2
RANDAREE, MOHAMED SALIM ISMAIL Third Applicant
KHAN, YAKOOB Fourth Applicant
and
BUZME KHALID SHAH CHISTY SABRI INT. NPC First Respondent
OMAR, NASHIR Second Respondent
KHAN-ANWARY, KANEEZ FATIMA Third Respondent
REGISTRAR OF DEEDS, JOHANNESBURG N.O. Fourth Respondent
REGISTRAR OF DEEDS, PRETORIA N.O. Fifth Respondent
JUDGMENT
CARELSE, AJ
Introduction
[1] The applicant, Buzme Khalid Shah Chisty Sabri Int. NPC, seeks an order in
terms of rule 47(3) of the Uniform Rules of Court
1 directing the first to fourth
respondents to furnish security for its costs in the application pending under this
case number in which the first to fourth respondents are the applicants, and
staying that application until the security is given (the security application).
[2] Two subsidiary applications were enrolled with the security application:
a. one by the first respondent, Bazme Khalid Shah Chisty Sabree
International NPO, in terms of rule 6(5)(e) for leave to deliver two further
affidavits (the further affidavit applications), and
b. one by the applicant in terms of rule 6(15) to strike out the first to the
fourth respondents’ answering affidavit in the security application,
alternatively identified portions thereof (the strike-out application).
1 GN R48 in GG 999 of 12 January 1965. All rules referred to in this judgment refer to the
Uniform Rules of Court.
3
[3] At the hearing, I directed the parties to argue the security application and
neither side pressed the other two. Because their outcome determines the
record on which the security application falls to be decided, and because the
joint practice note asks that all three be determined, I will briefly deal with them
first.
[4] The applicant is a non-profit company registered in 2012, which I shall refer to
as the NPC. The first respondent is a non-profit organisation registered in 2018,
which I shall call the NPO. The second to fourth respondents are office-bearers
of the NPO, each also cited as a trustee of it. No relief is sought against the fifth
to seventh respondents and they took no part in these proceedings. The roles
are reversed in the application in which security for costs is sought, which I shall
call the main application. I refer to the parties as they are cited in the security
application, and to the first to fourth respondents collectively as the
respondents.
Background
[5] The brief background that follows is common cause or not seriously disputed,
save where otherwise indicated. The similarity between the applicant and the
first respondent’s names is not coincidental. Each party claims to be the true
successor to a voluntary association which regulated itself by a constitution
adopted on 20 May 1984, shortly after the death of the revered spiritual leader
(the association). Both sides of this dispute claim to be followers of the said
spiritual leader. Whether the association came into being then, or in 1976 at the
leader’s own instance, is disputed. I express no view on it.
[6] Two immovable properties lie at the centre of the dispute between the parties.
On one hand stands the leader’s tomb, at which commemoration services and
mass prayers are held (the Mazaar property). Whereas on the other, a mosque
(the Masjid property). From those premises, meals, blankets and clothing are
distributed to the surrounding communities. Both sides treat the properties as
distributed to the surrounding communities. Both sides treat the properties as
devoted to religious and charitable purposes, and each party claims to be the
body entitled to possess, control and administer them.
4
[7] The NPC was registered in 2012 by members who say that the association had
by then become defunct and that the NPC carried its work forward. The NPO
was registered in 2018 and a trust bearing a similar name in 2019. The
respondents say that the NPO simply is the association in converted form. The
NPC, on the other hand, claims that both are recent vehicles by which the
second to fourth respondents seek to appropriate the association’s name,
standing and properties.
[8] In 2018, a dispute about possession of the Mazaar property was referred to
arbitration. On 21 April 2018, the NPC represented by Nashir Omar, the
association represented by the second respondent and the arbitrator signed a
document styled “ARBITRATION AWARD BY CONSENT OF THE PARTIES”.
It records that the NPC is the ‘controlling/administrative association’ of both the
Mazaar and the Masjid properties ‘to the exclusion of any other body or
association’ and that the NPC will manage the said properties. It further inter
alia identified the directors of the NPC, its interim chairman, set a date by which
the NPC had to hold an AGM and provided that the said award ‘is final and
binding on the parties and it is not appealable’. The respondents say the
document misrepresented what had been agreed orally, that the second
respondent signed one of five copies before appreciating this, and that the
arbitration remains unresolved . It is common cause that no application has
been brought to set aside the arbitration award under s 33 of the Arbitration
Act
2.
[9] On 18 April 2019, this court granted the NPC an urgent interdict restraining the
NPO and the second respondent from interfering with the NPC’s operations at
the properties. On 8 February 2022, a further order was granted by Twala J
against the first to fourth respondents, who were all represented by attorneys
and counsel. It records on its face that it was made ‘[b]y agreement between
the parties’. This order continued the interdicts and awarded the NPC its costs.
the parties’. This order continued the interdicts and awarded the NPC its costs.
