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[2026] ZAGPPHC 302
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Pienaar v Bluezone Property Investments (Pty) Ltd and Others (17653/2009) [2026] ZAGPPHC 302 (17 March 2026)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISON, PRETORIA
CASE
NO: 17653/2009
(
1)
REPORTABLE: YES /NO
(2)
OF INTERST TO OTHER JUDGES: YES /NO
(3)
REVISED
In
the matter between:
DEON
JOHANN PIENAAR
(and
in his capacity as joint trustee of the
Steelpoort
Debenture Trust)
Applicant
and
BLUEZONE
PROPERTY INVESTMENTS (PTY) LTD
AND/OR
SPITSKOP VILLAGE PROPERTIES LTD
(in
liquidation)
and/or
all related persons and/or entities
First
Respondent
THE
GOVERNOR OF THE SOUTH AFRICAN RESERVE BANK
Second
Respondent
THE
PRUDENTIAL AUTHORITY
Third
Respondent
MICHEAL
SIDNEY BLACKBEARD N.O.
[The
former Deputy Registrar of the South African
Reserve
Bank ]
Fourth
Respondent
DELOITTE
INC. N.O.
Fifth
Respondent
MARIUS
ALBERTS N.O.
[
The former temporary inspector appointed by the
Governor
of the South African Reserve Bank ]
Sixth
Respondent
THE
REGISTRAR OF THE FINANCIAL SERVICES
CONDUCT
AUTHORITY
Seventh
Respondent
THE
FINANCIAL SECTOR TRIBUNAL
Eighth
Respondent
COMMISSIONER
OF THE COMPANIES AND
INTELLECTUAL
PROPER SOMMISSION
Ninth
Respondent
THE
COMMISSIONER FOR SOUTH AFRICAN
REVENUE
SERVICES
Tenth
Respondent
HENDRIK
CHRISTOFFEL LAMPRECHT
Eleventh
Respondent
JOHAN
FRANCOIS ENGELBRECHT N.O.
[Appointed
liquidator of Spitskop Village
Properties
Ltd (in liquidation) and/or other
Bluezone
related companies ]
Twelfth
Respondent
ANY
OTHER APPOINTED LIQUIDATOR IN
BLUEZONE
INVESTMENTS (PTY) LTD
Thirteenth
Respondent
THE
MASTER OF THE HIGH COURT
(GAUTENG
DIVISION, PRETORIA)
Fourteenth
Respondent
DIRECTOR
OF THE FINANCIAL INTELLIGENCE CENTRE
Fifteenth
Respondent
INDEPENDENT
REGULATORY BOARD OF AUDITORS
Seventeenth
Respondent
MATTHYS
ISAK CRONJE N.O.
(STEELPOORT
DEBENTURE TRUST)
Eighteenth
Respondent
THE
NATIONAL DIRECTOR OF THE NPA
Nineteenth
Respondent
DANIEL
FREDERICH BURMEISTER
Twentieth
Respondent
JUDGMENT
T P KRÜGER AJ:
[1] This is an
application in terms of Uniform Rule 47(3) to compel the applicant to
set security for the anticipated costs
to be incurred by two groups
of respondents, to wit the first, twelfth and thirteenth respondents
(to whom I shall herein refer
as the “liquidators”) and
the second, third and fourth respondents (to whom I shall herein
refer as the “SARB
group”), in opposing the latest
litigation instituted by the applicant, Mr Deon Johann Pienaar
(Pienaar) in the main
application. Pienaar is, on his own
version, a layperson who litigates without the guidance of a lawyer.
[2] This
application was set down for two days in the Special Motion Court,
although, as I was informed by counsel for the
liquidators, the
applicant had requested the Deputy Judge President during a case
management meeting for an allocation of three
days to traverse the
iniquity of all the parties accused of delinquency in the matter
However, two days before the
hearing date, the applicant
informed the Court that he had previously indicated that he would not
attend the hearing of the application,
for the reasons advanced at
the time. These reasons were not repeated in this letter. He failed
to turn up at the hearing. The
duration of the hearing, which
proceeded in his absence, was two hours, constituting a flagrant
waste of judicial resources which
had been allocated for two days.
