IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case No: 20219/2013
In the matter between:
ABU MUNSHI Plaintiff
and
MUHAMAD FUAD JOHNSON N.O. First Defendant
YASMIN JOHNSON N.O. Second Defendant
ERIC MICHAEL MARX N.O. Third Defendant
in their capacity as the trustees for the time being of
THE JOHNSON FAMILY TRUST (IT 3241/97)
Coram: FAGAN, AJ
Heard on: 26 May 2026
Delivered on: 9 June 2026
Summary:
The plaintiff applied for leave to amend his particulars of claim. The defendants
applied for security for costs. The two interlocutory applications were heard together.
The defendants alleged that the amendment was sought in bad faith and in the
context of abusive litigation , particularly because a previous notice of intention to
amend, to which the defendants had objected, was not pursued further, instead of
which the plaintiff a considerable time later served a fresh notice of intention to
amend.
The amendment would remove an incorrect allegation in the plaintiff’s replication,
thereby vindicating the defendants’ rejoinder. It is not in bad faith. Furthermore, as
the two notices of intention to amend are materially different from one another,
neither bad faith nor an abuse of process has been shown by the defendants.
The application for security for costs does not allege an inability on the part of the
plaintiff to satisfy an adverse costs order. The question arises whether it is necessary
to show such inability where the plaintiff is an incola.
The reasoning in Fitchet v Fitchet 1987 (1) SA 450 (E), where security for costs was
awarded despite an inability to pay not having been shown, is not altogether clear,
and there are policy reasons against awarding security in those circumstances.
Evidence of an incola plaintiff’s inability to satisfy an adverse costs order is therefore
required for an award of security for costs.
In any event, the onus of proving vexatiousness has not been discharged. The
defendants have not explained why they did not take steps to bring the matter to
trial.
ORDER
1. The plaintiff’s application for leave to amend as set out in the notice of
intention to amend dated 11 December 2025 is granted.
2. The plaintiff is to pay the costs of the application, including the costs of
counsel on scale C.
3. The defendants’ application for security for costs is refused.
4. The defendants (in their capacity as trustees for the time being of The
Johnson Family Trust) are to pay the costs of the application, including the
costs of counsel on scale C.
JUDGMENT
FAGAN, AJ:
Introduction
1. The plaintiff, Mr Abu Munshi, has applied for leave to amend the particulars of
his claim. The defendants, who are the trustees for the time being of The
Johnson Family Trust, resist the amendment.
2. In turn, the defendants have applied for an order that the plaintiff give security
for costs, on the grounds that his case against them is vexatious.
A history of the pleadings
3. The plaintiff alleges in his particulars of claim that an agreement of sale of
shares was concluded in September 2009 with the Johnson Family Trust. He
alleges further that he cancelled the agreement on 19 November 2009. The
plaintiff on that basis claims repayment of the purchase price of the shares ,
being the amount of R3 million.
4. Summons was issued on 6 December 2013.
5. The defendants have raised prescription as a special plea. They allege that
on his own version the plaintiff’s right to claim restitution on cancellation
accrued, and the debt in respect of restitution became due, by no later than
18 November 2010, being a month from when on the plaintiff’s version the
defendants should have transferred the shares to him.
6. On 3 August 2021 a replication to the special plea of prescription was
delivered. In paragraph 6 of the replication it is asserted that the defendants
had wilfully prevented the plaintiff from knowing of the existence of the debt,
with the result that in terms of section 12(2) of the Prescription Act 68 of 1969
prescription did not commence to run until the plaintiff became aware of the
debt. The plaintiff’s claim would on that basis not have prescribed.
7. There are ten subparagraphs to paragraph 6, setting out facts and
circumstances on which the plaintiff intended to rely in support of the
allegation of wilful prevention. Paragraph 6.1 refers to an email from the
defendants to the plaintiff of 3 November 2008 which, according to the
plaintiff, constituted a representation by the defendants that the shares had
been transferred to him. The plaintiff goes on to replicate that the defendants
intended for him to rely on the representation (paragraph 6.2); and that he
relied on the truth of the representation and was thereby induced to believe
that the shares had indeed been transferred to him (paragraph 6.3).