Those costs were taxed on 7 June 2022 at R 127 429,45 and warrants of
execution were issued against all four respondents. On 3 August 2022, the
Sheriff executed the warrants against the NPO and the second respondent. The
2 42 of 1965.
5
returns record against the NPO: “NO ATTACHABLE ASSETS” and against the
second respondent, a return of nulla bona.
[10] The respondents launched the main application in September 2022, after the
execution of the warrants. Its founding affidavit states that the primary purpose
of the application is to set aside the conversions in terms of s 3(1)(v) of the
Deeds Registries Act
3 by which ownership of the properties came to be
registered in the name of the NPC and to convert ownership thereover to the
NPO (the conversions). Following such relief, the respondents intend to ask
that all previous orders by this court attached to the Notice of Motion be set
aside or varied to release the respondents and, in particular, members of the
NPO from any prior interlocutory relief which was sought based on fraud.
[11] The respondents contend that the conversions were procured by fraud, inter
alia relying on a letter of the Acting Registrar of Deeds recording that a
complaint should be lodged with both Registrars of Deeds ‘to formally
investigate the internal process and escalate to SIU’ and that ‘[t]he affected
conveyancer must be referred to LPC’. The NPC denies any fraud. That dispute
belongs to the court that hears the main application and nothing in this judgment
concerns its merits.
[12] The applicant opposed the main application, which then lay dormant for years.
Neither side is blameless for that delay. During April and May 2024 the Sheriff
executed the warrants against the third and fourth respondents. The return
against the third respondent was one of nulla bona, and the attachment against
the fourth respondent was met by an affidavit from a third party claiming
ownership of the attached goods. In the end, nothing has been recovered to
settle the applicant’s taxed bill of costs.
[13] On 11 May 2025, the NPC delivered a notice under rule 47(1) demanding
security of R 350 000 by bank guarantee within ten days. The notice alleged
security of R 350 000 by bank guarantee within ten days. The notice alleged
that the respondents had failed to satisfy two previous costs orders, lacked
locus standi in respect of the properties, and had prosecuted an application that
is vexatious and without prospects of success. No security was furnished, and
3 47 of 1937.
6
when the rule 47(3) application was instituted, no response to the demand had
been received.
The application to file further affidavits
[14] The first respondent seeks, under two different notices of motion, to introduce
two further affidavits to the se proceedings. The first affidavit is styled the
“RESPONDENTS FURTHER AFFIDAVIT” and was deposed to by the
respondents’ attorney on 20 August 2025, and it answers the applicant’s
replying affidavit. The second affidavit, styled “SUPPLEMENTARY AFFIDAVIT
(RULE 47)”, was deposed to by the second respondent on 24 March 2026 and
inter alia discloses that R 180 000 has been placed in the trust account of the
respondents’ attorneys to demonstrate that the NPO is not insolvent, and that
the NPC has instituted insolvency proceedings against the NPO in another
Division which were removed from the roll.
[15] A party tendering an affidavit both late and out of its ordinary sequence seeks
not a right but an indulgence and must satisfy the court that it should
nevertheless be received. However, the rule as to the number and sequence of
affidavits is not inflexible, and a court retains a discretion to be exercised where
the interests of justice require it.
4 They require it here. The replying affidavit did
not confine itself to answering the respondents’ case. It annexed affidavits by
Mr Moola, said to be the last known president of the association, and by Mr Mia,
said to reside at the address given in the constitution as the association’s head
office, both deployed to disprove the continuity on which the respondents’
standing depends. The replying affidavit also went further and prays for an
order that Mr Singh, the respondents’ attorney, pay costs de bonis propriis in
his personal capacity, relief which was not claimed in the notice of motion. A
litigant who introduces fresh evidence in reply and who asks for the first time in
reply that his opponent’s attorney be mulcted in costs personally, cannot
reply that his opponent’s attorney be mulcted in costs personally, cannot
complain when an answer to that material is tendered out of sequence.
4 James Brown & Hamer (Pty) Ltd (previously named Gilbert Hamer & Co Ltd) v Simmons NO
1963 (4) SA 656 (A) at 660E-F.
7
[16] The affidavit deposed to by the attorney, however, goes well beyond such an
answer. It runs to some thirty pages and traverses the replying affidavit from its
opening paragraph onwards, much of it directed at matters that were
themselves no more than the applicant’s answer to the answering affidavit. It
is, however, a matter of the weight that should be attached to such matter rather
than the reception thereof. I have had regard to the affidavit insofar as it
answers the evidence of Mr Moola and Mr Mia and the claim for costs de bonis
propriis, and to the balance, I attach no weight.