Locus standi
[3]
Pienaar,
the applicant in the main
application issued on 23 July 2021, essentially seeks to rescind the
winding-up order granted by the Bertelsmann
J in the application of
Benn & others v Spitskop Village
Properties Ltd
(hereinafter “Spitskop”)
on 21 August 2009. The liquidation order was granted, due to the
commercial and factual insolvency
of Spitskop following the Court’s
finding that Spitskop had 'lost its substratum’ and its ability
to continue with
business.
[4]
The applicant was not a party to the aforesaid liquidation
application. He is a former registered Financial Service
Provider who had marketed and sold investments offered by the first
respondent. He brings this application in his personal capacity
and
“on behalf of other adversely prejudiced parties in the matter,
who are Bluezone investors and previous Bluestone Financial
Service
Providers” and in his capacity as joint trustee of the
Steelpoort Debenture Trust (hereinafter “SDT”).
The
applicant describes SDT as the “rightful major creditor of
Spitskop Village Properties Ltd (in liquidation), the
major flagship
property syndication promoted by the first respondent promoters”.
[5] The
identities of the other prejudiced parties or financial service
providers are not disclosed. There is also no
indication that
the rescission application forms part of a class action.
The
co-trustee of the SDT, Matthys Izak Cronje N.O, is cited as the
eighteenth respondent. According to the applicant, he “obviously
will not consent to the application.” Mr Cronje, in life
a well-known attorney in Pretoria, is deceased. There
is no
indication on the papers that Mr Cronje was replaced as co-trustee
upon his demise.
[6] The
non-identification of the other parties who allegedly support the
applicant in his application and the absence of
the eighteenth
respondent as applicant raises the question whether Pienaar has the
necessary
locus standi
to institute the application.
[7]
The question of
locus standi
is in a sense procedural, but it
is also a matter of substance. It concerns the sufficiency and
directness of a person's interest
in the litigation to be accepted as
a litigating party. It is also related to the capacity of
a person to conclude
a jural act. Sufficiency of interest depends on
the facts of each case and there are no fixed rules. The
general rule is
that it is for the party instituting proceedings to
allege and prove its
locus standi
, and the onus of
establishing it, rests on that party. It must accordingly appear
ex
facie
the founding papers that the parties have the necessary
legal standing (
locus standi in
iudicio
). (see
in this regard
Mars Inc v
Candy World
(Pty) Ltd
[1990] ZASCA 149
;
1991 (1) SA 567
(A)
p. 575
and
Kommissaris van Binnelandse
Inkomste v Van der Heever
[1999] 3 All SA 115
(A),
1999 (3) SA 1051
(SCA) para.
10
].
[8] It was held in
Giant Concerts CC v Rinaldo Investments (Pty) Ltd and others
2013
(3) BCLR 251
(CC) para. 32 that the issue of
locus standi
is
divorced from the substance of the case and must be determined before
the merits are considered.
[9]
According to
Mabuza v Nedbank Ltd
2015 (3) SA 369
(GP) a
party claiming rescission of a
judgment need not have been a party to the original matter but must
establish a direct and substantial
interest in the matter which would
have entitled that party to have intervened in the matter in which
the judgment was given.
For the reasons mentioned
in paragraph [3] to [6] above, Pienaar is unable to show
sufficiency
and directness of interest in the litigation
to
have launched his application for rescission. He faces the
additional hurdle of section
354(1)
of the Companies Act which inhibits him from bringing the
application
, as he was
and
is not a liquidator, creditor or member of Spitskop.
[10] It
would be improper to allow a person who on his own version has no
locus standi
to pursue litigation without putting up security
for costs. For this reason alone, I would be inclined to grant
the relief
sought by the liquidators and the SARB group.
Vexatious litigation
[11]
Even
if Pienaar had
locus
standi
to launch the rescission application, he woefully fails to put
forward any legal grounds on which the judgment of Bertelsman J
can
be impugned and consequently be set aside.
[12]
After the liquidation of Spitskop, the twentieth respondent in this
application, Daniel Frederich Burmeister, and Leseding
Development
(“Leseding”) brought an application to place Spitskop
under supervision and to commence business rescue
proceedings
pursuant to
s 131(4)(a)
of the
Companies Act 71 of 2008
as well as
for the appointment of a business rescue practitioner for that
purpose. Makgoka J dismissed the application with costs
on 16
September 2015. Contrary to Pienaar’s averment as to the
identity of the major creditor, Makgoka J described the South
African
Revenue Service as Spitskop’s major creditor.
