THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 963/2022
In the matter between:
IRIS KOOPMAN APPLICANT
and
MINISTER OF POLICE RESPONDENT
Neutral citation: Koopman v Minister of Police (963/2022) [2026] ZASCA 45
(7 April 2026)
Coram: MATOJANE and COPPIN JJA and KGANYAGO AJA
Heard: 10 February 2026
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme Court of Appeal website
and released to SAFLII. The date and time for the handing down of the judgment are
deemed to be 11h00 on 7 April 2026
Summary: Security for costs – Rule 49(13) of the Uniform Rules of Court – Rule 9 of
the Rules of the Supreme Court of Appeal – single judge of the high court refused
leave to appeal – this Court granted leave to appeal to the full court – respondent
made no request for security at the petition stage and no order for security was made
– whether the obligation to furnish security under Rule 49(13) is revived when this
Court directs the appeal to the full court – held: Rule 49(13) is definitionally confined
to high court proceedings; the term ‘court’ in the Uniform Rules does not encompass
this Court – Rule 9 of the Rules of the Supreme Court of Appeal provides a discrete
and discretionary regime and imposes no obligation absent a respondent's request
and a court order.
2
ORDER
___________________________________________________________________
The following order is made:
1 Condonation is granted to the applicant for her failure to apply for release from
the obligation to furnish security for costs when she petitioned this Court in
October 2022.
2 It is declared that Rule 49(13) of the Uniform Rules of Court does not apply to
the prosecution of the applicant's appeal before the Full Court of the Gauteng Division
of the High Court, Pretoria, under case number A280/2023 and 72988/2017, and that
the applicant is not obliged to furnish security for costs in terms of that rule.
3 In the alternative, and to the extent that Rule 49(13) of the Uniform Rules of
Court may be found to apply, the applicant is released from the obligation to furnish
security for costs in terms of that rule in the prosecution of the appeal referred to in
paragraph 2 of this order.
4 The costs of this application are to be costs in the appeal referred to in
paragraph 2 of this order.
JUDGMENT
___________________________________________________________________
Matojane JA (Coppin JA and Kganyago AJA concurring):
Introduction
[1] This is an application by Ms Iris Koopman (Ms Koopman) for two orders:
condonation to be granted for her failure to seek release from the obligation to furnish
security for costs when she petitioned this Court in October 2022, and a declaration
that Rule 49(13) of the Uniform Rules of Court (the Uniform Rules) does not apply to
the prosecution of her appeal before the Full Court of the Gauteng Division of the High
Court, Pretoria (the full court), alternatively an order releasing her from the security
obligation. The respondent, the Minister of Police (the Minister), declined to waive the
requirement but did not oppose this application and filed no answering affidavit. The
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factual averments in the founding affidavit therefore stand uncontradicted.
The background
[2] Ms Koopman is an unemployed, unmarried woman who lives with her minor
child in a shack in an informal settlement in Kuruman, in the Northern Cape. She owns
no immovable property and has no assets of material value.
[3] On 4 March 2015, she was arrested at her home without a warrant on a charge
of common assault against her then-boyfriend, Mr Leon Coetzee (Mr Coetzee), which
had allegedly been committed two days earlier. She was detained at the Kathu South
African Police Service station, together with her seven -month-old infant, whom she
was still breastfeeding, until the morning of 6 March 2015. On 5 March 2015,
Mr Coetzee had indicated that he wished to withdraw the charge.
[4] Ms Koopman brought an action for damages in the Gauteng Division of the
High Court, Pretoria (the high court), against the Minister for unlawful arrest and
detention. The Minister's defence relied upon s 40(1)(q) of the Criminal Procedure Act
51 of 1977 (the CPA), read with s 40(2) of the CPA, and s 3 of the Domestic Violence
Act 116 of 1998 (the DVA). The trial was conducted on a virtual platform during the
COVID-19 pandemic.
[5] The high court (per Rabie J) dismissed the action and, on 29 September 2022,
refused leave to appeal. Ms Koopman petitioned this Court in terms of s 17(2) (b) of
the Superior Courts Act 10 of 2013 (the Superior Courts Act)1 for leave to appeal
against the judgment of the high court. On 12 December 2022, this Court granted her
leave to appeal to the full court.
