BRC DiamondCore Ltd v Tintinger NO and Another, In re Tintinger and Another v Ansafon (Pty) Ltd and Others (775/2010) [2010] ZANCHC 70 (17 December 2010)

BRC DiamondCore Ltd v Tintinger NO and Another, In re Tintinger and Another v Ansafon (Pty) Ltd and Others (775/2010) [2010] ZANCHC 70 (17 December 2010)

The court found that the application to compel compliance with the rule 35(12) notice was procedurally defective because the applicant failed to comply with the requirements of rule 30A before launching the application. Rule 35(12) does not provide a specific remedy, only a negative sanction, and therefore the general remedy under rule 30A applies. The point in limine raised by the trustees was upheld, resulting in the dismissal of the application to compel. Regarding security for costs, the court held that although a trust is not a company or body corporate, the particular trust in question was established specifically for litigation and is being used as a front to shield the true...

Citation
[2010] ZANCHC 70
Parties
Applicant: BRC DiamondCore Limited; Respondent: Sybrand Albertus Tintinger N.O.; Respondent: Craig Ian Campbell N.O.
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
17 December 2010
Case Number
775/2010
Procedural Posture
Interlocutory Application / Application to Compel Compliance With Rule 35(12) and Application for Security for Costs Under Rule 47
Outcome
The application to compel compliance with the rule 35(12) notice is dismissed with costs. The trustees are ordered to furnish security for costs in an amount to be determined by the Registrar, and the main application is stayed until compliance. The trustees are directed to pay the costs of the interlocutory...
Judges
Henriques
Legal Topics
Security for Costs, Rule 35 Discovery, Rule 47 Security, Abuse of Process, Trust Litigation
Civil Procedure Security for Costs Rule 35 Discovery Rule 47 Security Abuse of Process Trust Litigation

Case Brief

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Parties

BRC DiamondCore Limited

Applicant

Sybrand Albertus Tintinger N.O.

Respondent

Craig Ian Campbell N.O.

Respondent

Procedural Posture

Interlocutory Application / Application to Compel Compliance With Rule 35(12) and Application for Security for Costs Under Rule 47

Legal Issues

  1. 1 Whether the application to compel compliance with the rule 35(12) notice should be granted.
  2. 2 Whether the trustees, acting as applicants in the main application, should be ordered to furnish security for costs under rule 47.
  3. 3 Whether the trust is litigating in a reckless or vexatious manner amounting to an abuse of process.

Ratio Decidendi

The court found that the application to compel compliance with the rule 35(12) notice was procedurally defective because the applicant failed to comply with the requirements of rule 30A before launching the application. Rule 35(12) does not provide a specific remedy, only a negative sanction, and therefore the general remedy under rule 30A applies. The point in limine raised by the trustees was upheld, resulting in the dismissal of the application to compel. Regarding security for costs, the court held that although a trust is not a company or body corporate, the particular trust in question was established specifically for litigation and is being used as a front to shield the true...

Court Disposition

The application to compel compliance with the rule 35(12) notice is dismissed with costs. The trustees are ordered to furnish security for costs in an amount to be determined by the Registrar, and the main application is stayed until compliance. The trustees are directed to pay the costs of the interlocutory...

Orders

  • The application to compel compliance with the Rule 35(12) notice is dismissed with costs.
  • The applicants in the main application (Sybrand Albertus Tintinger and Craig Ian Campbell NNO) are ordered to furnish security for costs in an amount to be determined by the Registrar of this Court.