[17] The second affidavit stands on a different footing. The events it records
occurred after the applicant’s replying affidavit was delivered and could not
have been placed before the court earlier and they bear directly on the central
question of the respondents’ means. The applicant, who did not oppose the
further affidavit applications and who enrolled them itself, did not point to any
prejudice it would suffer should the affidavits be admitted, which cannot be
cured by time and/or costs. In my view, a court that is asked to find that a litigant
cannot meet a costs order should generally not decline to look at that litigant’s
evidence that it can. Leave is therefore granted to admit both affidavits as part
of the record of this application.
The application to strike out
[18] The answering affidavit was not deposed to by any of the respondents but by
their attorney of record and confirmed by the second to fourth respondents only
in so far as it relates to each of them. The applicant asks that the answering
affidavit be struck out in its entirety for want of authority and personal
knowledge, alternatively that certain categories of material be struck out, being
averments about a rule 30 notice, a letter marked without prejudice said to
contain an admission of fraud, material about the applicant’s attorneys in their
personal capacities, references to another practitioner’s application for
personal capacities, references to another practitioner’s application for
admission, and averments about a concluded urgent application and about two
judges of this Division. The respondents opposed the application and delivered
an answering affidavit. No replying affidavit was filed.
8
[19] Two requirements must be satisfied for a court to strike out material from
affidavits. One, the matter must be scandalous, vexatious or irrelevant, and two,
the court must be satisfied that the party seeking the relief will be prejudiced if
it is not struck out. Even where the material is objectionable, the relief will be
refused if prejudice is not established, and where the application is heard by a
judge who is able to disabuse his or her mind of such matter, prejudice will
ordinarily be absent.
5 Much of the impugned material is irrelevant, and some of
it is intemperate and should not have been placed on a court file. But no
prejudice has been demonstrated by the applicant. I have read the material and
put it out of account and none of my conclusions in this judgment depends on
it.
[20] The prayer that the entire affidavit be struck out must in any event fail. A bare
assertion of personal knowledge is of little value without some indication of how
the knowledge was acquired.
6 Authority to conduct litigation is a different
question from competence to give evidence and a resolution authorising a
deponent confers no knowledge that he does not have.7 But that goes to weight,
not to the reception of the affidavit as a whole. To strike it out entirely would
leave the security application unopposed, which is out of all proportion to the
complaint, the more so because the applicant’s own case rests to some degree
on admissions in that affidavit. The strike-out application is therefore dismissed.
Preliminary objections to the security application
[21] The first objection is that the deponent to the founding affidavit was not
authorised. The founding papers annex a resolution of the applicant’s directors,
signed by its secretary, Mohamed Saleem Mohamed, authorising Mr Nashir
Omar and its attorneys to institute proceedings in defence of legal proceedings
brought against the company in this Division . The respondents say that three
brought against the company in this Division . The respondents say that three
names appear as directors at the foot of the letterhead and that none of them
signed, and that the resolution says nothing of security for costs. But those
three are on the face of the resolution the applicant’s chairman, secretary and
5 Beinash v Wixley 1997 (3) SA 721 (SCA) at 733A-B and 733I/J-734B.
6 President of the Republic of South Africa v M & G Media Ltd 2011 (2) SA 1 (SCA) at para 38.
7 Sibani Group (Pty) Ltd v Doves Group (Pty) Ltd [2022] ZAGPJHC 770.
9
treasurer, and the secretary did in fact sign the resolution. In any event, it is the
institution and prosecution of proceedings that must be authorised, not the
deposing of an affidavit. In addition, where proceedings are instituted by a firm
of attorneys purporting to act for a party, that must be accepted, the more so
where the other party has not availed itself of rule 7.
8 No rule 7 notice was
delivered in this matter and the resolution does authorise the defence of the
application brought against the applicant, which is what this is. The objection
therefore fails.
[22] The second objection is that the applicant cannot demand security because it
is itself in default in the main application, having entered opposition thereto
some 853 days late without seeking condonation. The factual premise for this
objection is, however, not established. The record contains contemporaneous
correspondence asserting that a notice of intention to oppose was served on
the respondents’ erstwhile attorneys on 27 September 2022. I need not decide
whether service in fact occurred then. It is enough that the premise on which
the objection rests has not been made out. The objection therefore fails.
[23] The third objection is that the security application was premature. The
respondents complain that the NPC sent a notice in terms of rule 47(1) on 11
May 2025, which afforded the NPO 10 (ten) days to respond, but the NPC set
the matter down on the unopposed roll-on 13 May 2025, in contravention of
their own notice in terms of rule 47(1) and rule 6. It appears that two days after
delivering the notice, the applicant also obtained a date on the unopposed roll.
