
Constitution
declares:
'The Constitutional
Court, Supreme Court of Appeal and High Courts have the inherent
power to protect and regulate their own process,
and to develop the
common law, taking into account the interests of justice.'
[14]
As stated by the
Constitutional
Court in South African Broadcasting Corp Ltd v National Director of
Public Prosecutions and Others
[6]
:
'This is an important
provision which recognises both the power of Courts to protect and
regulate their own process as well as their
power to develop the
common law. . . . The power recognised in s 173 is a key tool for
Courts to ensure their own independence
and impartiality. It
recognises that Courts have the inherent power to regulate and
protect their own process. A primary purpose
for the exercise of that
power must be to ensure that proceedings before Courts are fair. It
is therefore fitting that the only
qualification on the exercise of
that power contained in section 173 is that Courts in exercising this
power must take into account
the interests of justice.'
[15]
And further:
'The task of a . . .
Court in determining its own proceedings is an important one. Its
primary constitutional responsibility is
to ensure that the
proceedings before it are fair and it must give content to that
obligation. This obligation has always been
part of our law and is
now constitutionally enshrined as a fundamental right in s 35(3) of
the Constitution. The task of ensuring
that the proceedings are fair
will often require consideration of a range of principled and
practical factors, some of which may
pull in different directions.’
[16]
In
Zietsman
v Electronic Media Network Ltd and Others
[7]
the Supreme Court of Appeal remarked with regards to the provision of
security, the following:
‘
[19]
In my view it would be quite unreasonable to order the appellant, an
incola natural person, to provide
security for an action instituted
by him, at the behest of a defendant who may not even have a defence
worthy of consideration.
The first and second respondents submitted
that, in the light of the fact that the appellant made no allegation
in regard to his
prospects of success either, it should be accepted
that they do have a defence which is not devoid of any merit. There
are two
answers to this submission. First, the onus is on the first
and second respondents as applicants for security to persuade a court
that security should be ordered. Second, not only is a defence not
disclosed in the application, it is not alleged that a defence
has at
any stage been disclosed to the appellant. Therefore, assuming the
first and second respondents have a defence to the appellant's
action, it does not appear from the papers filed that the appellant
is in a position to deal with the merits of the defence.’
[20] The appellant's
counsel conceded that there is reason to fear that the appellant may
eventually not be able to meet an adverse
costs order but then no
reason has been advanced to fear that an adverse costs order may
eventually be made against the appellant.
To require the appellant to
furnish security in these circumstances would place an unjust
impediment on his constitutional right
in terms of s 36 of the
Constitution.’
[17]
Erasmus
[8]
states the following:
‘
An action is
vexatious if it is obviously unsustainable.’
[18]
And further
[9]
:
‘
The term ‘abuse
of process’ connotes that the legal machinery is employed for
some ulterior purpose.’
[19]
In
Phillips
v Botha
[10]
the Supreme Court of Appeal likewise dealt with the definition of
‘abuse of process’ and stated:
‘
The term “abuse
of process”, connotes that the process is employed for some
purpose other than the attainment of the
claim in the action. If the
proceedings are merely a stalking-horse to coerce the defendant in
some way entirely outside the ambit
of a legal claim upon which a
Court is asked to adjudicate, they are regarded as an abuse for this
purpose.’
[20]
None of the aforesaid definitions applies to the Applicants’
case. No case is made out
as to any ulterior motive being displayed
by the First Respondent. It is furthermore not evident that the First
Respondent’s
case is so hopeless that it only serves to
frustrate the Applicants. As correctly submitted by the First
Respondent, student bodies
should be able to litigate if they are of
the view that their rights are potentially infringed. Being
potentially wrong in the
end of the day, does not render proceedings
vexatious.
[21]
In this Court’s view, the Applicants have failed to show that
the proceedings are either
vexatious, or that it constitutes an abuse
of process and the First Respondent should not be obliged to provide
security.
[22]
Although it is of no relevance having found that there is no
obligation to provide security,
this Court wishes to remark on the
amount of security required by the Appellants. In no stretch of
imagination can it be anticipated
that the reasonable legal costs
will accrue to R1,000,000.00 (one million rand). This lends credence
to the submissions made by
the First Respondent that the Applicants
are merely setting the bar so high so as to ensure that the First
Respondent cannot continue
with the case. To merely state that their
access is not restricted because they can provide the security, and
then continue, is
simply inadequate and unacceptable.
[23]
The right to access to court is a right that must be jealously
guarded to ensure judicial oversight
at all material times. If access
to court can be limited, or even barred, subject to exorbitant
amounts being held in security,
it would effectively make justice
only available to the wealthy leaving the poor without recourse. This
cannot be so. To borrow
from the
Zietsman
decision
supra, it ‘
would place an unjust impediment on his
constitutional right in terms of s 36 of the Constitution.’
[24]
Having said the aforesaid, it is evident that the application in
terms of Rule 47 must fail in
the interests of justice.
Costs:
[25]
The Court retains a discretion to make a cost order that is just and
equitable in the circumstances.
The First Respondent is substantially
successful in the opposition of the application – this does not
automatically entitle
it to its costs.
[26]
A final determination of the merits of the main application may lead
to new facts being placed
before Court that may tip the proverbial
scales of justice in either party’s favour. In applications
like the current one
before Court, the Court may thus order the costs
to be costs in the cause notwithstanding the Applicants being
unsuccessful.
[27]
In this Court’s view, and especially in lieu of the nature of
the main proceedings forming
the
crux
of the claim for
security, costs should therefore be in the cause.
Order:
[28]
In the result the following order is made
:
28.1
The Application in terms of Rule 47 is dismissed;
28.2
Costs are costs in the cause.
M
BRESLER AJ
ACTING
JUDGE OF THE HIGH COURT,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
FOR
THE APPLICANTS :
Adv. K Mokwena
INSTRUCTED
BY
:
Mahowa
Inc Polokwane
mc3@minc.me /
info@minc.me
FOR
THE RESPONDENTS: Adv.
INSTRUCTED
BY
:
Moitsi
and Associates Inc
Polokwane
moitseassociates@gmail.com
[1]
Liquidator,
Salisbury Meat Market Ltd v Perelson
1924
WLD 104
at 107;
Brollomer
Tin Exploration Co Ltd v Kameel Tin Proprietary Co Ltd
1928 TPD 600
at 601
[2]
Boost
Sports Africa (Pty) Ltd v South Africa Breweries (Pty) Ltd
2015 (5) SA 38
(SCA) at
50C–I
[3]
1997 (3) SA 1331
(W) at 1339 E – F
[4]
1963 (2) SA 555
(A) at 565D – E
[5]
2008 (4) SA 1
(SCA) at para 21
[6]
[2006] ZACC 15
;
2007 (1) SA 523
(CC)
[7]
2008 (4) SA 1 (SCA)
[8]
DE van Loggerenberg, Erasmus: Superior Court Practice, 3
rd
Edition, Volume 1 on
page Rule 47-6
[9]
DE van Loggerenberg, Erasmus: Superior Court Practice, 3
rd
Edition, Volume 1 on
page Rule 47-6
[10]
[1998] ZASCA 105
;
1999 (2) SA 555
(SCA) at 565E–F.