[6] The prosecution of the appeal was delayed because the registrar had not
preserved the virtual trial recordings. Ms Koopman’s attorney eventually obtained the
1 Section 17(2)(b) of the Superior Courts Act provides the following:
‘Leave to appeal
(2)(b) If leave to appeal in terms of paragraph (a) is refused, it may be granted by the Supreme Court
of Appeal on application filed with the registrar of that court within one month after such refusal, or such
longer period as may on good cause be allowed, and the Supreme Court of Appeal may vary any order
as to costs made by the judge or judges concerned in refusing leave.’
4
recordings from the MS Teams platform used for the proceedings, furnished them to
the registrar, and had them transcribed. A hearing date before the full court was then
allocated for 7 May 2025.
[7] Neither party raised the issue of security for costs until shortly before the
May 2025 hearing, when Ms Koopman ’s attorney requested that the Minister waive
the security requirement, which the Minister declined to do. Ms Koopman thereupon
applied to the full court for release from the obligation to furnish security for costs. The
full court, taking the view that the matter fell outside its competence, removed the
appeal from the roll because security had not been furnished and no power of
attorney had been filed. The court expressed the view that the question of release
from security for costs was one for this Court to determine before the appeal could
proceed.
[8] The Minister failed to raise the security issue in terms of Rules 30 or 30A of the
Uniform Rules at any stage of the appellate proceedings, and has also not alleged or
demonstrated any prejudice attributable to the timing of this application to this Court.
The issues
[9] Three issues arise for decision. The first is whether condonation should be
granted. The second, and central, issue is whether Rule 49(13) of the Uniform Rules
applies at all to an appeal where leave was granted by this Court rather than by a
judge of the high court. The third issue, which arises only if the second is answered
affirmatively, is whether Ms Koopman should be released from the obligation to furnish
security.
The applicable rules
[10] Rule 49(13)(a) of the Uniform Rules requires any party granted leave to appeal
to the full court to furnish security for the respondent's costs of appeal before a hearing
date may be obtained. The obligation is peremptory and is displaced only by the
respondent's waiver or a court order.2
2 Rules regulating the conduct of the proceedings of the several provincial and local divisions of the
High Court of South Africa, GN R48, GG 999, 12 January 1965.
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[11] Section 17(1)(a) of the Superior Courts Act regulates the grant ing of leave to
appeal by the judge or judges who gave the decision under challenge. 3 Where leave
is refused, the aggrieved party may petition this Court under s 17(2)(b) of the Superior
Courts Act.
[12] Rule 9 of the Rules of the Supreme Court of Appeal (the SCA Rules)4 governs
the position where an appeal is to be heard by this Court. It does not, on its terms,
apply to cases in which this Court has granted leave to appeal to the full court of a
high court division. It authorises this Court, when granting leave to appeal, to order
that security for costs be furnished, but only upon the respondent's request . No
automatic obligation arises. Unless the respondent makes the request5 and this Court
makes an order.
[13] Rule 1 of the Uniform Rules defines ‘court' as the high court of South Africa
referred to in s 6 of the Superior Courts Act. This Court is established under the
Superior Courts Act as a distinct institution governed by its own procedural rules. It
falls outside that definition.
Condonation
[14] The Minister does not contest the condonation sought. The explanation for the
omission is satisfactory. Ms Koopman's attorney proceeded on the understanding that
no security obligation arose under the SCA Rules, and anticipated, not unreasonably,
given the legal questions raised, that this Court would hear the appeal itself. The issue
of security did not surface until preparations were underway for the full court hearing.
No prejudice has been alleged or demonstrated. Condonation is accordingly granted.
Whether Rule 49(13) of the Uniform Rules applies
[15] The starting point is the source of this Court's jurisdiction. Jurisdiction is
3 Section 17(1)(a) of the Superior Courts Act provides as follows:
‘Leave to appeal
(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that -
(a) (i) the appeal would have a reasonable prospect of success; or
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including conflicting
judgments on the matter under consideration.’
4 Rules regulating the conduct of the proceedings of the Supreme Court of Appeal of South Africa (the
SCA Rules), GN R1523, GG 19507, 27 November 1998.
5 Rule 9(1) of the SCA Rules.
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conferred by the Constitution of the Republic of South Africa, 1996 (ss 168(3) and
172(2)(a)), the Superior Courts Act, and the SCA Rules. None of these instruments, in
express terms, confers jurisdiction on this Court to entertain a standalone originating
application concerning security for costs in respect of an appeal pending before the
full court of a high court division.
[16] The Uniform Rules were promulgated under the Supreme Court Act 59 of 1959
(since repealed) and govern practice and procedure in the divisions of the high court.
