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Malokoane v Combined Private Investigations CC and Others (J128/2023) [2026] ZALCJHB 10 (5 January 2026)

60 Reportability
Labour Law
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Brief Summary

Security for costs — Application for security for costs dismissed — Respondents failed to demonstrate abuse of court process or lack of prospects of success by the applicant.

Comprehensive Summary

Summary of Judgment


1. Introduction


This judgment concerns an interlocutory application in the Labour Court for security for costs brought in terms of Rule 47(1) of the Uniform Rules of Court. The application was brought by Combined Private Investigations CC (the first respondent) and Raymond Roy Robertson (the second respondent) against Petrus Tshepo Malokoane (the applicant). The Department of Employment and Labour was cited as the third respondent and did not participate in the proceedings.


The security-for-costs application arose in the context of a pending main application in which the applicant sought various forms of declaratory and consequential relief connected to the alleged termination date of his relationship with the first respondent, including the correction of employment-related documentation and payment of amounts said to be due (salary, unemployment insurance contributions, and provident fund-related amounts).


The procedural background included ongoing and prior litigation between the parties in other fora, including proceedings in the High Court under case number 16611/2021 and prior Labour Court litigation under case number J1003/2020. The respondents also relied on the existence of an earlier application that had been struck off the roll for lack of urgency, and they indicated an intention to raise lis pendens in the main matter.


The general subject matter of the dispute, as it framed the interlocutory application, was whether the applicant’s pursuit of the main relief by way of motion proceedings constituted an abuse of process or otherwise justified an order compelling him to furnish security for costs, particularly given the respondents’ contentions about factual disputes and prospects of success.


2. Material Facts


It was common cause that the first and second respondents sought an order directing the applicant to furnish security in the amount of R250 000, coupled with a stay of proceedings pending compliance, and ancillary relief to enable an application for dismissal if security was not provided. Their primary justification was that the main application was allegedly vexatious or an abuse of process, and that the applicant’s prospects of success were poor due to an intended special plea of lis pendens.


The court accepted from the papers that the parties had been engaged in litigation previously, including High Court proceedings under case number 16611/2021 and Labour Court proceedings under case number J1003/2020. The court further accepted that, in the main application, the applicant sought a declaratory order effectively tying the termination of his appointment with the first respondent to a court order granted by Strydom AJ on 20 April 2021, and sought related directives to the third respondent and the correction of documents reflecting an exit date (including a UI-19 form, salary schedule, and certificate of service), as well as payments said to be outstanding.


A material area of dispute (as reflected in the respondents’ opposition to the main application) concerned the termination of the applicant’s employment with the first respondent. The court recorded that, on the respondents’ version in the main answering affidavit, they contended that the applicant had resigned as an employee on 19 February 2020, while continuing as a member of the close corporation, and that payments continued thereafter for reasons said to relate to the evaluation of his interest and loan account. The court also noted that, later, the respondents appeared to accept that only the applicant’s membership was terminated on 21 February 2020, as reflected in an extant court order that remained unchallenged.


The court treated as material the existence and content of the Strydom AJ order of 20 April 2021, which (on the excerpt quoted) obliged the applicant to sign a declaration confirming black shareholding within 48 hours, and considered that order relevant to the respondents’ contention that no relationship existed between the applicant and the first respondent at that time.


On the lis pendens ground, the court recorded that the respondents alleged the relief in the main application duplicated relief previously sought in an application that had been struck off for lack of urgency. The court accepted that the applicant undertook to withdraw the struck-off matter, and observed that any consequences of delay in withdrawal would fall on the applicant.


As to the applicant’s means, the respondents alleged that he was unemployed and would not be able to satisfy an adverse costs order, while also disputing contentions about the applicant’s access to significant funds. The court treated it as material that disputes existed regarding amounts allegedly due to the applicant relating to his membership interest, and that the applicant’s provident fund and unemployment benefits had not been paid due to ongoing disputes. The court also treated as material the applicant’s allegation (not disputed by the respondents for purposes of this application) that he had paid the respondents’ legal costs in other matters, including an urgent application and pending High Court litigation.


3. Legal Issues


The central legal questions were whether the first and second respondents had established a basis for an order compelling an incola natural person to furnish security for costs, and whether the circumstances were sufficiently exceptional to justify such an order.


Within that inquiry, the court was required to consider whether the main application was reckless, frivolous, vexatious, or an abuse of process, including whether it was “obviously unsustainable” in the sense described in authority relied upon. The court also had to evaluate the respondents’ reliance on an intended plea of lis pendens as a factor bearing on prospects of success and alleged abuse.