[13] The applicant,
in his representative capacity as trustee of SDT (but without the
cooperation of his co-trustee Mr Cronje)
and Leseding brought an
unsuccessful urgent application to stay the sale of the immovable
property that Spitskop had intended to
develop on 27 September 2016,
under case number 73558 / 2016
[14] The applicant
brought an application to rescind this order of Makgoka in person in
December 2016. On 7 February
2019, the applicant and
Leseding filed a “notice for condonation, amendment of
pleadings and documents and a special case
for adjudication upon
points of law” under case number 73558 / 2016. This was
followed by a “notice to request
National Prosecuting
Authorities (sic) to join proceedings and/or ask the Honourable Court
to appoint a curator to protect victims
of crime” under the
same case number filed by the applicant and Leseding on 12 April
2019. The applicant and Leseding
brought another application to
rescind the judgment granted by Makgoka J on 3 June 2019 under case
number 73558 / 2016. This
last application also served as
“notice to oppose the first to fourth respondents from seeking
taxation of their account
dated 13 May 2019.”
[15] The applicant
did not follow up on any of his notices or his and Leseding’s
applications to institute litigation
procedures under case number
73558 / 2016. This matter remains inchoate. Whether any
of these notices had any prospect
of success is in any case an open
question. Lay litigants should at least enlighten themselves
about rules of practice in
courts as inter alia contained in the
Uniform Rules of Court and Practice Directives applicable in the
various Divisions of the
High Court before haphazardly launching a
lawsuit.
[16] The present
application for security of costs pertains to the applicant’s
main application, which seeks to rescind
the winding-up order granted
by the Bertelsmann J in the application of Benn & others v
Spitskop Village Properties Ltd (hereinafter
“Spitskop”)
on 21 August 2009. The liquidators argue that it would be a
time-consuming exercise to investigate and
consider the allegations
traversed in the applicant’s founding affidavit, issued on 23
July 2021. I agree: not only does
it consist of 291 pages, but it
would involve the perusal of a vast amount of historic litigation,
spanning over almost a decade.
Processing all this information is
expected to take weeks before a comprehensive answering affidavit can
be prepared.
[17] The
liquidators are only directly involved in and/or affected by the
relief sought in prayers 1.2, 1.9 and 1.13. Although
the majority of
the remaining prayers (or proposed orders) may be incompetent and
devoid of any factual and/or legal foundation
or even riddled with
subjective opinions (as the liquidators contend), the manner in which
the prayers are formulated does not
and should not play any role in
the decision whether the applicant should be ordered to put up
security for costs.
[18] The SARB group
alleges in their founding affidavit that Pienaar’s general
dissatisfaction with the fact that property
syndication schemes in
respect of which he acted as a broker have collapsed, lies at the
root of his litigation against the SARB
and various other parties.
Investors in these schemes lost substantial sums of money, and the
Ombud for Financial Services Providers
has held the brokers
responsible for the investments made by the deceived investors and
ordered the brokers in question to pay
back the funds to investors.
The SARB group therefore argues that Pienaar had brought the main
application to avoid liability.
[19] The grounds
for the rescission of the winding-up order of Spitskop are not
clearly set out in the voluminous founding
affidavit. It starts
by informing the reader that the “document serves as an
investigation as well as an application
where evidence is given of
criminal conduct and averments. This document had to elaborate on
very complex white-collar corruption
that involves various parties,
and for this reason the application is lengthy.” The
affidavit traverses the history
of the registration of
Bluezone
Property Investments (Pty) Ltd as a product supplier in property
syndication and its involvement in various projects. Seemingly
(because the deponent assumes that the reader knows thereof), at some
stage, the FSB, the predecessor of the Financial Sector Conduct
Authority, the FSCA, and the SA Reserve Bank conducted investigations
into Bluezone’s affairs. Allegedly, the SA Reserve
Bank
investigation included more entities than just Spitskop.
According to Pienaar, the Reserve Bank should not have focused
on the
Spitskop estate, but rather Bluezone and related estates.
