First Rand Bank Ltd v Van der Merwe (959/2002) [2002] ZAECHC 23 (7 October 2002)

First Rand Bank Ltd v Van der Merwe (959/2002) [2002] ZAECHC 23 (7 October 2002)

Rule 49(13) of the High Court Rules, even in its amended form, exceeds the powers conferred by section 6(1)(m) of the Rules Board for Courts of Law Act 107 of 1985, as it purports to create a right to demand security for costs where no such statutory right exists. The rule is therefore ultra vires and invalid, both under the common law and the constitutional doctrine of legality. The constitutional context, particularly the right of access to justice under section 34 of the Constitution, reinforces the invalidity of an inflexible rule requiring security for costs. Given the broader implications for litigants and institutions, the matter is referred to the full court for determination,...

Citation
[2002] ZAECHC 23
Parties
Applicant: FIRSTRAND BANK LIMITED; Respondent: M.J and E.E. VAN DER MERWE
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
7 October 2002
Case Number
959/2002
Procedural Posture
Civil Application / Referral to Full Court for Constitutional and Statutory Validity Determination
Outcome
The application is referred to the full court for determination of the constitutional and statutory validity of rule 49(13); costs are reserved.
Judges
Froneman
Legal Topics
Security for Costs, Ultra Vires Rule, Access to Justice, Bill of Rights Limitation
Civil Procedure Constitutional Law Security for Costs Ultra Vires Rule Access to Justice Bill of Rights Limitation

Case Brief

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Parties

FIRSTRAND BANK LIMITED

Applicant

M.J and E.E. VAN DER MERWE

Respondent

Procedural Posture

Civil Application / Referral to Full Court for Constitutional and Statutory Validity Determination

Legal Issues

  1. 1 Is rule 49(13) of the High Court Rules constitutionally valid and intra vires its enabling legislation?
  2. 2 Does rule 49(13) unlawfully create a right to demand security for costs in appeals from the High Court as court of first instance?
  3. 3 Are the respondents obliged to provide security for costs in this appeal?

Ratio Decidendi

Rule 49(13) of the High Court Rules, even in its amended form, exceeds the powers conferred by section 6(1)(m) of the Rules Board for Courts of Law Act 107 of 1985, as it purports to create a right to demand security for costs where no such statutory right exists. The rule is therefore ultra vires and invalid, both under the common law and the constitutional doctrine of legality. The constitutional context, particularly the right of access to justice under section 34 of the Constitution, reinforces the invalidity of an inflexible rule requiring security for costs. Given the broader implications for litigants and institutions, the matter is referred to the full court for determination,...

Court Disposition

The application is referred to the full court for determination of the constitutional and statutory validity of rule 49(13); costs are reserved.

Orders

  • The application in case no.959/2002 is referred for hearing to the full court of this division, to be constituted by the Judge-President in accordance with s.13(1)(a) of the Supreme Court Act 59 of 1959.
  • The application initiated by notice of motion dated 13 June 2002 under case no.CA 210/2002 is to be placed before the full court at this hearing.