They constitute subordinate legislation promulgated by the Rules Board for Courts of
Law pursuant to the Rules Board for Courts of Law Act 107 of 1985. The mandate
of the Rules Board is to regulate procedural matters in the courts to which its
promulgation authority extends. That mandate does not comprehend the conferral of
jurisdiction on superior courts.
[17] It is a well -established principle that subordinate legislation cannot confer
jurisdiction on a superior court; 6 jurisdiction must be conferred by the Constitution or
by primary legislation. A procedural rule made by the Rules Board is precisely that, a
provision regulating procedure in the courts to which it applies. To treat it as capable
of conferring original jurisdiction on this Court would be to accord to subordinate
legislation a constitutional function it cannot discharge.
[18] The Uniform Rules, as rules of high court procedure, are directed at the
divisions of the high court and not at this Court. The SCA Rules and the Superior
Courts Act govern this Court's procedures. Rule 49(13) of the Uniform Rules operates
within the procedural domain of the high court. Its mechanism is straightforward: a
judge of the high court hears an application for leave to appeal in the matter they
decided at first instance and, upon granting leave, activates the security obligation.
Where a single ju dge refuses leave, that mechanism is never triggered; Rule 49(13)
Where a single ju dge refuses leave, that mechanism is never triggered; Rule 49(13)
6 In Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (Treatment Action
Campaign and Another as Amici Curiae) [2205] ZACC 14; 2006 (2) SA 311 (CC); 2006 BCLR 1 (CC)
The Constitutional Court emphasised that subordinate legislation derives its force from enabling
legislation and cannot exceed or alter it, reinforcing that it cannot create jurisdiction where none exists.
See also Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004]
ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) which reiterated that subordinate legislation
must remain within the bounds of its empowering statute, which includes not expanding jurisdiction.
7
of the Uniform Rules is not activated, and no obligation under it arises. The matter
then proceeds on petition before this Court under s 17(2) (b) of the Superior Courts
Act, governed by the SCA Rules.
[19] The issue is whether Rule 49(13) of the Uniform Rules is revived when this
Court, acting under its own jurisdiction in terms of Rule 9 of the SCA Rules, grants
leave to appeal to the full court. The answer turns on the definition of “court” in the
Uniform Rules, which is expressly limited to the high court and does not extend to this
Court. Accordingly, an order made by this Court directing that an appeal be heard by
the full court does not constitute an order of the “court” as contemplated in Rule 49(13).
It follows that the consequences ordinarily associated with that rule are not triggered
or governed by it in such circumstances.
[20] Rule 9 of the SCA Rules confirms this conclusion. It provides a regime that is
complete in itself and governs security for costs in proceedings before this Court. Its
structure differs fundamentally from rule 49(13): security is not automatic; it requires a
respondent's request and a court order. Where, as here, the respondent made no
request at the petition stage, and no order for security for costs was made when leave
was granted on 12 December 2022, no security obligation arose. To apply Rule 49(13)
of the Uniform Rules in this setting would be to impose a peremptory obligation where
the SCA Rules impose only a conditional one, without any textual basis for doing so.
[21] The contrary argument, that Rule 49(13) of the Uniform Rules governs all full
court appeals and therefore applies whenever leave to appeal to a full court has been
granted, regardless of who granted it, does not survive scrutiny. Rule 49(13) of the
Uniform Rules ties the security obligation to a grant of leave by a high court judge who
dismissed the original application. The destination of the appeal, whether to a full court
dismissed the original application. The destination of the appeal, whether to a full court
or to this Court, does not determine whether Rule 49(13) of the Uniform Rules applies.
The source of the order does.
[22] In Strouthos v Shear7, the court held, without analysis of the text of Rule 49(13)
7 Strouthos v Shear 2003 (4) SA 137 (T) at 138A-B and 140G-H (Strouthos). See also C Marumoagae
and P Lebitse ‘Security for costs when leave to appeal is granted by the SCA to the Full Court’ De
Rebus, 1 August 2024.
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of the Uniform Rules or Rule 9 of the SCA Rules, that leave granted by the Chief
Justice did not relieve the petitioner of the obligation to furnish security under
Rule 49(13)(a) of the Uniform Rules , and that only this Court had power to release
the petitioner from it. The court assumed, without establishing the point, that an
obligation under Rule 49(13) of the Uniform Rules had arisen in the first place. For the
reasons set out above, that assumption cannot be sustained. The decision in LG v JG8
followed Strouthos without engaging directly with the textual and structural
considerations material to the question.
