GAR Motors (Pty) Ltd t/a JB Toerusting and Another v United Apostolic Church and Faith Healing Ministries (219/2022) [2026] ZANCHC 2 (9 January 2026)

60 Reportability

Civil Procedure

Brief Summary

Security for costs — Applicants, incola, sought security from peregrinus respondent — Court exercises discretion based on fairness and equity — Respondent's late filing of answering affidavit condoned — Application for security for costs dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerned an interlocutory application brought in the High Court (Northern Cape Division, Kimberley) in terms of Rule 47(3) of the Uniform Rules of Court for an order compelling the furnishing of security for costs, together with a related application for condonation arising from the late filing of the respondent’s answering affidavit in the Rule 47(3) proceedings.

The applicants were GAR Motors (Pty) Ltd t/a JB Toerusting and Jaen Burger, cited in the main action as the first and second defendants respectively. The respondent was United Apostolic Church and Faith Healing Ministries, cited in the main action as the plaintiff. The court adopted the convenience of referring to the parties as “plaintiff” and “defendants” (collectively).

Procedurally, the plaintiff had instituted an action for contractual and delictual damages, and the defendants delivered a plea together with a Rule 47(1) notice demanding security for costs. When the plaintiff did not furnish security, the defendants launched a Rule 47(3) application to compel security and to stay the action pending compliance. The plaintiff opposed the application, but filed its answering affidavit late, prompting the preliminary issue of whether the late affidavit should be condoned and admitted.

The general subject-matter of the dispute was whether a peregrinus plaintiff (a foreign-based litigant) should be compelled to provide security for costs to incola defendants in circumstances where the plaintiff alleged a genuine claim and the defendants remained in possession of the paid purchase price for goods allegedly never delivered.

2. Material Facts

The plaintiff was a voluntary incorporated association described as a registered faith-based organisation with an address in Zimbabwe. The first defendant was a South African private company, and the second defendant was a South African businessman. The plaintiff’s status as a peregrinus of the court (being based in Zimbabwe) was not disputed in the security proceedings.

In the main action, summons was served on the defendants on 28 February 2022. The plaintiff’s principal claim was for repayment of the purchase price of a grader in the amount of R333 625.00, alleged to have been paid in full in October 2016, but where delivery of the grader allegedly never occurred. The plaintiff also claimed delictual damages for loss of income in the amount of USD 1 747 200.00. In the alternative, the plaintiff sought restitution of R333 625.00 and damages of USD 1 747 200.00, framed as arising from the alleged failure by the second defendant to fulfil fiduciary duties under the Companies Act 71 of 2008.

The defendants delivered their plea on 29 March 2022, together with a Rule 47(1) notice demanding security for costs. The plaintiff continued with procedural steps such as discovery, but did not furnish security and did not respond to the notice in a manner that resolved the security dispute, leading to the defendants’ Rule 47(3) application.

In the Rule 47(3) application, the defendants demanded security of R350 000.00, contending that the plaintiff, as a foreign-based litigant allegedly without unencumbered immovable property in South Africa, might not satisfy an adverse costs order and that enforcement would be difficult. The defendants further asserted that the plaintiff’s prospects in the main action were weak and that an adverse costs order would likely be difficult to execute.

The plaintiff opposed security. It did not dispute that it was Zimbabwe-based, but disputed that peregrinus status alone justified security and contended that exceptional circumstances justifying security were absent. The plaintiff placed before the court that the purchase price had been paid in full by 10 October 2016, and recorded that this was not denied. The plaintiff also relied on the overall narrative that it had been led to believe the grader would be delivered and registered in its name, that issues later emerged concerning the grader’s possession and attachment by a third party creditor, and that the grader was ultimately sold at auction. The plaintiff produced financial documentation (a bank statement) to support its ability to litigate and, by implication, to meet financial obligations.

A further material factual issue arose regarding the late answering affidavit in the Rule 47(3) proceedings. The plaintiff’s answering affidavit was due on 23 November 2022. An unsigned copy was served on 1 December 2022, and a signed copy was served only on 16 January 2023. The defendants contended the unsigned affidavit should be treated as ineffective, which would render the delay substantial. The plaintiff explained the delay by reference to consultation and document-gathering, counsel’s illness, the logistics of obtaining a signature from a deponent located outside South Africa, and an unsuccessful attempt to deliver the signed affidavit during the festive closure of the defendants’ attorneys’ offices.

3. Legal Issues

The court was required to determine two central questions.

The first was whether the plaintiff had shown sufficient cause for condonation of the late filing of its answering affidavit in the security application, including whether the explanation was full and reasonable and whether the delay should be excused in the interests of justice.

The second was whether, on the facts and applicable principles, the defendants were entitled to an order in terms of Rule 47(3) compelling the plaintiff (as a peregrinus) to furnish security for costs in the amount demanded, and staying the proceedings pending such security.