8. In a rejoinder filed on 23 August 2021 the defendants den y that the email
constituted a representation that the shares had been transferred to the
plaintiff, saying that it plainly related to a different transaction. Moreover, rejoin
the defendants, the email (November 2008) predated the sale agreement
(September 2009).
9. On 19 June 2024 the plaintiff delivered a notice of intention to amend
paragraph 6 of his replication.
10. On 19 July 2024 the defendants objected to the proposed amendment.
11. After the notice of objection was served, t he plaintiff did not take any steps to
amend the replication pursuant to his notice of 19 June 2024.
12. Instead, the plaintiff o n 11 December 2025 gave notice afresh of his intention
to amend the replication.
The application for leave to amend
13. The notice of intention to amend of 11 December 2025, and therefore the
present application for leave to amend, seek s to make some minor
amendments to the introductory section of paragraph 6 of the replication .
These are uncontentious.
14. Paragraphs 6.1 to 6.3 of the replication are, in the notice of intention to
amend, deleted in their entirety and replaced by new paragraphs 6.1 to 6.5.
Paragraphs 6.4 to 6.10 of the existing replication are renumbered as
paragraphs 6.6 to 6.12.
15. The new paragraphs 6.1 to 6.5 do not refer to any specific representations.
Instead, it is alleged in general terms that the defendants at all relevant times
made it clear to the plaintiff that the share transfer process was ongoing
(paragraph 6.1). The plaintiff was under the impression that if the shares had
not already been transferred to him, they were about to be transferred
(paragraph 6.2) . The defendants intended the plaintiff to rely on the
representations (paragraph 6.3) . The plaintiff did rely on the truth of the
representations and was thereby induced to believe that the shares had bee n
transferred to the Munshi Development Trust (paragraph 6.4). The defendants
at all relevant time s assured the plaintiff that the de facto situation was that
the shares had been transferred to the Munshi Development Trust (paragraph
6.5).
16. It is necessary to explain the Munshi Development Trust. In paragraphs 6.4
and 6.5 of the existing replication (which would be paragraphs 6.6 and 6.7 of
the amended replication) it is alleged that on or about 16 April 2010 the
plaintiff instructed the defendants to cause the shares to be transferred from
his name to that of the Munshi Development Trust, and that the defendants
undertook to ensure that this was done.
17. The defendants advance d two grounds for their objection to the proposed
amendment. The first is that the proposed amendment is not bona fide. The
defendants say that there has been a material change, as between the
current replication and the notice of amendment, in the allegations as to how
the defendants wilfully prevented the plaintiff from coming to know of the
existence of the debt.
18. The second is an omnibus ground which refers in the heading to
vexatiousness and abuse of process, and goes on to: refer to the laggardly
way in which the plaintiff has conducted the litigation; describe the new notice
of intention to amend as an impermissible attempt to circumvent the need to
apply for leave to amend pursuant to the objection to the first notice of
intention to amend and to explain the delay in bringing that application;
contend for prejudice by way of harassment, the need to incur legal costs, and
the probability that witnesses’ memories will have faded by the time the matter
comes to trial; and maintain that the plaintiff must explain the reason for the
excessively slow progress of the action and demonstrate his genuine intention
to proceed to trial with all possible expedition.
19. The plaintiff then brought an application to amend in terms of rule 28(4) of the
Uniform Rules of Court.
20. In the founding affidavit the plaintiff responds to the first ground of objection
by saying that the substance of his replication remains the same , namely that
the defendants wilfully prevented him from coming to know of the debt. He
the defendants wilfully prevented him from coming to know of the debt. He
accepts the correctness of the rejoinder regarding the email of 3 November
2008, and says that it was necessary to remove the factually wrong assertion
that had been made and to place the correct facts before the Court.