These questions primarily concerned the application of legal principles to the asserted facts (including the nature of disputes on the papers) and a discretionary/value judgment inherent in the security-for-costs assessment, including the balancing of prejudice between litigants.


4. Court’s Reasoning


The court began by setting out the procedural framework of Rule 47(1), which requires a party seeking security for costs to deliver a notice setting out the grounds and amount demanded, as soon as practicable after commencement of proceedings. The court also emphasised that, in such applications, it is not required to conduct a detailed investigation into the merits or attempt to resolve the main dispute in a manner that would pre-empt the court seized with the principal case. In this respect, the court relied on authority indicating that extensive merits determinations are inappropriate at the security stage.


In approaching the discretion, the court adopted a balancing exercise consistent with the approach articulated in Keary Developments Ltd v Tarmac Construction Ltd and Another. The court weighed, on the one hand, the potential injustice to the applicant if security were ordered and he were thereby effectively prevented from pursuing a proper claim, against, on the other hand, the potential injustice to the respondents if security were refused and they later could not recover costs should they successfully defend the main application.


The court then addressed the respondents’ contentions that the main application was an abuse of process because it proceeded by motion despite disputes of fact. It considered the respondents’ own answering affidavit in the main matter and the version advanced in the security application. The court identified inconsistencies and evolution in the respondents’ position regarding the date and nature of the applicant’s resignation/termination (including a reference in the security application to resignation on “19 February 2019,” contrasted with the main answering affidavit’s reference to “19 February 2020”). Against this backdrop, the court concluded that the “crisp issue” of termination of employment was capable of resolution on the papers, or alternatively could be managed by the court seized with the main application through the wide discretion under Rule 6(5)(g) of the Uniform Rules of Court to ensure a just and expeditious decision.


The court attached significance to the Strydom AJ order of 20 April 2021, reasoning that it could assist both the parties and the court in the main application. In particular, the court considered it material that the respondents, having full knowledge of the relevant relationship history, were positioned to explain whether the applicant was an employee after February 2020 and, if not, on what basis the parties agreed to an order requiring the applicant to sign a declaration confirming black shareholding as envisaged in BBBEE-related law. The court reasoned that the applicant could not have been ordered to sign such a declaration if no relationship existed between him and the first respondent or the second respondent at the time of that order, and found that the respondents did not adequately engage with this aspect in the security-for-costs application.


On the lis pendens contention, the court noted that the applicant had undertaken to withdraw the application that had been struck off, and indicated that the applicant would bear consequences of not doing so timeously. The court did not accept that the mere intention to raise lis pendens, in the circumstances described, amounted to “exceptional circumstances” justifying security.


Turning to the broader threshold for ordering security against an incola, the court relied on principles drawn from Ecker v Dean and Western Assurance Co v Caldwell’s Trustee, emphasising that the power to order security in such circumstances derives from the court’s inherent jurisdiction to prevent abuse of its process, and that security is ordered only in exceptional circumstances. The court further relied on the proposition that mere inability of an incola to satisfy a potential costs order is insufficient; “something more” is required, as stated in Ramsamy NO v Maarman NO and Another.


Applying those principles, the court found no basis to conclude that the applicant’s litigation was reckless, frivolous, or vexatious, and held that the respondents had not demonstrated exceptional circumstances warranting security. The court also considered the respondents’ reliance on the applicant’s unemployment and alleged inability to pay, and concluded that this was not enough, especially given the ongoing disputes about the applicant’s entitlement to payments linked to his membership interest and the fact that he had not yet received certain benefits due to the broader disputes. The court treated it as significant that, on the papers, the respondents did not dispute that the applicant had paid their legal costs in other litigation, which undermined the contention that he would necessarily be unable to meet costs obligations.


In its evaluative conclusion, the court expressed the view that the respondents’ application operated indirectly to impede the applicant from pursuing his claim against parties who, on the court’s assessment of the context, ought to have addressed payment issues earlier. The court stated that it would not “close the door” to the applicant having his dispute adjudicated.


5. Outcome and Relief


The Labour Court dismissed the application for security for costs. The first and second respondents were ordered to pay the costs of the security-for-costs application.


Cases Cited


African Farms and Townships v Cape Town Municipality 1963 (2) SA 555 (A). Legal Practice Council v Sampson and Others (2556/2021) ZAGPPHC 742 (6 October 2022). Keary Developments Ltd v Tarmac Construction Ltd and Another [1995] 3 All ER 534 (CA). Western Assurance Co v Caldwell’s Trustee 1918 AD 512. Ecker v Dean 1938 AD 102. Ramsamy NO v Maarman NO and Another 2002 (6) SA 159 (C).