The obtaining of an unopposed hearing date before the period afforded by the
notice had expired was premature and unnecessary, and I record my
disapproval of the practice. Rule 47(3) is engaged where the party from whom
security is demanded contests liability or fails to furnish it, and the respondents’
security is demanded contests liability or fails to furnish it, and the respondents’
papers contest liability in detail. Whether an application instituted before the
period has expired is competent because liability is contested afterwards is a
question on which I heard no argument and was referred to no authority. In view
of the conclusion I reach on the merits, it is unnecessary to decide it, and I
8 Ganes v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at para 19.
10
assume in the applicant’s favour, without deciding, that the application was
properly before me.
The applicable principles relating to Rule 47
[24] Rule 47 deals only with procedure. It does not create the grounds on which
security may be demanded, and recourse must be had to the common law. 9
The respondents are all incolae. At common law an incola cannot, as a general
rule, be required to give security. Since the repeal of s 13 of the Companies
Act10 there is no basis for distinguishing between an incola company and an
incola natural person, but because this court has a residual discretion arising
from its inherent power to regulate its own process, an incola may be compelled
to furnish security. The onus is on the party seeking it. Inability to satisfy a costs
order is not enough. Something more is required, and the court must be
satisfied that the main proceeding is vexatious or reckless or otherwise an
abuse of process. The power is exercised sparingly and in exceptional
circumstances.
11
[25] Proceedings are vexatious and an abuse if they are obviously unsustainable,
and where their setting aside is sought that must appear as a certainty. A
security application is less drastic, since it does not end the litigation but permits
it to continue with a safeguard, and the ordinary yardstick of a preponderance
of probability applies. A detailed investigation of the merits is not envisaged,
and a court should not attempt to resolve the dispute, as that would frustrate
the very purpose for which security is sought.
12
[26] Where the threshold is crossed, a discretion remains. On the one side of the
scale is the potential injustice to a claimant prevented from pursuing a legitimate
claim, which incorporates the importance of the right of access to courts
protected by s 34 of the Constitution. On the other side is the potential injustice
to a defendant who succeeds but cannot recover its costs. Relevant
to a defendant who succeeds but cannot recover its costs. Relevant
9 Boost Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd 2015 (5) SA 38 (SCA) at [5].
10 61 of 1973.
11 Boost Sports supra at paras [14] to [16].
12 Id at paras [17] to [19], adopting Golden International Navigation SA v Zeba Maritime Co Ltd
2008 (3) SA 10 (C) at para 26 and quoting Zietsman v Electronic Media Network Ltd 2008 (4)
SA 1 (SCA) at para 21.
11
considerations in exercising that discretion include the likelihood that an order
will terminate the claimant’s proceedings, the attempts it has made to obtain
assistance from those who stand behind it, whether its financial difficulties were
caused by the party seeking security, and the nature of its action. The party
seeking security must show a probability that its opponent cannot pay and the
party resisting must establish that an order might well leave it unable to pursue
the litigation and should indicate the nature and importance of that litigation so
as to rebut the suggestion that it is vexatious or without prospects.
13
Inability to satisfy a costs order
[27] The evidence on the first enquiry, whether the respondents can satisfy an
adverse costs order, strongly favours the applicant. A taxed costs order of this
court has stood unsatisfied for years. Writs of execution were issued against all
four respondents and produced nothing. The return against the NPO records
that there were no attachable assets; those against the second and third
respondents are returns of nulla bona, and the attachment against the fourth
respondent was met by a third party’s claim to the goods. Returns of that kind
cast doubt on a litigant’s ability to meet an adverse costs order, and the doubt
is reinforced where the litigant does not say that it will be able to meet one and
makes no disclosure of its financial affairs.
14 The answering affidavit observes
only that a nulla bona return does not prove that the NPO is defunct, which is
true but beside the point. The respondents’ position appears from their own
admission in the answering affidavit, that:
“The NPO admits that, should an order for security costs be granted against it,
it would financially cripple and/or make the NPO insolvent and would effectively
stop its main application. This is not in the interests of justice because the
NPO’s case has merits and should be heard. Further, it would effectively halt
the humanitarian work of the NPO.”
the humanitarian work of the NPO.”
[28] The financial disclosure by the respondents is thin. The only record placed
before me is a transaction history of the respondents’ attorneys’ trust account,
13 Giddey NO v J C Barnard and Partners 2007 (5) SA 525 (CC) at paras 8 and 30.
14 Zietsman supra at para 14.
12
showing three deposits over three days in February 2026 totalling R 180 000.
There is no statement of the NPO’s own accounts, no record of its income or of
the donations on which it says it depends, and no schedule of its assets and
liabilities, although the notice squarely challenged its means. The evidence is
not identical in respect of each respondent, and the NPO’s admission cannot
simply be attributed to the three individuals. However, taking the execution
history together with the absence of any disclosure of means, I am satisfied that
there is a substantial risk that the applicant will not recover its costs if the main
application fails.
