Feigner v Body Corporate of the Lighthouse Mall (438/2010) [2011] ZAKZDHC 20 (16 March 2011)

Feigner v Body Corporate of the Lighthouse Mall (438/2010) [2011] ZAKZDHC 20 (16 March 2011)

The court found that the respondent, a peregrinus with no assets in South Africa, could be required to provide security for costs to protect the applicant, an incola, from the risk of an unrecoverable costs award. The respondent's asset disclosure was insufficient to demonstrate that he would be able to satisfy an adverse costs order, and there was no clear evidence that requiring security would stifle his claim. The court exercised its discretion, balancing the respondent's right of access to court under section 34 of the Constitution against the applicant's right to recover costs, and concluded that the order for security was justified. The amount sought was not contested, and the...

Citation
[2011] ZAKZDHC 20
Parties
Plaintiff: Karl Feigner; Defendant: Body Corporate of the Lighthouse Mall
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
16 March 2011
Case Number
438/2010
Procedural Posture
Stay Application / Application for Security for Costs Under Uniform Rule 47(3)
Outcome
Application granted. Respondent ordered to furnish security for costs.
Judges
Ntshangase
Legal Topics
Security for Costs, Peregrinus, Uniform Rule 47, Constitutional Right of Access, Costs Award
Civil Procedure Security for Costs Peregrinus Uniform Rule 47 Constitutional Right of Access Costs Award

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 8 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Karl Feigner

Plaintiff

Body Corporate of the Lighthouse Mall

Defendant

Procedural Posture

Stay Application / Application for Security for Costs Under Uniform Rule 47(3)

Legal Issues

  1. 1 Whether the applicant is entitled to security for costs from the respondent, a peregrinus with no assets in South Africa.
  2. 2 Whether ordering security for costs would unreasonably limit the respondent's constitutional right of access to court under section 34.
  3. 3 Whether the respondent's financial position and asset disclosure justify refusal or reduction of the security sought.

Ratio Decidendi

The court found that the respondent, a peregrinus with no assets in South Africa, could be required to provide security for costs to protect the applicant, an incola, from the risk of an unrecoverable costs award. The respondent's asset disclosure was insufficient to demonstrate that he would be able to satisfy an adverse costs order, and there was no clear evidence that requiring security would stifle his claim. The court exercised its discretion, balancing the respondent's right of access to court under section 34 of the Constitution against the applicant's right to recover costs, and concluded that the order for security was justified. The amount sought was not contested, and the...

Court Disposition

Application granted. Respondent ordered to furnish security for costs.

Orders

  • The respondent (plaintiff) is ordered to furnish security to the applicant (first defendant) in the amount of R300,000 within seven days of the date of this order.
  • If the respondent does not comply, the applicant may apply for an order dismissing the respondent's claim.