Legislation Cited


Close Corporations Act 69 of 1984. Broad-Based Black Economic Empowerment Act 53 of 2003. Broad-Based Black Economic Empowerment provisions referenced as published in Government Gazette No. 42496 on 31 May 2019 (as quoted in the Strydom AJ order extract).


Rules of Court Cited


Uniform Rules of Court, Rule 47(1). Uniform Rules of Court, Rule 6(5)(g).


Held


The court held that the first and second respondents did not establish exceptional circumstances justifying an order that an incola natural person furnish security for costs. The court further held that the respondents had not shown that the main application was reckless, frivolous, vexatious, or an abuse of process, and it was not persuaded that the alleged disputes of fact were incapable of resolution on the papers or through the mechanisms available under Rule 6(5)(g). The application for security for costs was accordingly dismissed, with costs awarded against the first and second respondents.


LEGAL PRINCIPLES


A court determining an application for security for costs under Rule 47(1) does not undertake a full merits enquiry or attempt to resolve the principal factual disputes in a manner that would pre-empt the court hearing the main matter; the enquiry is limited and directed at whether security is justified in the circumstances presented.


The discretion to order security involves a balancing exercise between the potential injustice to a claimant who may be prevented from pursuing a proper claim and the potential injustice to a defendant who may be unable to recover costs if ultimately successful.


In relation to an incola natural person, an order for security is generally granted only in exceptional circumstances, grounded in the court’s inherent jurisdiction to prevent abuse of process. The mere fact that a litigant may be unable to satisfy a future costs order is not, without more, sufficient to justify an order for security.


Where disputes of fact are alleged in motion proceedings, the presence of such disputes does not automatically demonstrate abuse or justify security; the court may consider whether disputes are capable of resolution on the papers or whether the court seized with the main matter can employ Rule 6(5)(g) to ensure a just and expeditious determination.

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J128/2023
In the matter between:
PETRUS TSHEPO MALOKOANE Applicant
and
COMBINED PRIVATE INVESTIGATIONS CC First Respondent
RAYMOND ROY ROBERTSON Second Respondent
DEPARTMENT OF EMPLOYMENT AND
LABOUR Third Respondent
Delivered: 05 January 2026

JUDGEMENT
GXOGXA, AJ



(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised

____________ ______________
Signature Date

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Introduction
[1] This is an application for security for costs in terms of Rule 47 (1) of the Uniform
Court Rules, in which the first and second respondents seek the following order:
(i) That the applicant be ordered to pay security for costs in the amount of
R250 000;
(ii) That proceedings be stayed until such order is complied with;
(iii) That in the event that the security for costs is not furnished within the time
stipulated, that the first and second respondents be given leave to apply
on the same papers, amplified as may be necessary, for the dismissal of
the proceedings.
(iv) That the applicant be ordered to pay the costs of this application.
[2] The first and second respondents’ application for security for costs is based on
the allegation that the declaratory order sought in the main application constitutes
an abuse of this court’s processes in that the applicant ought to have issued a
statement of claim, as there are dispute of facts between the parties.
[3] The second basis of the respondents’ demand for security for costs is that the
applicant’s prospects of success in the main application are said to be lacking in
that the first and second respondents intend to raise a special plea of lis
pendens.
[4] In African Farms and Townships v C ape Town Municipality
1, Holmes JA
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.’

1 1963 (2) SA 555 (A) at 565D-E.

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[5] It is also evident from the papers , both for the declaratory order and the current
application, that the parties have been litigating against each other before , in the
high court under case number 16611/2021 and this court under case number
J1003/2020.
[6] Therefore, the first and second respondents’ view that the proceedings by the
applicant are an abuse of court process will become clear below.
Background
[7] The applicant in his main application seeks a declaratory order in the following
terms:
7.1 Confirming that the applicant’s appointment with the first respondent
terminated simultaneously with the applicant’s membership in terms of the
Close Corporations Act2 and the court order, by the Honourable Acting
Judge Strydom on 20 April 2021.
7.2 Authorising the third respondent to calculate the benefits accrued and due
to the applicant in terms of the Unemployment Insurance Fund as from 20
April 2021.
7.3 Ordering the first and second respondents to amend the exit date on the
applicant’s UI-19 form, salary schedule and certificate of service to record
20 April 2021.
7.4 Directing the first and second respondents to pay the applicant’s salary
from 1 September 2020 to April 2021.
7.5 Ordering the first and second respondents to calculate and pay the
applicant’s contributions towards the UIF and the Provident Fund, which
was held with Liberty, from 1 September 2020 to April 2021.