[29] That conclusion does not, however, finally determine the security application.
The impecuniosity of an incola is not by itself a ground on which security may
be ordered.
Whether the main application is vexatious or an abuse
[30] The second enquiry, whether the main application is vexatious or an abuse,
must be approached with restraint. The merits belong to the court that hears
the main application. The respondents’ core grievance, that the community was
deprived of its properties by fraudulent conveyancing, is serious and, if
established, can ground substantive relief. The letter of the Acting Registrar of
Deeds makes no finding of fraud, but it lends some objective support to the
existence of a dispute about the registration process and cautions against
treating the underlying grievance as obviously unsustainable.
[31] I must, however, first identify what the main application presently is. It appears
from the documents on CaseLines that the respondents, on or about 6 March
2026, delivered a notice of intention to amend their notice of motion in the main
application. The proposed amendment entailed the joinder of a further
respondent, a judge, and the deletion of the existing prayers in the notice of
motion and the replacement thereof in their entirety. The applicant objected to
motion and the replacement thereof in their entirety. The applicant objected to
the proposed amendment and the respondents thereafter launched an
application under rule 28 seeking leave from the court for the proposed
amendments. The application was not opposed, and it appears that the
respondents intended to set this application down for argument with the current
13
application. Whether that was done on a procedurally correct basis is unclear,
but neither the joint practice note nor the parties at the hearing requested me
to determine the application to amend. The same can be said of what appears
to be an application under rule 10 to join Twala J as a respondent to the main
application. Similarly, there was no opposition and there was seemingly also an
attempt to set down the rule 10 application with this application, but it was never
argued nor raised in the joint practice note.
[32] A party becomes entitled to amend either because no objection was raised to
the proposed amendment, or by an order of court authorising it, and the
amendment itself takes place only when it is effected in the manner the rule
prescribes. Here an objection was raised, so that the entitlement could arise
only from an order, and no such order has been made. On the papers before
me, the amendment was therefore never effected, and I consequently decide
this application by reference to the notice of motion in the main application as
issued in September 2022. The application under rule 28 for leave to amend,
and the application under rule 10, remain pending and undetermined. Whether
the respondents may hereafter effect, or seek leave to effect, the proposed
amendment is not before me, and nothing in this judgment decides it.
[33] Next, I need to determine what the main application claims. The founding
affidavit in the current application describes it as an application ‘seeking to set
aside the arbitration award, as well as both the 2019 and 2022 court orders’,
and as ‘a fourth attempt to litigate the same dispute on the same set of facts’.
That is not an accurate description of the original notice of motion in the main
application. Its principal prayers seek the setting aside of the two Deeds
Registry conversions and the restoration of ownership. It contains no prayer
setting aside the arbitration award, and none setting aside the order of 18 April
setting aside the arbitration award, and none setting aside the order of 18 April
2019. The only court order it attacks is that of 8 February 2022, by Twala J.
[34] That distinction matters, because the applicant's case on abuse rests
substantially upon repetition. But the earlier proceedings and the main
application are not directed at the same thing. The arbitration award determined
who was to control and administer the properties. The two court orders granted
interdictory relief directed at that control and at access to the premises. Neither
14
determined who owned them. The main application seeks the setting aside of
the registered conversions of ownership and the restoration of ownership to the
NPO, on the ground that the conversions were procured by fraud.
[35] The chronology also points the same way. The conversions are alleged to have
been effected at the Deeds Registries in May 2019, about a month after the
order of 18 April 2019 and nearly three years before that of 8 February 2022. A
complaint about conduct alleged to have occurred after an order is not, without
more, a re-litigation of what that order decided. The order of 8 February 2022
was of course made after the conversions, but it was taken by agreement and
continued interdictory relief, and what it determined, and with what
consequence for the ownership dispute, is a question for the court that hears
the main application. So too is whether the arbitration award, the court orders
or the parties' agreements ultimately defeat or constrain the claim to ownership.
What has not been established on these papers is that the cause now advanced
has already been finally determined against the respondents and is merely
being advanced again under another name.
[36] That is not to say that the main application is in good order. It is not .
[37] The first difficulty is the identity of the litigant acting as applicant in the main
application. The notice of motion cites the first applicant as Bazme Khalid Shah
Chisty Sabree International NPO and asks that ownership be restored to it. The
founding affidavit that supports that notice of motion says something different.
It states that the first applicant is Bazme Khalid Shah Chisty Sabree
International Trust, initially operating as a voluntary association, and now
registered as a trust under IT373/2019 and also registered as a non-profit
organisation. The second to fourth applicants are cited as office-bearers and
co-trustees of that body. On the respondents’ own founding papers, the litigant
co-trustees of that body. On the respondents’ own founding papers, the litigant
is therefore at once an organisation and a trust, and the deponent nowhere
says which of them is before the court.