Pienaar is of the view that the rule of law was not
applied when
Spitskop was liquidated in isolation but fails to properly apply this
principle. He continues to elaborate at
length on the reasons
for this contention, alleging and accusing various entities,
institutions and persons of criminal conduct.
[20]
On a close reading of the founding affidavit, it is impossible to
determine what the actual legal grounds for the rescission
of the
winding up order would be. It is not brought in terms of Rule
31 or Rule 42. If it were brought in terms of
the common law,
there is no discernible causa.
[21] It
was held in
Boost
Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd
2015
(5) SA 38
(SCA)
at
paragraph 16 that in order for security for costs in terms of
Rule
47
to
be ordered to be furnished, it must be established that the relevant
party is acting vexatiously in prosecuting the main application.
[22]
As a general rule the doors of court will not be closed to a
litigant, since to
deprive a litigant access to justice may offend the constitutional
right of access to justice and give rise to injustice, unfairness
and
discrimination. There are however exceptions to the
general rule as the Constitutional Court noted in
Beinash
and Another v Ernst & Young and
Others
1999
(2) SA 116
(CC)
:
“
Indeed,
as the respondents argued, the court is under a constitutional duty
to protect
bona fide
litigants, the processes of the courts
and the administration of justice against vexatious proceedings.
Section 165(3) of the Constitution
requires that “[n]o person
or organ of state may interfere with the functioning of the courts.”
The vexatious litigant
is one who manipulates the functioning of the
courts so as to achieve a purpose other than that for which the
courts are designed.
This limitation serves an important purpose
relevant to section 36(1)(b). It would surely be difficult to
anticipate the litigious
strategies upon which a determined and
inventive litigator might embark. Thus there is a requirement for
special authorisation
for any proposed litigation.”
[23]
This manipulation of the functioning of the courts to achieve a
purpose other than that for which the courts are designed
lies at the
heart of the SARB group’s argument, as I have indicated above.
Pienaar does not seek the rescission of
Spitskop’s winding up
but uses that as the basis to fire a broadside at the SARB group.
[24]
In
Bisset and Others v Boland Bank Ltd and Others 1991
(4) SA 603 (D)
the court considered the
meaning of vexatious:
“
Vexatious
in this context means 'frivolous, improper, instituted without
sufficient ground, to serve solely as an annoyance
to the
defendant'. (
Fisheries
Development Corporation of SA Ltd v Jorgensen and Another,·
Fisheries Development Corporation of SA Ltd
v AWF Investments (Pty)
Ltd and Others 1979 (3) SA 133 (W)
.)
This power to strike out is one which must be exercised with very
great caution, and only in a clear case. The reason
is that
the courts of law are open to all, and it is only in very exceptional
circumstances that the doors will be closed upon
anyone who desires
to prosecute an action. (
Western
Assurance Co
case
supra
at 273,
Fisheries
Development
case
supra
at 1338G.) Whilst an action which is obviously unsustainable is
vexatious, this must appear as a certainty and not merely
on a preponderance of probability (
Ravden
v
Beeten
1935
CPD 269
at
276;
Burnham
v
Fakheer
1938
NPD 63
;
African Farms
case
supra
at 565D E).”
[25]
I am
mindful of the caution advanced in the matter of
Member
of the Executive Council for the Department of Co-operative
Governance and Traditional Affairs v Maphanga (652/2018)
[2019] ZASCA
147
;
[2020] 1 All SA 52
(SCA);
2021 (4) SA 131
(SCA) (18 November
2019),
where the court said
:
[25]
It was firmly established in the South African common law, long
before the advent of the Constitution, that the Supreme Court
had the
inherent power to regulate its own process and stop frivolous and
vexatious proceedings before it. This power related solely
to
proceedings in the Supreme Court and not to proceedings in the
inferior courts or other courts or tribunals. The following
principles crystallised over the ages.
It
had to be shown that the respondent had ‘habitually and
persistently instituted vexatious legal proceedings without
reasonable
grounds. Legal proceedings were vexatious and an abuse of
the process of court if they were obviously unsustainable as a
certainty
and not merely on a preponderance of probability. I must
point out at this juncture that this definition applied to all
litigation
that amounted to an abuse of court process. The attempt by
the MEC’s counsel to distinguish the cases from which the
principle
derives on their facts was, therefore, mistaken.
