Joint Venture Kgatelopele Events and Marketing Management CC & Shiyalento Promotions CC v Rustenburg Local Municipality (1400/06) [2007] ZANWHC 57 (4 October 2007)

IN THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA PROVINCIAL DIVISION

CA. NO.: 1400/06

In the matter between:

THE JOINT VENTURE KGATELOPELE EVENTS AND

MARKETING MANAGEMENT CC & SHIYALENTO

PROMOTIONS CC APPLICANT

and

RUSTENBURG LOCAL MUNICIPALITY RESPONDENT

JUDGMENT

LANDMAN J:

[1] The Joint Venture of Kgatelopele Events and Marketing Managements CC and Shiyalento Promotions CC, the plaintiff, instituted action against the Rustenburg Local Municipality, the defendant. The Municipality (applicant) applies in terms of rule 47(3) of the Uniform Rules of Court for an order requiring the joint venture (respondent) to provide security in an amount of R60 000 and for it to pay the costs of the application.

[2] On 27 September I made an order which reads:

“1. The Respondent is to provide security for costs to the Applicant in an amount fixed by the registrar within 10(ten) days of it being so fixed.

2. The Respondent pays the costs of this application.”

These are the reasons for the order.

Entitlement to security

[3] I am satisfied that a case has been made out as required by s 8 of the Close Corporation Act 69 of 1984. The Municipality alleges that the claim is vexatious and that it believes the close corporations which compromise the Joint Venture will be unable to pay the costs of the Municipality if the Municipality is successful in its defence. The failure by the Joint Venture to oppose this application strengthens the Municipality’s case.

Amount of security

[4] The Municipality claims security in an amount of R60 000. Prior to the promulgation of Uniform Rules of Court a High Court would determined the amount of security itself taking into account the views of the parties, the registrar and taxing master, the history of the litigation and the court’s own experience in matters relating to costs. The amount of costs must be the probable amount of the costs of the action. See Nederlandsche Z A Hypotheek Bank v Mears 1913 TPD 704.

[5] The Uniform Rules provide in Rule 47(3) and (5) that:

“(3) If the party from whom security is demanded contests his liability to give security or if he fails or refuses to furnish security in the amount demanded or the amount fixed by the registrar within ten days of the demand or the registrar’s decision, the other party may apply to court on notice for an order that such security be given and that the proceedings be stayed until such order is complied with.

. . . . .

(5) Any security for costs shall, unless the court otherwise directs, or the parties otherwise agree, be given in the form, amount and manner directed by the registrar.”

[6] In accordance with this Sub-rule 47(5) the court merely determines the entitlement to security. The actual amount of security is determined by the registrar and taxing master before an application is lodged if the other party does not challenge the applicant’s entitlement to security. See Rule 47(3). In other cases the registrar and taxing master determines the amount of security after the court orders security to be furnished. See the order sought in Gisman Mining and Engineering Co (Pty) Ltd (In Liquidation) v LTA Earthworks (Pty) Ltd 1977 (4) SA 25 (W) 26E. I do not say that a court may not, in the exercise of its inherent jurisdiction, determine costs in appropriate circumstances. But it seems practical to leave the matter to the register and taxing master whose decision may be reviewed by an aggrieved party.

Order

[7] In the result I make the order set out above.

____________________

A A LANDMAN

JUDGE OF THE HIGH COURT

APPEARANCES:

FOR THE APPLICANT : ADV ZWIEGELAAR

FOR THE RESPONDENT : NO APPEARANCE

ATTORNEYS:

FOR THE APPLICANT : BOTHA COETZER & SMITH

FOR THE RESPONDENT : SEMAUSHU ATTORNEYS

DATE OF HEARING : 27 SEPTEMBER 2007

DATE OF JUDGMENT : 4 OCTOBER 2007