[38] Nor do the papers present a consistent account of which of the three bodies
holds the rights asserted over the properties. Having named the trust, the
deponent records that he will refer to the first applicant as ‘the NPO’, and that
15
label then carries the narrative. On it, the NPO had its inception in 1976 and
acquired both properties during the 1990s. On the same affidavit’s account, the
NPO was registered only in 2018 and the trust was created only in 2019. That
a voluntary association which registers as a non-profit organisation may
continue as the same body is one thing. That rights acquired in the 1990s vest
in a trust created in 2019 is another, and the affidavit does not address it. The
resolution authorising the opposition to this application is taken on the
letterhead of “Bazme Khalid Shah Chisty Sabree International Trust – NPO” by
persons described as ‘Trustees/Executive Members’. The answering affidavit,
and the answer I have admitted, put the position as one of institutional continuity
through changing legal forms, with the trust holding the assets. That may be
right as a matter of practice, but it does not yet tell the court which entity actually
claims.
[39] If the litigant is the trust, as its own founding affidavit says, a further difficulty
follows. A trust established by trust deed is not a legal person but a legal
relationship of a special kind. Because the control and administration of the
trust property vests in each trustee individually, and because the trustees have
individual interests, all of them must join in litigation concerning the affairs of
the trust unless the trust instrument provides otherwise; proceedings brought
at the instance of fewer trustees than are required have been held to be a
nullity.
15 One trustee may be authorised to sue in the name of another, but the
authorisation does not substitute the one for the other. The difficulty here is not
one of authority. The resolution on which the main application rests bears the
signatures of all seven persons named in it, above the legend ‘To be signed by
each and every trustee’. The difficulty is that only three of the seven are cited
as applicants, and that the resolution is, on its terms, one of the NPO,
as applicants, and that the resolution is, on its terms, one of the NPO,
authorising its chairman ‘to sign any documentation necessary’ for the
application, rather than a resolution of trustees to litigate in their own names.
[40] The second difficulty is that the legal basis of the attack on the court order of 8
February 2022 has never been settled. The answering affidavit describes the
main application as a review when it states that ‘the NPO launched a review
15 Lupacchini NO v Minister of Safety and Security 2010 (6) SA 457 (SCA) at para 2.
16
application in terms of rule 53 to set aside the 2019 and 2022 court orders’. So
far as a review under rule 53 is intended, it is misconceived. Rule 5316 governs
the review of the decision or proceedings of a lower court, or of a tribunal, board
or officer performing judicial, quasi-judicial or administrative functions, and the
proceedings of the High Court are not subject to review.17 An order of this court
may be set aside under rule 42, under rule 31(2)(b), on appeal, or on common-
law grounds. Rule 42(1)(a) is not available, for it requires the absence of the
party affected, and the respondents were not absent.
18 What remains open is
the common law, under which a judgment may be set aside for fraud, or where
there is no valid agreement between the parties to support it — the latter ground
made for an order taken by consent whose underlying agreement is
impugned.
19 The founding affidavit in the main application does allege that the
false claim of ownership was repeated on oath before the court, which, if
established, could found such an attack, though the requirements are
exacting.20 But nowhere is that ground formulated as one of common-law
rescission in the main application.
[41] The third difficulty is the respondents’ posture towards the legal instruments
that stand in their path. It is trite that an order of a court of law stands until set
aside by a court of competent jurisdiction, and until then must be obeyed even
16 Rule 53(1) reads:
“(1) Save where any law otherwise provides, all proceedings to bring under review the
decision or proceedings of any lower court and of any tribunal, board or officer
performing judicial, quasi-judicial or administrative functions shall be by way of notice
of motion directed and served by the party seeking to review such decision or
proceedings on the magistrate, presiding officer or chairperson of the court, tribunal or
board or to the officer, as the case may be, and on all other parties affected —
board or to the officer, as the case may be, and on all other parties affected —
(a) calling upon such persons to show cause why such decision or proceedings
should not be reviewed and corrected or set aside, and
(b) calling upon the magistrate, presiding officer, chairperson or officer, as the
case may be, to send, within 15 days after receipt of the notice of motion, to
the registrar the record of such proceedings sought to be corrected or set
aside, together with such reasons as the magistrate, presiding officer,
chairperson or officer, as the case may be is by law required or desires to give
or make, and to notify the applicant that such magistrate, presiding officer,
chairperson or officer, as the case may be has done so.”
