Harvey and Another v Red Alert Quanza Cleaning & Security Services (Pty) Ltd and Others (5050/2009) [2011] ZAECGHC 45 (8 September 2011)

Harvey and Another v Red Alert Quanza Cleaning & Security Services (Pty) Ltd and Others (5050/2009) [2011] ZAECGHC 45 (8 September 2011)

The court found that while the applicants were entitled to bring the application for dismissal due to the respondents' failure to provide security for costs within the stipulated period, the respondents ultimately complied by furnishing the required security. The applicants persisted with the application even after security was provided, which was not sensible given the circumstances. The conduct of both parties and their attorneys was considered, including the respondents' initial reluctance to comply and the applicants' refusal to negotiate the amount. The court held that the respondents should pay the costs of the application up to the filing of their answering affidavit, including the...

Citation
[2011] ZAECGHC 45
Parties
Applicant: Margaret Dai Harvey; Applicant: Mark Steven Benkenstein; Respondent: Red Alert Quanza Cleaning & Security Services (Pty) Limited (in liquidation); Respondent: Richard Pollock N.O.; Respondent: Jacqueline Fourie N.O.
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
8 September 2011
Case Number
5050/2009
Procedural Posture
Stay Application / Costs Determination Following Provision of Security for Costs
Outcome
Application for dismissal of respondents' claim not granted; costs awarded partially against respondents.
Judges
E Revelas
Legal Topics
Security for Costs, Fiduciary Duties, Prescription Act, Costs Award
Civil Procedure Commercial and Corporate Security for Costs Fiduciary Duties Prescription Act Costs Award

Case Brief

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Parties

Margaret Dai Harvey

Applicant

Mark Steven Benkenstein

Applicant

Red Alert Quanza Cleaning & Security Services (Pty) Limited (in liquidation)

Respondent

Richard Pollock N.O.

Respondent

Jacqueline Fourie N.O.

Respondent

Procedural Posture

Stay Application / Costs Determination Following Provision of Security for Costs

Legal Issues

  1. 1 Whether the respondents' claim should be dismissed for failure to provide security for costs within the time stipulated by the Registrar's ruling.
  2. 2 Who should bear the costs of the application after the security was eventually provided.
  3. 3 Whether the conduct of the parties and their attorneys justified a particular costs order.

Ratio Decidendi

The court found that while the applicants were entitled to bring the application for dismissal due to the respondents' failure to provide security for costs within the stipulated period, the respondents ultimately complied by furnishing the required security. The applicants persisted with the application even after security was provided, which was not sensible given the circumstances. The conduct of both parties and their attorneys was considered, including the respondents' initial reluctance to comply and the applicants' refusal to negotiate the amount. The court held that the respondents should pay the costs of the application up to the filing of their answering affidavit, including the...

Court Disposition

Application for dismissal of respondents' claim not granted; costs awarded partially against respondents.

Orders

  • The plaintiffs (respondents) are to pay the costs of this application on the opposed scale, up to and including the filing of the plaintiffs' answering affidavit, such costs including the perusal of the answering affidavit by the defendants' attorney.
  • As to the remainder of the application, the parties are to pay their own costs.