Build on Construction (Pty) Ltd and Another v Rasdi CC (1891/2012) [2013] ZAFSHC 25 (8 March 2013)

Build on Construction (Pty) Ltd and Another v Rasdi CC (1891/2012) [2013] ZAFSHC 25 (8 March 2013)

The court found that the applicants failed to discharge the onus of proving, by credible evidence, that the respondent would be unable to satisfy an adverse costs order. The respondent had operated as a subcontractor for many years and remained in business, and there was no evidence of default on contractual obligations. The applicants' allegations were speculative and unsupported by financial documentation. The court held that the discretion exercised by the previous judge was judicial and based on correct principles, and there was no reasonable prospect that another court would reach a different conclusion. The reference to the right of access to court under section 34 of the...

Citation
[2013] ZAFSHC 25
Parties
Applicant: Build on Construction (Pty) Ltd; Applicant: K P Noonan; Respondent: Rasdi CC
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
8 March 2013
Case Number
1891/2012
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Dismissal of Application to Compel Security for Costs
Outcome
Leave to appeal is dismissed with costs.
Judges
J.P. Daffue
Legal Topics
Security for Costs, Leave to Appeal, Close Corporations Act, Judicial Discretion, Costs Orders
Civil Procedure Security for Costs Leave to Appeal Close Corporations Act Judicial Discretion Costs Orders

Case Brief

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Parties

Build on Construction (Pty) Ltd

Applicant

K P Noonan

Applicant

Rasdi CC

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Dismissal of Application to Compel Security for Costs

Legal Issues

  1. 1 Whether there is a reasonable possibility that another court may reach a different conclusion regarding the dismissal of the application to compel security for costs.
  2. 2 Whether the respondent's financial position justified an order for security for costs.
  3. 3 Whether the right of access to court under section 34 of the Constitution was violated by the refusal to order security for costs.

Ratio Decidendi

The court found that the applicants failed to discharge the onus of proving, by credible evidence, that the respondent would be unable to satisfy an adverse costs order. The respondent had operated as a subcontractor for many years and remained in business, and there was no evidence of default on contractual obligations. The applicants' allegations were speculative and unsupported by financial documentation. The court held that the discretion exercised by the previous judge was judicial and based on correct principles, and there was no reasonable prospect that another court would reach a different conclusion. The reference to the right of access to court under section 34 of the...

Court Disposition

Leave to appeal is dismissed with costs.

Orders

  • The application for leave to appeal is dismissed with costs.