21. He responds to the second ground of objection by seeking to explain why it
took so long to prepare the notice of intention to amend. Regarding the first
notice of intention to amend, the plaintiff explains that on receipt of the notice
of objection he was advised not to proceed with it, but rather to prepare a new
notice. He contends that the first notice of intention to amend became
inoperative when he did not pursue th at amendment after the objection to it
had been received, and that there is nothing to preclude him from filing a fresh
notice of intention to amend.
22. In answer, the defendants repeat the two of grounds of their objection. The
contention that there is nothing which precludes a party from seeking a new
amendment where a previous notice of intention to amend was not pursued,
say the defendants, is correct as far as it goes, but does not apply to the
situation where the new notice of intention to amend is in identical terms to
the first notice. In those circumstances one is dealing not with an
abandonment of the first notice, but only with a failure timeously to bring an
application.
23. In reply, the plaintiff points out this difference between the first and the second
notice of intention to amend: whereas the first notice deleted the entire
paragraph 6 of the replication, including paragraphs 6.4 to 6.10, the second
notice retains these subparagraphs. He testifies further that he has been
unable to find a document in his records similar to the one that he erroneously
relied on in the replication, but says that he has managed to find others that
will be provided in evidence together with his oral evidence of discussions he
had with the first defendant and an auditor regarding the transfer of the
shares. He does not attach to the replying affidavit the other documents he
shares. He does not attach to the replying affidavit the other documents he
says he found; nor does he set out the nature of the discussions on which he
intends to rely.
24. Whilst applications to amend are subject to the exercise of a judicial
discretion, it is a long -established rule of practice that amendments will be
allowed, save where the application to amend is mala fide or the amendment
would cause an injustice to the other party that cannot be compensated by an
appropriate costs order ( Moolman v Estate Moolman 1927 CPD 27 at 29, the
relevant passage being quoted with approval, for instance, by the
Constitutional Court in Ascendis Animal Health (Pty) Ltd v Merck Sharp
Dohme Corporation and others 2020 (1) SA 327 (CC) para 89).
25. The two exceptions to the general rule are what the defendants rely on in their
two grounds of objection.
26. The defendants say that the proposed exception is mala fide because it
constitutes a change of tack that has not been explained. They refer to Trans-
Drakensberg Bank Ltd (under judicial management) v Combined Engineering
(Pty) Ltd and another 1967 (3) SA 632 (D) at 641A, where Caney J held that a
party who has already made out a case on the pleadings must explain the
reason for changing or adding to that case, and cannot be allowed to harass
the opposing party by an amendment which lacks any foundation or by raising
an issue for which there is no supporting evidence. The defendants invoke,
too, the authority of this Division in Hansen v Concor-Grinaker (Pty) Ltd 1974
(4) SA 27 (C) at 29G -H, where Burger AJ held (on the facts of that case) that
a court, when considering a proposed amendment, must decide whether the
existing pleading ‘is merely due to inadvertence or a mistake or whether the
plaintiff has in fact changed his attitude and now seeks to qualify an
unqualified statement which he originally made, and it is possible that this
unqualified statement may well have been made deliberately and not by way
of mistake’.
27. The plaintiff has explained in his founding affidavit that he made a mistake by
referring in the replication to an email which predated the sale agreement. He
referring in the replication to an email which predated the sale agreement. He
seeks to remedy this by removing the reference to that email and replacing it
with the new paragraphs 6.1 to 6. 5. In his replying affidavit he says that he
confused two transactions in placing reliance on that email and that ‘the
innocent mistake does not cast any doubt on my credibility and the bona fides
of the version foreshadowed by the intended amendment’.
28. I do not see how the reference to an email which predated the sale agreement
can have been anything but a mistake. The email clearly cannot sensibly be
relied on as evidence of a representation that w ould for the purposes of
resisting the special plea of prescription have had to be made after the
conclusion of the sale agreement.
29. By deleting the reference to that email, the plaintiff vindicates the defendants’
rejoinder. No bad faith attaches to that deletion.