17 Van Loggerenberg: Erasmus Superior Court Practice, at D1 Rule 53-2.
18 Id at D1 Rule 42-16.
19 Id at D1 Rule 42-9.
20 The successful litigant must have been party to the fraud, the evidence must have been
incorrect and given with intent to mislead, and it must have diverged from the truth to such an
extent that the court would have decided otherwise had it known: Van Loggerenberg: Erasmus
Superior Court Practice, at D1 Rule 42-10.
17
if it is wrong.21 The arbitration award itself records that it is final and binding on
the parties and not appealable. Section 28 of the Arbitration Act22 provides that,
unless the arbitration agreement provides otherwise, an award is final and not
subject to appeal and that each party must abide by and comply with the award
in accordance with its terms. 23 The Arbitration Act provides grounds on which
an award may be set aside on application, which include the very complaints
the respondents make, that the tribunal exceeded its powers and that the award
was improperly obtained.
24 A transactio may likewise be set aside for fraud or
for an error vitiating true consent.25 No order setting aside the arbitration award
has, however, been obtained.
[42] Nor is the attack upon these legal instruments coherent. The respondents, for
example, do not say that no agreement was reached during the arbitration.
They in fact say the parties arrived at a settlement agreement, with terms
favourable to the NPO, which was not reduced to writing, but nowhere do they
say what those terms were. In contradiction to the alleged settlement
agreement, the respondents in the same answering affidavit also allege that the
parties ‘were not ad idem, and hence the agreement did not come into being’,
and the arbitration was ‘a sham’ and that the arbitration award was ultra vires
and void ab initio so that ‘there was no need to waste resources to set it aside’.
[43] These are formidable difficulties and some of them may prove fatal. But the
question under rule 47 is not whether the main application will fail. Because an
order for security is less drastic than an order finally staying or striking out
proceedings as vexatious, the assessment is made on a preponderance of
probability rather than to a certainty. There may be cases in which security is
ordered although it can be said only that the prospects of success are doubtful,
without it being possible to say that there are none.
26 That is the applicant’s
without it being possible to say that there are none.
26 That is the applicant’s
21 Id at D1 Rule 42-5 and the authorities cited there.
22 42 of 1965.
23 Section 28 of the Arbitration Act 42 of 1965.
24 Section 33(1)(b) and (c) of the Arbitration Act 42 of 1965. Such an application must be made
within six weeks after publication of the award: section 33(2).
25 Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd 1978 (1) SA
914 (A) at 922C-D.
26 Boost Sports supra at para 18, quoting Fitchet v Fitchet 1987 (1) SA 450 (E) at 454E-G and
Davidson's Bakery (Pty) Ltd v Burger 1961 (1) SA 589 (O) at 593E.
18
best answer to what follows and I have weighed it. But a less exacting merits
enquiry is not the same as dispensing with the threshold. Even where the
prospects of recovering costs are poor, security may be ordered against an
incola only if the court is satisfied that the main proceeding is vexatious or
reckless or otherwise amounts to an abuse.
27 Doubtful prospects are a factor
in that assessment but they are not themselves the answer to it.
[44] The question, then, is whether the applicant has shown, on a preponderance
of probability and without my attempting to resolve the underlying dispute, that
the main application is vexatious or reckless or otherwise amounts to an abuse.
An action is vexatious and an abuse of the process of court, ‘inter alia if it is
obviously unsustainable’.
28
[45] I am not satisfied that the threshold is met. The identity and standing difficulties
are substantial, but they concern the juridical formulation of the claimant and its
cause of action, and do not, without more, establish that the underlying claim
directed at the Deeds Registry conversions is objectively unsustainable. The
arbitration award and the two court orders present serious obstacles. Still, they
do not, on these papers, determine the validity of those conversions, which are
the primary subject of the main application and what it seeks to set aside. The
legal basis of the attack on the court order of 8 February 2022 is not clearly
formulated, but the founding affidavit alleges the facts of a fraud upon the court,
which is a recognised common-law ground on which an order may be set aside.
I express no view on whether any of those contentions will succeed. The point
is narrower. Although this is a badly formulated and vulnerable case, it is not
an objectively unsustainable one.
[46] The respondents' conduct of the litigation also does not supply what is
otherwise missing in the main application. The answering affidavit in this
otherwise missing in the main application. The answering affidavit in this
application is prolix, in places intemperate and contains allegations that ought
never to have been made. After the main application had lain unprosecuted for
years, the respondents obtained an unopposed hearing date for it. Those
27 Boost Sports supra at para 16.
28 Boost Sports supra at para 17, quoting African Farms and Townships Ltd v Cape Town
Municipality 1963 (2) SA 555 (A) at 565D-E.
19
matters bear on costs and on the weight to be given to particular allegations.
Taken alone, or together with the defects identified above, they do not establish
on a preponderance of probability that the continued prosecution of the main
application is vexatious, reckless or otherwise an abuse of process.
