I offered the parties the opportunity to argue that
point before me if they chose to do so. If they chose not to
argue that point, I explained to the parties that my view was
that, notwithstanding the terms of the Rule, it was open to a
Court to release the appellant from having to provide the
security and that because the strength or weakness of the
appeal itself is material to such a decision, the court best
placed to decide the application to compel security for costs
is the Ful l Court before which the appeal is ultimately set
down.
I accordingly explained to the parties that if they did
not wish to argue the Rule 49 (13) point, my view was that
the application to compel security ought to be postponed to
be dealt with by the Full Court .
I had initially understood that the parties were
content for me to consider the point of whether Rule 49(13)
is ultra vires . I postponed the matter to allow the parties to
file submissions on that point. The parties did so, but when
the matter was called for argument today, I was informed
that, on reflection, neither party was interested in a ruling
on the legality of Rule 49 (13). The parties having taken
that view, it would be inappropriate to rule on the point.
Counsel for the respondents on appeal argued that
the legality of rule 49 (13) no longer being in issue, the
appellants’ prospects of success are irrelevant to the
application to compel, since the Rule itself says that
security for costs must be provided in all cases unless the
respondent on appeal waives such security.
I do not agree. It is within the inherent power of any
court to depart fr om the rules where the interests of justice
require such a departure. The power to condone
noncompliance with the rules is one regularly exercised in
this court. That power may be exercised mero motu in an
appropriate case.
It seems to me that where an appellant has been told,
in this case by the Supreme Court of Appeal, that its appeal
bears prospects of success, it is not prima facie in the
interests of justice to require it to provide security for costs
in order to have its appeal p ursued. In my view, it must be
within the power of Full Court to relieve it from the
obl igatio n to provide security . M aterial to the exercise of
that power must be the nature of the appeal, and the issues
to be determined in the appeal.
For all those reasons, in the circumstances of this
case it seems to me that the application for security ought
to be decided by a court which has acquainted itself with
the merits of the appeal .
It was further argued that postponing the application
for security to be dealt with by the Full Court would render
the respondents’ right to security nugatory. I do not agree.
If it is satisfied that security should be provided, the Full
Court may postpone the appeal until the appellant puts the
security up. It may also direct that the appeal be stayed or
dismissed if the security is not provided.
But such powers ought not to be exercised by a court
that has not acquainted itself with the merits of the appeal.
The record in this case has not been placed before me, but
I am informed that it runs to thousands of pages. The
application for security was enrolled as one of two hundred
matters placed before me in my trial interlocutory court for
the week of 19 January 2026. In those circumstances it was
never realistic to expect the matter to be entertained in that
court on opposed basis. Even though the applicable
practice directions envisage that applications interlocutory
to Full Court appeals may be dealt with in trial interlocutory
court, the respondent in this appeal ought to have
appreciated that this application could not appropriately be
dealt with in that way.
I was told during argument that the registrar has
refused to allocate a date for the appeal precisely because
security has not been given and the application for security
for costs has not been decided . T hat seems to me to be a
shortsighted view to take . It is certainly not a view that has
appropriate regard to the particularities of this case.
I n any event I will direct the registrar to allocate a