BK Foyle also known as Bertram or Bert or B Koning and Another v D'Hooghe and Another (10315/01) [2006] ZAWCHC 44 (20 October 2006)

BK Foyle also known as Bertram or Bert or B Koning and Another v D'Hooghe and Another (10315/01) [2006] ZAWCHC 44 (20 October 2006)

The court found that the Defendants delayed unreasonably for 4½ years in launching the application for security for costs and failed to provide any explanation for the delay or to allege facts establishing absence of prejudice to the Plaintiffs. The discretion to order security for costs must be exercised equitably, and in circumstances where the applicant fails to explain the delay and does not address prejudice, the court should be reluctant to grant the relief. Although the Plaintiffs did not establish impecuniosity or other grounds for refusal, the Defendants' procedural failures were decisive. Accordingly, the application for security for costs was dismissed with costs.

Citation
[2006] ZAWCHC 44
Parties
Applicant: B K Foyle also known as Bertram or Bert or B Koning; Applicant: Santam Insurance Company Ltd; Respondent: Rudy Gaston Adelardus D'Hooghe; Respondent: Carine Jeannine Ghislaine D'Hooghe
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
20 October 2006
Case Number
10315/01
Procedural Posture
Security for Costs Application / Application to Compel Furnishing of Security for Costs Under Rule 47
Outcome
Application dismissed with costs.
Judges
Pincus
Legal Topics
Security for Costs, Peregrinus and Incola, Court Discretion, Delay in Application
Civil Procedure Security for Costs Peregrinus and Incola Court Discretion Delay in Application

Case Brief

Summary, issues, holding and outcome

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Parties

B K Foyle also known as Bertram or Bert or B Koning

Applicant

Santam Insurance Company Ltd

Applicant

Rudy Gaston Adelardus D'Hooghe

Respondent

Carine Jeannine Ghislaine D'Hooghe

Respondent

Procedural Posture

Security for Costs Application / Application to Compel Furnishing of Security for Costs Under Rule 47

Legal Issues

  1. 1 Whether the Plaintiffs, as peregrini, should be ordered to furnish security for costs in terms of Rule 47.
  2. 2 Whether the Defendants' delay of 4½ years in launching the application for security for costs bars the relief sought.
  3. 3 Whether the Defendants have provided sufficient explanation for the delay and established absence of prejudice to the Plaintiffs.

Ratio Decidendi

The court found that the Defendants delayed unreasonably for 4½ years in launching the application for security for costs and failed to provide any explanation for the delay or to allege facts establishing absence of prejudice to the Plaintiffs. The discretion to order security for costs must be exercised equitably, and in circumstances where the applicant fails to explain the delay and does not address prejudice, the court should be reluctant to grant the relief. Although the Plaintiffs did not establish impecuniosity or other grounds for refusal, the Defendants' procedural failures were decisive. Accordingly, the application for security for costs was dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application for security for costs is dismissed.
  • The Defendants are ordered to pay the costs of the application.