Glenrand Mib Financial Services (Pty) Ltd and Others v Van Den Heever NO and Others (4445/07) [2007] ZAGPHC 392 (23 November 2007)

Glenrand Mib Financial Services (Pty) Ltd and Others v Van Den Heever NO and Others (4445/07) [2007] ZAGPHC 392 (23 November 2007)

The applicants satisfied the threshold requirement that the liquidators would be unable to pay costs if unsuccessful. The court found no sufficient evidence that ordering security would terminate the litigation or prevent the respondents from pursuing their action. The respondents' speculative allegations and lack of evidence regarding attempts to obtain financial assistance from creditors were insufficient. The court was not persuaded that the applicants caused the financial difficulties of the fourth respondent. The factors favouring the respondents did not outweigh the prejudice to the applicants if unable to recover costs. Accordingly, the respondents were ordered to furnish security...

Citation
[2007] ZAGPHC 392
Parties
Applicant: Glenrand Mib Financial Services (Pty) Ltd; Applicant: Glenrand Mib Ltd; Defendant: Freefall Trading 65 (Pty) Ltd; Applicant: David James Harpur; Applicant: Allan Walter Mansfield; Defendant: Marc Sean Seelenbinder; Defendant: Leon Janse Van Rensburg; Respondent: Theodor Wilhelm Van Den Heever N.O.; Respondent: Christiaan Frederik De Wet N.O.; Respondent: Deidre Basson N.O.; Respondent: Protector Group Holdings (Pty) Ltd (in liquidation)
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
23 November 2007
Case Number
4445/07
Procedural Posture
Security for Costs Application / Application for Security for Costs Under Section 13 of the Companies Act and Rule 47
Outcome
Application granted. Respondents ordered to furnish security for costs; action stayed until security is provided.
Judges
PA Meyer
Legal Topics
Security for Costs, Companies Act Section 13, Liquidation, Costs Award, Access to Court
Civil Procedure Commercial and Corporate Security for Costs Companies Act Section 13 Liquidation Costs Award Access to Court

Case Brief

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Parties

Glenrand Mib Financial Services (Pty) Ltd

Applicant

Glenrand Mib Ltd

Applicant

Freefall Trading 65 (Pty) Ltd

Defendant

David James Harpur

Applicant

Allan Walter Mansfield

Applicant

Marc Sean Seelenbinder

Defendant

Leon Janse Van Rensburg

Defendant

Theodor Wilhelm Van Den Heever N.O.

Respondent

Christiaan Frederik De Wet N.O.

Respondent

Deidre Basson N.O.

Respondent

Protector Group Holdings (Pty) Ltd (in liquidation)

Respondent

Procedural Posture

Security for Costs Application / Application for Security for Costs Under Section 13 of the Companies Act and Rule 47

Legal Issues

  1. 1 Whether the liquidators of the fourth respondent should be compelled to furnish security for costs under section 13 of the Companies Act.
  2. 2 Whether the ordering of security would effectively terminate the litigation or prevent the respondents from pursuing their action.
  3. 3 Whether the conduct of the applicants caused the financial difficulties of the fourth respondent.

Ratio Decidendi

The applicants satisfied the threshold requirement that the liquidators would be unable to pay costs if unsuccessful. The court found no sufficient evidence that ordering security would terminate the litigation or prevent the respondents from pursuing their action. The respondents' speculative allegations and lack of evidence regarding attempts to obtain financial assistance from creditors were insufficient. The court was not persuaded that the applicants caused the financial difficulties of the fourth respondent. The factors favouring the respondents did not outweigh the prejudice to the applicants if unable to recover costs. Accordingly, the respondents were ordered to furnish security...

Court Disposition

Application granted. Respondents ordered to furnish security for costs; action stayed until security is provided.

Orders

  • The respondents are directed to furnish security for the applicants’ costs in an amount to be determined by the Registrar, such security to be furnished in the form and manner directed by the Registrar.
  • The action by the respondents against the applicants is stayed until security is furnished as directed.