2 Act 69 of 1984.

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7.6 Costs of this application be paid by the respondents in the event of
opposition.
[8] The applicant’s application to compel is opposed by the CPI and the second
respondents, and it is clear from the grounds of opposition that the issue of the
termination of the employment of the applicant by the CPI is in dispute.
[9] The issue of the termination of employment of the applicant is the main basis that
the respondents are of the view that the main application is an abuse of court
processes and lacks prospects of success.
Analysis
Security for costs
[10] Rule 47(1) relied upon states the following:
‘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.’
[11] In an application for security for costs , a court is not required to do a detailed
investigation of the case, nor attempt to resolve the dispute between the parties ,
as this would be tantamount to pre- empting a trial court seized with the main
case3.
[12] In Keary Developments Ltd v Tarmac Construction Ltd and Another ,4 the court
held that:
‘The court must carry out a balancing exercise. On the one hand it must weigh
the injustice to the plaintiff if prevented from pursuing a proper claim by an order
for security. Against that, it must weigh the injustice to the defendant if no
security is ordered and at the trial the plaintiff’s claim fails and the defendant

3 Legal Practice Council v Sampson and Others (2556/2021) ZAGPPHC 742 (6 October 2022) at para 11.
4 [1995] 3 All ER 534 (CA) at 540a-b.

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finds himself unable to recover from the plaintiff the costs which have been
incurred by him in his defence of the claim.’
[13] In casu, this court is required to balance the injustice that is likely to result if the
applicant is prevented from enforcing his rights as a former member and
employee of the CPI against the injustice to be caused if the first and second
respondents are granted the security for costs.
[14] It has been held that in the case of an insolvent natural person who is an incola,
security will only be granted if his or her action can be found to be reckless and
vexatious5. Frivolous or vexatious litigation has been held to be an abuse of
process in Western Assurance Co V Caldwell’s Trustee 6 (Western Assurance).
There is no basis for such a finding in the present facts.
[15] It was explained in Ecker v Dean7 (Ecker) that the court’s power to order security
against an incola is derived from the court’s inherent jurisdiction to prevent abuse
of its own process in certain circumstances. There is no basis for a finding that
the applicant is abusing court processes in this matter.
[16] This court turns to deal with the issue of dispute of facts , which the first and
second respondents believe it to be an abuse of this court’s processes.
[17] In deciding whether there exists a dispute of facts which is incapable of
resolution through motion proceedings, this court has considered the allegations
of the first and second respondents in the main application and those in the
current application.
[18] In having regard to the allegations in the main application, the first and second
respondents, in their answering affidavit , in particular in paragraphs 71-72, read
with paragraph 32 on page 269, indicated that they believed that the applicant

5 Ecker v Dean 1938 AD 102 at 110.
6 1918 AD 512 at 517.
7 Ecker v Dean 1938 AD 102 at 111.

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had resigned as an employee of the CPI on 19 February 2020 and continued to
be a member of the CPI.
[19] It is also clear from the paragraphs mentioned above that the second respondent
says he continued to pay monies to the applicant after the alleged date of
resignation. The reason advanced by the second respondent for such payment is
that he paid based on the decision he took to continue paying an amount
equivalent to the applicant’s salary, pending finalisation of the evaluation of the
applicant’s interest in CPI and his loan account.
[20] In a later turn of events , a year later, the first and second respondents seem to
have agreed that only the applicant’s membership in the CPI was terminated on
21 February 2020. This is contained in a court order , which remains
unchallenged to date.
[21] When the court considers the above- mentioned paragraphs of the answering
affidavit, this court is of the view that the crisp issue of the termination of the
employment of the applicant can be resolved on paper alternatively by a court in
exercising its wide discretion in terms of Rule 6(5)(g) of the Uniform Rules of the
Court.
[22] Despite the allegations in the affidavit of the first and second respondents as
stated above and the new version advanced in the application for security for
costs in paragraph 14 thereof which states that the respondents’ case is that the
applicant resigned as an employee of CPI on 19 February 2019, this court is
convinced that the court order of Strydom AJ is capable of assisting the parties
and the court that will be seized with the main application.
[23] Again, in terms of the order 1 of the Strydom AJ court order, the applicant was
ordered to perform a task within 48 hours of that order, which is what this court
believes to be the issue that has caused the applicant to believe that his
employment was terminated on 21 April 2021.