[26]
A court must, in granting this type of relief, proceed very
cautiously and only in a clear case, make a general order prohibiting
proceedings between the same parties on the same cause of action and
in respect of the same subject matter where there has been
repeated
and persistent litigation, and craft such order to meet only the
immediate requirements of the particular case.
The
stringent onus on the applicant who seeks the relief and the need for
the court’s caution in exercising this power obviously
arise
from the fact that the relief curtails a litigant’s access to
court
[26] I am, however,
persuaded that this is a clear case in which the court must infringe
on the applicant’s right to
continue the application for
rescission based on the vexatious nature of his application. I
hold that the following reasons
are persuasive why the application
before this court stands to be declared vexatious:
[26.1]
The first reason is
that the applicant was not a party to the liquidation
application
that served before Bertelsman J in August 2009. It is therefore
incumbent on him to show more than a mere interest
in the matter to
be able to join as an intervening party in the application.
The test for intervention is well established. In National
Director of Public Prosecutions v Zuma,
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at para
[85)
it was held that:
"Nevertheless, to be
able to intervene in proceedings a party must have a direct and
substantial interest in the outcome of
the litigation, whether in the
court of first instance or on appeal. The basic problem with the
application is that the applicants
have no interest in the order but
only in the reasoning. They are in the position of a witness whose
evidence has been rejected
or on whose demeanour an unfavourable
finding has been expressed. Such a person has no ready remedy,
especially not by means of
intervention. To be able to intervene in
an appeal, which is by its nature directed at a wrong order and not
at incorrect reasoning,
an applicant must have an interest in the
order under appeal. The applicants do not have such an interest."
Although the matter
before this court is an application for rescission and not an appeal,
the same principles apply. An application
for rescission is directed
at a wrong order, as in the case of an appeal. The applicant
has no direct and material interest
in the outcome of the liquidation
application. He is a removed bystander who professes to act on
behalf of interested parties.
[26.2]
The second reason is that the application for rescission was brought
in
July 2021, twelve years after the winding-up order was granted.
A central and
pervading tenet of the judicial system is that matters, once
resolved, are not to be reopened except in a few, narrowly
defined
circumstances, like fraud. Accordingly, to launch a rescission
application twelve years after the fact, without even remotely
attempting to substantively address the reasons for the delay, as is
the case in this matter, flies in the face of the principle
of
finality of litigation.
[26.3]
The third reason is
that Makgoka J, held in September 2015 that there was
no basis for
Spitskop’s resurrection from the ashes. Pienaar did not
appeal this judgment but brought two rescission
applications to
rescind the order in September 2016 and June 2019. However, he
failed to prosecute these applications for
recission. When a litigant
commences proceedings, the opponent is put to the task to defend the
proceedings and incurs costs in
doing so. The failure of a litigant
to prosecute the matter to finalisation not only has adverse
financial implications for the
opposing party but also adds to the
already cluttered court rolls, leading to further delays in court
dates.
[26.4]
The fourth reason is
that Pienaar purports to act as a trustee of a trust,
which is
dysfunctional, as the co-trustee has not been replaced after his
demise. In
Shepstone
and Wylie Attorneys v Abraham Johannes de Witt NO and other
[2025]
ZACC 14
(1
August 2025)
,
the Constitutional Court held that trustees must act together
unless the trust deed provides differently. Pienaar’s
averment that the Master of the High Court refuses to assist him in
appointing a co-trustee does not address the fundamental issue
that
prevents him from representing the trust.
[26.5]
Pienaar inter alia
fails to illustrate that no undesirable consequences
will result from
the rescission of Spitskop.
The
main reason for the liquidation of Spitskop, according to Bertelsman
J, was the disappearance of the company’s substratum.
It was at least expected from Pienaar to show why the substratum of
Spitskop had not disappeared. Although he criticises
the
finding of the learned Judge in respect of the disappearance of the
substratum in his founding affidavit, he fails to advance
any
argument to dispel the finding.