30. What is sought to be inserted by way of the new paragraphs 6.1 to 6.5 is fairly
mundane. In general terms, the plaintiff alleges that the defendants brought
him under the impression that the shares were going to be transferred to him;
that the defendants intended for him to rely on representations to that effect;
and that the defendants assured him that the shares had been transferred to
the Munshi Development Trust.
31. There is therefore no change in attitude or significant addition to the case as it
appears from the current replication ; a nd support for these general
propositions is to be found in the allegations contained in the original
paragraphs 6.4 to 6.10, which the plaintiff intends to retain and renumber.
32. Ideally, the plaintiff should have been more specific and detailed in his
affidavits about the other documents he claims to have found and the
discussions he claims to have had (cf Trans-Drakensberg Bank loc cit ). His
reliance on the existing paragraphs 6.4 to 6.10 however means that his failure
in that regard is insufficient to demonstrate a lack of bona fides.
33. Given the deletion of the offending allegation from the replication and the
mundane nature of what the plaintiff seeks to insert, the amendment would
not cause an injustice to the defendants. Even if there had been any injustice,
an appropriate costs order would certainly have been capable of
compensating for it. The trial has not yet commenced, and the defendants are
not hampered in their preparation by the proposed amendment.
34. One further ground on which the application to amend is opposed has been
raised on behalf of the defendants. It is contended that the plaintiff has
circumvented the requirements of rule 28(4) and rule 27 (condonation) by
simply abandoning his first notice of intention to amend, in the face of the
defendants’ objection, and substituting for it a fresh notice.
35. In response to the argument of the plaintiff that the two notices are not
identical, the defendants contend that this elevates form over substance, in
that the proposed amendments to paragraph 6 and the introduction of the new
paragraphs are identical in the two notices.
36. This however overlooks the fact that the first notice (19 June 2024) deleted
the existing subparagraphs numbered 6.4 to 6.10, whereas the second notice
(11 December 2025) retains them in renumbered form. That constitutes a
material difference between the two notices, as is apparent from what I have
said above in connection with the plaintiff’s bona fides.
The application for security for costs
37. The plaintiff is an incola. There is no evidence to suggest that he would be
unable to pay the defendants’ costs, should his action be unsuccessful.
38. The defendants seek security for costs on the basis of vexatiousness: not that
the action was always vexatious, but that the action has become vexatious
due to the plaintiff’s conduct – or want of conduct – over the many years since
it was instituted.
39. ‘An inordinate or unreasonable delay in prosecuting an action may constitute
an abuse of process and warrant the dismissal of an action’ ( Cassimjee v
Minister of Finance 2014 (3) SA 198 (SCA) para 10, citing a considerable
number of earlier judgments in support of the dictum). In the heads of
argument on behalf of the defendants, Ms Davis SC submitted that on this
principle an order for security for costs may be justified a fortiori.
40. I raised the question of whether the test for security for costs, at least where
the plaintiff is an incola, is not a different one, and referred to the recent
judgment in this Division in Cape Cash and Carry (Pty) Ltd and others v
Xtreme Works (Pty) Ltd and others 2025 (4) SA 156 (WCC), in which Janisch
AJ said that the starting point in considering security for costs ‘is the
possibility that the applicant or plaintiff may be unable to satisfy a costs order
in favour of the respondent or defendant if its claim fails’ (para 12). The Court
referred to Boost Sports Africa (Pty) Ltd v South African Breweries Ltd 2015
(5) SA 38 (SCA) para 14, where it was held that a court in an application for
security for costs will have regard to ‘the nature of the claim; the financial
position of the company at the stage of the application for security; and its
probable financial position should it lose the action’.
41. I am indebted to both Ms Davis and Mr Ferreira, who appeared on behalf of
the plaintiff, for providing me with supplementary notes on this question.