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[24] For ease of reference, this court considers it desirable for it to quote or der 1 of
the court order below:
‘HAVING HEARD counsel on behalf of the Applicant and the First Respondent
and after perusal of the documents filed, an order in the following terms is made
by agreement between the parties:
1. The First Respondent is ordered to sign the declaration to confirm black
shareholding, as provided for and envisaged in the Broad- Based Black
Economic Empowerement Act, 53 of 2003 read together with the
provisions of the Broad-Based Black Economic Empowerment, published
in Government Gazette No. 42496 on 31 May 2019, within a period of 48
hours.’
[25] It is this court’s view that the first and second respondents possess the full
knowledge which demands that they provide an answer on whether or not the
applicant was an employee of the CPI after 19 February 2020, and if he was not
an employee, on what basis then did they, as parties, agree that the applicant
sign a declaration to confirm black shareholding.
[26] The applicant could not have been ordered to sign a declaration to conf irm black
shareholding if there was no relationship that existed between the applicant and
the CPI or second respondent on 20 April 2021.
[27] Unfortunately, the first and second respondents do not address this issue in their
application, save to state in paragraph 14 of their application that the applicant
resigned as an employee of CPI on 19 February 2019.
[28] This then requires this court to decide whether or not the alleged dispute of fact
is one that is said to be incapable of being resolved on paper. This court is of the
view that the issue of termination of the employment of the applicant is an issue
that can be resolved on paper.

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[29] Even if this court is wrong in its belief, this court believes that the provisions of
Rule 6 (5)(g) grant the court which will be seized with the main application wide
discretion in ensuring a just and expeditious decision.
[30] Another ground for demanding the security for costs is that the first and second
respondents intend to raise an issue of lis pendens, in that the relief sought in the
main application is the same relief that was sought in the application that was
struck off the roll for lack of urgency.
[31] To this end, the applicant has undertaken to withdraw the case that was struck
off the roll. As to when the applicant decided to withdraw the application, it is the
applicant who will suffer the consequence of not doing so timeously.
[32] As already stated in the case of Western Assurance Co, the power to order
security for costs is ordered in exceptional circumstances . In this case, the first
and second respondents have failed to demonstrate the exceptional
circumstances for this court to exercise its discretion in favour of their application
for security for costs.
[33] In terms of the common law , mere inability by an incola to satisfy a potential
costs order is insufficient to justify an order for security ; something more is
required.8
[34] In casu, the allegation that the applicant is unemployed and therefore cannot
afford to pay the costs is not enough for the reason that the CPI and the second
respondent, who still have an obligation to determine the value of the applicant’s
membership interest in the CPI, are entitled to an order for security.
[35] The court has taken note of the respondents’ dispute in paragraph 59, where it is
stated that the applicant definitely does not have R71 091 857.50 as security for
this application.

8 Ramsamy NO v Maarman NO and Another 2002 (6) SA 159 (C) 172I-J.

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[36] This allegation is the subject of another pending litigation, and until the
judgement is delivered in that matter, only then will the respondents be certain
that the applicant does not have that amount.
[37] Even if the applicant does not have an amount of R71 091 857.50, what is
certain is that the applicant has his unpaid share of his membership in the first
respondent in terms of the agreement between the parties , which was made an
order of court by Strydom AJ under case number 16611/2021.
[38] It is also clear from the papers that the applicant has not been paid the benefits
from his provident fund and unemployment benefits due to the pending disputes
between the parties.
[39] It is therefore clear to the court that upon the resolution of the disputes between
the parties, it is more likely than not that pay -out due to the applicant by the CPI
is payable when the parties have determined the fair share of the applicant.
[40] The first and second respondents , in the court’s view, have failed to show that
the applicant’s application is an abuse of court processes and that the applicant
will not be able to pay litigation costs, should the need arise.
[41] This is clear from the fact that the first and second respondents have not
disputed that the applicant has paid the first and second respondents’ legal costs
in the urgent application and the pending high court litigation, as is stated in
paragraphs 9.4-9.7 of the applicant’s answering affidavit filed in this application.
[42] Consequently, this court is of the view that if there is any party that is abusing the
court processes, it is the first and second respondents whose conduct indirectly
seeks to prevent the applicant from pursuing his claim against the parties who
ought to have long paid the applicant his fair share in the CPI.
[43] This court refuses to close the door to the applicant in having his legal dispute
decided before a court.

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[44] It is this court’s considered view that the first and second respondents’
application must fail and the first and second respondents must pay the costs
occasioned by the unnecessary institution of the application for security for costs.
[45] The court accordingly makes the following order:
Order
The application for security for costs is dismissed with costs.

__________________________
A Gxogxa
Acting Judge of the Labour Court of South Africa

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Appearances
For the Applicant: Mr Lusenga
Instructed by: Lusenga Attorneys Incorporated
For the First and Second Respondent: Adv C Prinsloo
Instructed by: Arthur Channon Attorneys
For the Third Respondent No appearance

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