These issues were primarily concerned with the application of legal principles to the facts, coupled with the exercise of judicial discretion. Both condonation and security for costs required the court to evaluate the circumstances, fairness, and equity, rather than making findings on the merits of the main action.

4. Court’s Reasoning

On condonation, the court treated the late filing of the answering affidavit as non-compliance requiring an indulgence. It applied the Constitutional Court’s approach that condonation turns on the interests of justice, which includes the extent and cause of the delay, the explanation for it, the effect on the administration of justice, and the absence or presence of prejudice. The court accepted that condonation is not granted merely for the asking and requires a full explanation that is sufficiently reasonable to excuse the default.

The court considered the plaintiff’s explanation that meaningful consultation occurred only shortly before the due date, that essential supporting documents were collected over time, and that counsel’s unavailability and later illness contributed to the delay. It also accepted the logistical complications relating to signature and commissioning outside South Africa, and the attempted delivery during the festive period when the defendants’ attorneys’ offices were closed. The court regarded the defendants as having received an unsigned version with the same substantive content earlier, and held that prejudice did not arise in the circumstances because the later signed version did not alter the substance.

The court was therefore not prepared to exclude the answering affidavit and exercised its discretion to grant condonation for the late filing of the signed affidavit.

On the Rule 47(3) security application, the court approached the matter as an exercise of discretion, guided by the principle that an incola does not have an automatic right to security “as of course”, and that the court must decide on fairness and equity in light of the circumstances of each case. The court accepted that the plaintiff was a peregrinus and that the general policy underlying security is to protect incola litigants against difficulty in enforcing costs orders against foreign litigants. However, it emphasised that the court retains a judicial discretion and must balance relevant considerations.

In applying these principles, the court attached significance to the fact that the defendants were still in possession of the purchase price that had been paid in full and that delivery of the grader had not occurred. It regarded this as an important fairness consideration when determining whether it would be equitable to compel the plaintiff to provide further funds as security. The court also considered that the plaintiff had produced financial documentation demonstrating means, and it did not accept that the existence of funds in a foreign jurisdiction, without more, justified a conclusion that the plaintiff would be unable to satisfy an adverse costs order.

While noting that the merits of the main action would be ventilated at trial, the court expressed the view that the defendants’ explanation relating to the grader’s attachment and sale did not persuasively justify the position advanced for security, particularly when the delay in delivery and registration featured in the factual matrix. The court ultimately concluded that, in the circumstances, compelling security in an amount comparable to what the plaintiff had already paid would be unfair, and that the security application appeared directed at stifling a genuine claim rather than serving the protective purpose of security for costs.

The court accordingly held that fairness and equity did not support ordering security and dismissed the Rule 47(3) application.

5. Outcome and Relief

The court granted condonation for the respondent’s late filing of the answering affidavit in the Rule 47(3) proceedings.

The court dismissed the defendants’ Rule 47(3) application seeking an order compelling the plaintiff to furnish security for costs and to stay the proceedings pending compliance.

The defendants (as applicants in the interlocutory proceedings) were ordered to pay the costs of both the Rule 47(3) application and the condonation application on the attorney-and-client scale, including the costs of counsel, to be taxed on Scale C.

Cases Cited

Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC)

Magida v Minister of Police 1987 (1) SA 1 (A)

Barker v Bishop’s Diocesan College and Others 2019 (4) SA 1 (WCC)

Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (CC)

Legislation Cited

Companies Act 71 of 2008

Rules of Court Cited

Uniform Rules of Court, Rule 47(1)

Uniform Rules of Court, Rule 47(3)

Held

The court held that the plaintiff provided a sufficient, reasonable explanation for the late filing of its signed answering affidavit, that condonation is assessed in the interests of justice, and that no material prejudice to the defendants arose because an unsigned copy with the same content had been served earlier. Condonation was therefore granted.

The court further held that, although the plaintiff was a peregrinus, the defendants were not entitled to security as of right. The question was one of judicial discretion informed by fairness and equity. Given that the defendants remained in possession of the purchase price and that compelling further security would be unfair in the circumstances, the court dismissed the application for security for costs.

LEGAL PRINCIPLES

Condonation for non-compliance with procedural time limits is an indulgence granted at the court’s discretion and is determined according to the interests of justice, requiring a full and reasonable explanation for the delay and consideration of prejudice and other relevant circumstances.

An incola defendant does not have an automatic entitlement to security for costs against a peregrinus plaintiff. The court must exercise a judicial discretion, having regard to the particular circumstances of the case and considerations of fairness and equity between the parties.

In exercising the discretion on security for costs, the court’s assessment is directed at procedural fairness and the protective purpose of security, and it must avoid outcomes that effectively stifle genuine litigation through disproportionate financial burdens, especially where the equities of the case do not justify that result.