42. Ms Davis correctly points out to what Janisch AJ said in paragraph 17 of his
judgment with reference to Fitchet v Fitchet 1987 (1) SA 450 (E) . Olivier J,
having been unable to find on the papers that the plaintiff would not be able to
satisfy an adverse costs order (at 455A), n onetheless ordered the plaintiff to
furnish security on the basis of being satisfied ‘that the action is vexatious in
the sense that it is one standing outside the region of probability altogether
and is therefore incapable of succeeding’ (at 455B-C).
43. I must respectfully confess to having some difficulty in following the reasoning
of the Court in Fitchet v Fitchet , which proceeds as follows (at 454E -455B).
One: in an application for dismissal of an action on the grounds of
One: in an application for dismissal of an action on the grounds of
vexatiousness, the court ‘will require moral certainty alone that the action is
unsustainable’. Two: in an application for security for costs, on the other hand,
‘the merits test should be somewhat less stringent, and other factors, which
are irrelevant in a dismissal application, shou ld be taken into account’. Three:
the plaintiff’s ability to pay the defendant’s costs ‘is an obvious factor which
should be taken into account’. Four: the plaintiff in this matter will on the
probabilities be able to satisfy an adverse costs order. Five: therefore the
application for security for costs should be approached on the basis of
whether the action is incapable of succeeding.
44. Having started from the premise that the test that applies to an application for
dismissal is different from the test where security for costs is sought, the Court
ultimately collapses the distinction by using the test for dismissal in an
application for security for costs. Having said that the plaintiff’s ability to
satisfy an adverse costs order is a factor that should obviously be taken into
account where security for costs is sought, the Court awarded security for
costs despite finding that the plaintiff probably had that ability.
45. It is perhaps not surprising in the circumstances that Thring J in this Division
invoked Fitchet v Fitchet as his only authority for the following statement: ‘I n
order to decide this question [of liability to furnish security for costs] it was
necessary to consider first the prospects of the applicants being able to satisfy
any costs order or orders which might be made against them in these
proceedings in favour of the first respondent ’ ( Ramsamy NO and others v
Maarman NO and another 2002 (6) SA 159 (C) at 169F).
46. A defendant who is confident that the plaintiff’s case is vexatious ‘in the sense
that it is one standing outside the region of probability altogether and is
therefore incapable of succeeding’ has available to her the remedy of
dismissal. It is not apparent why such a defendant should not be obliged to
grasp the nettle and bring an application for dismissal.
47. The dilution of what is appropriately a very stringent test might otherwise
result. Ms Davis for instance submitted that, the remedy of security for costs
result. Ms Davis for instance submitted that, the remedy of security for costs
being less drastic that the remedy of dismissal, the threshold required to be
crossed in the former case should be lower than that in the latter. (To be
clear, that is not how the issue was approached in Fitchet v Fitchet : the test
for dismissal was applied without qualification.)
48. One is concerned, too, about the distinction that an application for security for
costs solely on the ground of vexatiousness makes between the foolhardy
plaintiff who is able to provide security, and therefore is able (having provided
security) to continue with her unmeritorious case, and the foolhardy plaintiff
who is impecunious and therefore unable to continue. Whilst one might quip
that the impecunious plaintiff is being protected from the consequences of her
own foolhardiness, the fundamental point is of course that the right of access
to court would be differentially available to these plaintiffs based on their
means.
49. It may be contended, in response, that this difference applies to an application
for security for costs brought against an incola plaintiff in the ordinary course:
the vexatious plaintiff who is able to provide security can continue with the
action, whereas the one who is unable to do so cannot. That would however
be to overlook the primary purpose of security for costs, which is that a
defendant in a vexatious action should not be out of pocket at the end of the
proceedings: a plaintiff should not be permitted by way of vexatious litigation
to cause her opponents to incur ‘ unnecessary and irrecoverable expenses ’
(Boost Sports Africa supra para 9 ; see also Giddey NO v J C Barnard and
Partners 2007 (5) SA 525 (CC) para 7). The limitation of the right of access to
court is justified by the importance of protecting the defendant against such
irrecoverability in what is a wholly unmeritorious case (cf Giddey NO supra
paras 8 and 30).