[23] In Dr Maureen Allem Incorporated v Baard9, a full court of the Gauteng
Division of the High Court. Johannesburg (GJ) considered the question directly. It
held that Rule 9(1) of the SCA Rules contemplates that any precondition for security
in petition proceedings must derive from an order of this Court; that, since the
respondent had not requested security, no entitlement to it had arisen; and that
Rule 49(13) of the Uniform Rules did not apply because leave had been granted by
this Court and not by a high court within the meaning of the Uniform Rules. The full
court of the Limpopo Division reached the same conclusion in Maake and Others v
Chemfit Finechemical (Pty) Ltd.10
[24] The reasoning in Allem, in my view, is correct. It is the only decision that
engages directly with the text and structure of the applicable rules. The court in
Strouthos assumed what was to be established and, on this point, erred. Rule 49(13)
of the Uniform Rules does not apply to Ms Koopman’s appeal. Since this Court did not
order her to furnish security, she was under no obligation to do so, and the Minister
acquired no entitlement to demand it in the absence of a court order.
The alternative ground: indigency and access to courts
[25] Should Rule 49(13) of the Uniform Rules be found to apply, Ms Koopman
[25] Should Rule 49(13) of the Uniform Rules be found to apply, Ms Koopman
would, in any event, be entitled to be released from the security obligation. The
8 LG v JG (32377/2012) 2023 JDR 1402; [2023] ZAGPJHC 450 (28 April 2023).
9 Dr Maureen Allem Inc v Baard [2021] ZAGPJHC 677; [2022] 1 All SA 680 (GJ); 2022 (3) SA 207 (GJ)
(Allem).
10 Maake and Others v Chemfit Finechemical (Pty) Ltd (5772/2016, HCAA04/2018) [2018] ZALMPPHC
71 (22 November 2018) para 18.
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relevant facts are not in dispute. She is unemployed and has been without a steady
income for most of her adult life. She owns no property. She lives in a shack with a
dependent child and is indigent; there are no asset s from which security could be
furnished.
[26] Enforcing the security requirement in these circumstances would permanently
foreclose the appeal. That result would constitute an unjustifiable limitation of the right
of access to courts entrenched in s 34 of the Constitution. Ms Koopman ’s grounds of
appeal are substantive. The interaction of s 40(1) (q) of the CPA read with s 3 of the
DVA in the particular circumstances of this arrest, effected two days after the alleged
incident, at a residence the complainant had already vacated, in the complainant's
absence, with an infant present, raises genuine and unresolved questi ons of law.
Leave having been granted, the prospects of appeal are reasonable. Against the
prospect of Ms Koopman ’s permanent loss of access to the appellate process, the
Minister has demonstrated no real prejudice. The security issue was raised only at
the last moment, after more than two years of appellate proceedings conducted
without objection. The evidence is finalised, and the record is complete. The
uncontested facts would, on the alternative ground, favour release from any security
obligation.
Costs
[27] Ms Koopman seeks an order that the costs of this application be costs in the
appeal, alternatively that the Minister pay them. The Minister ’s reliance on Strouthos
was not without foundation, that decision being unreversed at the time these
proceedings were instituted. This Court has not previously clarified the position in
circumstances such as these . An adverse costs order against the Minister is not
warranted. The costs of this application are to be costs in the appeal before the full
court.
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Order
[28] The following order is made:
1 Condonation is granted to the applicant for her failure to apply for release from
the obligation to furnish security for costs when she petitioned this Court in October
2022.
2 It is declared that Rule 49(13) of the Uniform Rules of Court does not apply to
the prosecution of the applicant’s appeal before the full court of the Gauteng Division
of the High Court, Pretoria, under case number A280/2023 and 72988/2017, and that
the applicant is not obliged to furnish security for costs in terms of that rule.
3 In the alternative, and to the extent that Rule 49(13) of the Uniform Rules of
Court may be found to apply, the applicant is released from the obligation to furnish
security for costs in terms of that rule in the prosecution of the appeal referred to in
paragraph 2 of this order.
4 The costs of this application are to be costs in the appeal referred to in
paragraph 2 of this order.
________________
KE MATOJANE
Judge of Appeal
11
Appearances
For appellants: J Pearton
Instructed by: Gildenhuys Malatji Inc, Pretoria
Pieter Skein Attorneys, Bloemfontein