Hennie Lambrechts Architects v Bombaneiro Investments (Pty) Ltd, In re: Bombaneiro Investments (Pty) Ltd v Hennie Lambrechts Architects (3032/2012) [2013] ZAFSHC 8; 2013 (2) SA 477 (FB) (14 February 2013)

Hennie Lambrechts Architects v Bombaneiro Investments (Pty) Ltd, In re: Bombaneiro Investments (Pty) Ltd v Hennie Lambrechts Architects (3032/2012) [2013] ZAFSHC 8; 2013 (2) SA 477 (FB) (14 February 2013)

The court held that, while the applicant raised concerns regarding vexatious litigation and the respondent's financial standing, the principles established in relevant case law indicate that an incola company is not ordinarily required to provide security for costs. The absence of section 13 of the Companies Act does not automatically invoke common law requirements for security. Given that leave to appeal should not be refused unless the case is hopeless, and considering the possibility that another court may reach a different conclusion, leave to appeal is granted to the Full Bench of the Free State High Court.

Citation
[2013] ZAFSHC 8
Parties
Applicant: Hennie Lambrechts Architects; Respondent: Bombaneiro Investments (Pty) Ltd; Plaintiff: Bombaneiro Investments (Pty) Ltd; Defendant: Hennie Lambrechts Architects
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
14 February 2013
Case Number
3032/2012
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Security for Costs
Outcome
Leave to appeal granted to the Full Bench of the Free State High Court; costs of the application to be costs in the appeal.
Judges
S.J. Thamage
Legal Topics
Security for Costs, Companies Act Section 13, Vexatious Litigation, Incola Company, Leave to Appeal
Civil Procedure Commercial and Corporate Security for Costs Companies Act Section 13 Vexatious Litigation Incola Company Leave to Appeal

Case Brief

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Parties

Hennie Lambrechts Architects

Applicant

Bombaneiro Investments (Pty) Ltd

Respondent

Bombaneiro Investments (Pty) Ltd

Plaintiff

Hennie Lambrechts Architects

Defendant

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment on Security for Costs

Legal Issues

  1. 1 Whether the absence of section 13 of the Companies Act requires the application of common law regarding security for costs.
  2. 2 Whether the court erred in its consideration of vexatious litigation.
  3. 3 Whether the respondent's financial position and nominal capacity were properly considered.

Ratio Decidendi

The court held that, while the applicant raised concerns regarding vexatious litigation and the respondent's financial standing, the principles established in relevant case law indicate that an incola company is not ordinarily required to provide security for costs. The absence of section 13 of the Companies Act does not automatically invoke common law requirements for security. Given that leave to appeal should not be refused unless the case is hopeless, and considering the possibility that another court may reach a different conclusion, leave to appeal is granted to the Full Bench of the Free State High Court.

Court Disposition

Leave to appeal granted to the Full Bench of the Free State High Court; costs of the application to be costs in the appeal.

Orders

  • Leave to appeal is granted to the Full Bench of the Free State High Court.
  • Costs of this application shall be costs in the appeal.