Free State Buying Association (Pty) Ltd v Nichas Mirkin BK (2773/2006) [2006] ZAFSHC 161 (27 October 2006)

Free State Buying Association (Pty) Ltd v Nichas Mirkin BK (2773/2006) [2006] ZAFSHC 161 (27 October 2006)

The court found that the defendant failed to provide security to the satisfaction of the Registrar as required by Rule 32(3)(a). Both the first and second guarantees were limited to R500,000 and did not provide unqualified security for any judgment and costs, particularly in light of the plaintiff's claim for costs on the attorney and own client scale. The defendant was aware of the deficiencies but did not remedy them or disclose the nature of its defence. The Registrar's note confirmed dissatisfaction with the security. The defendant's conduct did not demonstrate bona fides, and no basis existed for the court to exercise its discretion in favour of the defendant. Accordingly, summary...

Citation
[2006] ZAFSHC 161
Parties
Plaintiff: Free State Buying Association (Pty) Ltd; Defendant: Nichas Mirkin BK
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
27 October 2006
Case Number
2773/2006
Procedural Posture
Summary Judgment Application / Final Determination of Summary Judgment Application
Outcome
Summary judgment granted in favour of the plaintiff.
Judges
Kruger R
Legal Topics
Summary Judgment, Security for Costs, Rule 32, Costs Between Attorney and Client
Civil Procedure Summary Judgment Security for Costs Rule 32 Costs Between Attorney and Client

Case Brief

Summary, issues, holding and outcome

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Parties

Free State Buying Association (Pty) Ltd

Plaintiff

Nichas Mirkin BK

Defendant

Procedural Posture

Summary Judgment Application / Final Determination of Summary Judgment Application

Legal Issues

  1. 1 Whether the security provided by the defendant complies with Rule 32(3)(a) and is to the satisfaction of the Registrar.
  2. 2 Whether summary judgment should be granted in light of the defendant's failure to provide adequate security or disclose a bona fide defence.
  3. 3 Whether the defendant's conduct demonstrates bona fides in resisting summary judgment.

Ratio Decidendi

The court found that the defendant failed to provide security to the satisfaction of the Registrar as required by Rule 32(3)(a). Both the first and second guarantees were limited to R500,000 and did not provide unqualified security for any judgment and costs, particularly in light of the plaintiff's claim for costs on the attorney and own client scale. The defendant was aware of the deficiencies but did not remedy them or disclose the nature of its defence. The Registrar's note confirmed dissatisfaction with the security. The defendant's conduct did not demonstrate bona fides, and no basis existed for the court to exercise its discretion in favour of the defendant. Accordingly, summary...

Court Disposition

Summary judgment granted in favour of the plaintiff.

Orders

  • The defendant is ordered to pay the amount of R417,932.73.
  • Interest on the aforesaid amount at 15% per annum from 1 June 2006 until date of payment.