[27]
The Western Cape High
Court on 10 September 2021 in
Pricewaterhouse
Coopers Inc v Pienaar and Others (1845/2021)
[2021] ZAWCHC 184
declared the
applicant t
o be a vexatious
litigant as contemplated in section 2(1)(b) of the Vexatious
Proceedings Act, 3 of 1956 and prohibited him from
instituting any
legal proceedings against the applicant in that application
“
or
any of its employees or agents, particularly the second, third, and
fourth respondents;
relating
to or concerning:
2.3 generally
any Property Syndication Scheme in South Africa; and
2.4 particularly
their appointment to provide services to either fifth or sixth
respondents;
without
the leave of the court, or any judge thereof and such leave shall not
be granted unless the court or judge, as the case
may be, is
satisfied that the proceedings are not an abuse of the process of the
court and that there is a prima facie ground for
the proceedings.”
[28]
T
he
goal of the Vexatious Proceedings Act is to protect the court and
opposing parties from further abuse of the court process.
A
declaration as a vexatious litigant is generally
not
retrospective
in
the sense that it voids past legal actions, but it is based on a
retrospective analysis of a person's history of litigation. This
general rule prevents a defendant or respondent from approaching the
court to frustrate litigation that has already commenced.
Security
for costs
[29] The
available remedy for a defendant or respondent to thwart litigation
where it has already commenced is to apply for
security for costs.
It
is trite law that the courts have a discretion to grant or refuse an
application for security, and in coming to a decision, will
consider
the relevant facts of each case.
In
Shepstone & Wylie and Others v Geyser NO
1998 (3) SA 1036
(SCA)
1046A-D
in deciding whether security for costs should be granted approved of
the approach in
Keary
Developments Ltd v Tarmac Construction Ltd and Another [1995]
3 All
ER
534
(CA)
at 540a-b, where Peter Gibson LJ said:
"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 finds himself
unable to recover from the plaintiff the
costs which have been
incurred by him in his defence of the claim."
These
are probably the "considerations of equity and fairness"
mentioned in Magida v Minister of Police 1987(1) SA 1 (A)
at 14D-F in
regard to the consideration of an application for security for costs
against a peregrinus, and which should, in my
judgment, also prevail
in an application under sec 13
.
[30] Pienaar
is on his own version, a man of straw. The applicants in the present
application have, to date, been unable to
recover any costs for any
of the applications brought by Pienaar. This state of affairs,
however, does not
per se
entitle a respondent or defendant to
security for costs. Something more is required.
[31]
Pienaar professes to act as a representative of “other
adversely prejudiced parties in the application, who were Bluezone
investors and previous Bluezone Financial Service Providers”’.
In
Hepute and Others v Minister of Mines and Energy 2008(2) NR 399
(SC)
the Namibian Supreme Court said -
“
[23]
Our common law recognises, as a general rule, the immunity enjoyed by
an incola plaintiff or applicant from having to provide
security for
costs. The ratio behind this rule is that every citizen should have
uninhibited access to the courts: Vanda v Mbuqe
and Mbuqe; Namoyi v
Mbuqe
1993 (4) SA 93
(TK) at 94F - 95B. One exception to this general
rule, founded in my view on the principle that the process of the
court should
not be abused, is that an incola who is a man of straw
and litigates in a nominal capacity, or as a front for another, may
be ordered
to furnish security: Pillemer v Israelstam and Shartin
1911 WLD 158
; Vanda v Mbuqe supra at 94J - 95A, and the obiter dictum
in Mears v Brook's Executor and Mears's Trustee
1906 TS 546
at 550.
[24] I agree with Muller
J that the implicated exception creates two discrete categories:
while being a man of straw litigating
in a nominal capacity, or while
being a man of straw being put up as a front for another. Both
instances would amount to an abuse
of the process of the court. There
is, or ought to be, a distinction between being a nominal plaintiff
and being a front. In my
view, a nominal plaintiff/applicant is one
who, although he might be entitled to maintain the action, has no
interest in the subject
matter of the cause such as the case was in
Mears' case supra at 550. A front, on the other hand, is one who is
being used to shield
another from the adverse consequences of
litigation. In both respects, the principle underlying the rule is
sound and is founded
on the public policy consideration that the
abuse of the process of the court should be frowned upon: it is not
fair to allow a
plaintiff with no real interest in the litigation to
drag another through litigation while being unable to meet an adverse
costs
order at the end of the day; and it is equally unfair to allow
a party who has an interest in the litigation to use a poor man (who
also has an interest) and in so doing hedge itself against an adverse
costs order. It needs to be understood very clearly that
in the
application of the exception, a person is not ordered to pay costs
because he or she is poor but because, while being impecunious,
he or
she is either a nominal plaintiff/applicant or is being used as a
front by another. Poverty, without more, is no bar to seeking
justice.
