B & W Industrial Technology (Pty) Ltd and Others v Baroutsos (A5014/04) [2005] ZAGPHC 93; 2006 (5) SA 135 (W) (22 September 2005)

B & W Industrial Technology (Pty) Ltd and Others v Baroutsos (A5014/04) [2005] ZAGPHC 93; 2006 (5) SA 135 (W) (22 September 2005)

The court held that substantial and unexplained delay in bringing applications for security for costs is a material factor justifying refusal of such applications, regardless of whether the delay amounts to waiver or estoppel. The discretion exercised by the court a quo was not injudicious, capricious, or based on a wrong principle. The practice of ordering security for the value of counterclaims against a peregrinus plaintiff is outdated and should not be followed except in exceptional circumstances, given modern commercial realities and considerations of fairness. The respondent's status as a peregrinus was assumed for the purpose of the judgment, but the delay and lack of prejudice to...

Citation
[2005] ZAGPHC 93
Parties
Appellant: B & W Industrial Technology (Pty) Limited; Appellant: Calaban Properties (Pty) Limited; Appellant: T Lombard; Appellant: D S Nevay; Appellant: G W R Swanepoel; Appellant: G M J Breedt; Respondent: Ioannis (Johnny) Baroutsos
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
22 September 2005
Case Number
A5014/04
Procedural Posture
Civil Appeal / Appeal From Dismissal of Applications for Security for Costs and Counterclaims
Outcome
Appeal dismissed with costs awarded jointly and severally against the appellants.
Judges
D Marais, F R Malan, J P Horn
Legal Topics
Security for Costs, Peregrinus and Incola, Delay in Application, Counterclaims, Judicial Discretion
Civil Procedure Security for Costs Peregrinus and Incola Delay in Application Counterclaims Judicial Discretion

Case Brief

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Parties

B & W Industrial Technology (Pty) Limited

Appellant

Calaban Properties (Pty) Limited

Appellant

T Lombard

Appellant

D S Nevay

Appellant

G W R Swanepoel

Appellant

G M J Breedt

Appellant

Ioannis (Johnny) Baroutsos

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Applications for Security for Costs and Counterclaims

Legal Issues

  1. 1 Whether substantial delay in bringing applications for security for costs justifies refusal of such applications.
  2. 2 Whether a court should order a peregrinus plaintiff to provide security for the value of counterclaims brought by an incola defendant.
  3. 3 Whether the discretion exercised by the court a quo was injudicious or based on a wrong principle.

Ratio Decidendi

The court held that substantial and unexplained delay in bringing applications for security for costs is a material factor justifying refusal of such applications, regardless of whether the delay amounts to waiver or estoppel. The discretion exercised by the court a quo was not injudicious, capricious, or based on a wrong principle. The practice of ordering security for the value of counterclaims against a peregrinus plaintiff is outdated and should not be followed except in exceptional circumstances, given modern commercial realities and considerations of fairness. The respondent's status as a peregrinus was assumed for the purpose of the judgment, but the delay and lack of prejudice to...

Court Disposition

Appeal dismissed with costs awarded jointly and severally against the appellants.

Orders

  • The appeal is dismissed.
  • Costs are awarded jointly and severally against the first to sixth appellants as listed on the notice of appeal dated 26 March 2004.