50. There is a balancing of the competing rights of the plaintiff (to have access to
court) and the defendant (not to be out of pocket), a balance which at the very
least shifts significantly where the defendant will be able at the end of the day
to recover legal costs.
51. I am therefore of the view that evidence of an incola plaintiff’s inability to
51. I am therefore of the view that evidence of an incola plaintiff’s inability to
satisfy an adverse costs order is required for an award of security for costs.
52. Even if I am wrong about that, though, it seems to me that t he defendants in
the present matter face this difficulty: once the action was instituted, the mere
fact that the plaintiff is dominus litis does not mean that the defendants were
not entitled and able to press for the matter to come to trial. One understands,
of course, why the defendants would not necessarily have done so: they may
well have anticipated , or at least hoped, that the matter would die a quiet
death. But I do not think that a defendant who chooses to remain supine in the
face of delay by a plaintiff in prosecuting an action can then use – at least
without providing an explanation for her own inactivity – the fact of that delay
as a ground for seeking security for costs. In Cassimjee supra para 11
Boruchowitz AJA said that one of the considerations to which a court should
have regard in considering whether to dismiss an action for want of
prosecution is ‘the reasons, if any, for the defendant’s inactivity and failure to
avail itself of remedies which it might reasonably have been expected to use
in order to bring the action expeditiously to trial’. The defendants have not
advanced such reasons.
53. Regarding the alleged vexatiousness of the plaintiff’s action, c onsiderable
reliance was placed by the defendants on the failure on the part of the plaintiff
to have pursued his initial notice of intention to amend to the stage of applying
for that amendment, and instead having served a new notice of intention to
amend. What I have said in paragraph 3 6 above about the materiality of the
differences between the two notices means that the plaintiff was not however
simply wasting time by seeking, on the second occasion, to achieve the same
amendment as previously.
54. Mr Ferreira submitted in argument that one cannot infer vexatiousness from
tardiness. As a general proposition, that must be right. More would have to be
shown, and the defendants have in my view fallen short in seeking to
discharge the onus that they bear in that respect. It is relevant to the exercise
of the Court’s discretion that t he plaintiff is 79 years of age and has been in
of the Court’s discretion that t he plaintiff is 79 years of age and has been in
poor health . Notwithstanding the lengthy period that has elapsed since the
institution of proceedings and the stop -start way in which the litigation has
been conducted, he should be allowed to proceed with his action without the
need to provide security for the defendants’ costs. The exceptional
circumstances that would justify such an order are not present here.
Costs
55. With his application for leave to amend the plaintiff has sought an indulgence.
I do not regard the opposition to the application as having been unreasonable,
particularly given the failure on the part of the plaintiff to have substantiated
the allegations in paragraphs 6.1 to 6.5 of the amended replication with the
evidence that the plaintiff claims to have.
56. There is no reason why costs should not follow the result of the defendants’
unsuccessful application for security for costs. The plaintiff, contending that
the application was so unmeritorious as to indicate mala fides on the part of
the defendants, has sought punitive costs. I am certainly unable to find that
the application was brought in bad faith.
57. The quantum of the plaintiff’s claim in the action warrants the seniority of the
counsel who appeared for the respective parties, who moreover appeared
alone, and costs on scale C are accordingly justified.
Order
58. The following order is made:
(a) The plaintiff’s application for leave to amend as set out in the notice of
intention to amend dated 11 December 2025 is granted.
(b) The plaintiff is to pay the costs of the application, including the costs of
counsel on scale C.
(c) The defendants’ application for security for costs is refused.
(d) The defendants (in their capacity as trustees for the time being of The
Johnson Family Trust) are to pay the costs of the application, including
the costs of counsel on scale C.
__________________________
E W FAGAN
ACTING JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
Appearances
For the plaintiff: A Ferreira
Instructed by: K J Bredenkamp Attorneys
For the defendants: D M Davis SC
Instructed by: Korbers Inc