[25] A
defendant/respondent who wishes to obtain security for costs on the
strength of the implicated exception should, on balance
of
probability, show that the plaintiff/applicant is poor and is, in
addition, a nominal litigant or a front for another party.
If the
jurisdictional facts are established for the invocation of the
exception, the court may order security for the costs of
the
defendant/respondent upon application therefore”.
[32] There are thus
two requirements which an applicant for security would need to meet
in an application of this nature.
Firstly, it would need to be
established that the plaintiff is either a nominal plaintiff or a
front for another party and secondly
that the plaintiff is a “man
of straw”. Both these requirements are met. On
Pienaar’s version he
does not only professes to act for a
trust, but represents Bluezone investors and financial service
providers.
[33]
It is not my duty to adjudicate the merits of the rescission
application.
For
the reasons above I am however satisfied that Pienaar should be
ordered to put up security before he is allowed to continue
his
application for rescission of judgment.
As
Wunsch J observed in
D-Jay
Corporation CC v Investor Management
Services
1996
CLR 854
(W)
at 861-
“
They
(the rules for the furnishing of security for costs) are, in any
event, a matter of practice of the courts and not substantive
law
(see
Africair
(Rhodesia) Ltd v Interocean Airways SA
1964
(3) SA 114
(SR)
at 116 G and cases there cited). Against the general rule referred to
in
Van
Zyl v Euodia Trust (Edms) Bpk
, supra
1
that
an incola should have unrestricted access to the courts should be
weighed the principle, which applies in South Africa as much
as in
England, ‘that the system of justice which prevails in this
country is founded on the premise that the interest of
justice are
ordinary best served if successful litigants recoup the costs of
their litigation, or the bulk of those costs, and
unsuccessful
litigants pay them’
(
Keary
Developments Ltd v Tarmac Construction Ltd
(1995)
3 All ER 534
(CA)
at 536c), which is the approach on which section 13
2
is
based.”
[34]
Pienaar did not dispute the amounts claimed by the liquidators and
the SARB group. It is therefore not necessary
to refer the
matter to the Registrar for the determination of the amounts to be
put up for security.
[35]
If Pienaar, as a result of his financial position, is unable to set
up security within the time stipulated in the order,
the applicants
for security of costs are granted leave to approach the court for
dismissal of the rescission application issued
by Pienaar on 23 July
2021.
I
make the following order:
1.
The applicant, Deon Johan Pienaar, is
ordered to furnish security for the first, twelfth and thirteenth
respondents’ costs
in the amount of R500 000.00 (Five
Hundred Thousand Rand) within 10 (ten) days from date of this order.
2.
The applicant, Deon Johan Pienaar, is
ordered to furnish security for the second to fourth respondents’
costs in the amount
of R900 000.00 (Nine Hundred Thousand Rand)
within 10 (ten) days from date of this order.
3.
In the event that the applicant fails to
comply with paragraph 1 & 2 of this order, the for the first,
twelfth and thirteenth
respondents and the second to fourth
respondents respectively are granted leave to approach the court on
the papers filed in the
Rule 47 application, appropriately amplified,
for an order dismissing the application for rescission brought by the
applicant and
issued on 23 July 2021.
4.
The applicant is ordered to pay the
costs of the application, including the costs of two counsel where
employed, on Scale C.
T
P KRÜGER AJ
Acting
Judge of the High Court
Appearance for the
applicant:
None
Heads of argument drafted
by the applicant in person
Counsel
for the
first, twelfth and thirteenth
respondents J Vorster SC
Instructed
by JI van Niekerk
per Mr JI van Niekerk
Counsel
for the second to fourth respondents:
EL Theron SC
A Milovanovic-Bitter
Instructed
by GMI
Inc
per Ms R Shamout