[47] I therefore find that the applicant has established a substantial risk that it will
not recover its costs but has not established the further element which the
common law requires before an incola may be compelled to furnish security.
That is dispositive of the matter, and the application must therefore be
dismissed. I am conscious of what that means for the applicant. It holds a taxed
order of this court which has gone unsatisfied for years; it has executed four
times without recovering anything, and it must now defend an application
launched in 2022 while facing a substantial risk of not recovering the costs of
doing so. That is a real hardship, but it is the hardship which the common law
accepts when it declines to compel an incola to give security merely because it
cannot pay and it does not entitle the applicant to an order which the further
requirement has not been shown to justify.
[48] Because the threshold has not been crossed, no discretion arises. Should I be
wrong about that, I record how I would have exercised it. On the applicant’s
side stands a taxed costs order of this court unsatisfied for years and four
executions that produced nothing. The respondents’ disclosure of their means
is very thin. They produced no statement of the NPO’s accounts, no record of
its income and no schedule of its assets and liabilities. They do not identify the
source of the R 180 000, say whether further assistance is available from those
who stand behind them, or describe any unsuccessful attempt to obtain it. A
litigant resisting security on the ground of impecuniosity must be candid and
place the relevant information before the court.
29 I would not have accepted, on
place the relevant information before the court.
29 I would not have accepted, on
that material, the unqualified assertion that an order for security would bring the
main application to an end.
[49] Against that stand the importance of the dispute to both sides and to the
community they serve, and the impairment of the right of access to courts which
29 Giddey NO supra at para 31.
20
an order for security may work upon a litigant of limited means. Weighing those
considerations and had I been satisfied that the main application was vexatious
or reckless or otherwise an abuse, I would have ordered security and left its
amount, form and manner to be determined by the registrar under rule 47(5).
[50] This judgment, however, is only concerned with the main application as
presently constituted and the facts placed before me. Nothing said in it
determines the legal consequences of any amendment which may hereafter be
effected, if at all.
Costs
[51] The applicant has failed and should pay the respondents’ costs of the security
application. I am not persuaded that any punitive order is called for on either
side. Having regard to the size of the record, the procedural and historical
complexity of the dispute and the importance of the relief to both sides, fees will
be recoverable on scale B.
[52] The applicant pressed for costs de bonis propriis against the respondents’
attorney, who deposed to the answering affidavit. It complains that he swore to
matters of which he can have no personal knowledge, treated privileged
correspondence as an admission of fraud when on its terms it was conditional,
used another practitioner’s admission application to impugn him, and made
unfounded allegations against judges of this Division. In considering costs the
court may have regard to the conduct of a legal representative and to whether
that representative should pay costs personally, but such an order is made only
where there has been negligence in a serious degree, warranting the order as
a mark of the court’s displeasure.
30 Some of the criticism is justified, as my
remarks above reflect. The affidavit ought to have been drawn with restraint
and confined to the issues. But that falls short of the threshold and an order for
costs de bonis propriis is refused. The same considerations dispose of the
respondents’ mirror-image request against the applicant’s attorney, and of the
respondents’ mirror-image request against the applicant’s attorney, and of the
invitations that I refer the other’s practitioners to the Legal Practice Council.
30 South African Liquor Traders’ Association v Chairperson, Gauteng Liquor Board 2009 (1) SA
565 (CC) at para 54.
21
Those requests are refused. It is enough to say that the way portions of the
answering affidavit were drawn, and the manner in which the applicant obtained
the May 2025 unopposed hearing date for the security application, each fell
short of what this court is entitled to expect of its officers.
[53] Neither subsidiary application was argued. The respondents obtained the
admission of both further affidavits, although the first went well beyond what
was justified and much of it has been given no weight. The applicant failed in
the strike-out application, although the complaint underlying it was not without
foundation and part of the material ought never to have been filed. In those
circumstances, and because each side’s conduct contributed to the
interlocutory proliferation, there will be no order as to the costs of either
application.
ORDER
(1) Leave is granted to the first respondent in terms of rule 6(5)(e) of the
Uniform Rules of Court to deliver the further affidavit of the respondents’
attorney of record dated 20 August 2025 and the supplementary affidavit
of the second respondent dated 24 March 2026, both of which are
admitted as part of the papers in the application in terms of rule 47(3).
(2) The application in terms of rule 6(15) of the Uniform Rules of Court is
dismissed.
(3) The application in terms of rule 47(3) of the Uniform Rules of Court is
dismissed.
(4) The applicant is ordered to pay the first to fourth respondents’ costs of the
application in terms of rule 47(3) on the party and party scale, on scale B.
(5) There is no order as to the costs of the applications in terms of rule 6(5)(e)
and rule 6(15).