Nielson v Rautenbach and Others (45629/2013) [2013] ZAGPPHC 356; 2014 (3) SA 17 (GNP) (15 November 2013)

Nielson v Rautenbach and Others (45629/2013) [2013] ZAGPPHC 356; 2014 (3) SA 17 (GNP) (15 November 2013)

The court held that, following the repeal of section 13 of the Companies Act 61 of 1973 and in the absence of any legislative provision requiring security for costs, the common law principle applies: an incola, including a company in liquidation domiciled in South Africa, cannot be compelled to furnish security for costs unless the litigation is vexatious or reckless. The court found no exceptional circumstances or evidence that the respondents' second eviction application was vexatious or reckless. The delay in settling the previous costs order did not amount to vexatious conduct. The court exercised its discretion and declined to order the respondents to furnish security for costs.

Citation
[2013] ZAGPPHC 356
Parties
Applicant: Leigh-Ann Nielson; Respondent: Elsje Rautenbach N.O.; Respondent: Ephraim Makhese N.O.; Respondent: City of Johannesburg
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 November 2013
Case Number
45629/2013
Procedural Posture
Security for Costs Application / Application for Security for Costs Prior to Second Eviction Proceedings
Outcome
Application dismissed with costs.
Judges
P M Mabuse
Legal Topics
Security for Costs, Vexatious Litigation, Common Law Principles, Companies Act Repeal
Civil Procedure Security for Costs Vexatious Litigation Common Law Principles Companies Act Repeal

Case Brief

Summary, issues, holding and outcome

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Parties

Leigh-Ann Nielson

Applicant

Elsje Rautenbach N.O.

Respondent

Ephraim Makhese N.O.

Respondent

City of Johannesburg

Respondent

Procedural Posture

Security for Costs Application / Application for Security for Costs Prior to Second Eviction Proceedings

Legal Issues

  1. 1 Whether the respondents should be ordered to furnish security for costs in the second eviction application.
  2. 2 Whether the litigation by the respondents is vexatious, reckless or unmeritorious.
  3. 3 Whether the repeal of section 13 of the Companies Act 61 of 1973 affects the applicant's entitlement to security for costs.

Ratio Decidendi

The court held that, following the repeal of section 13 of the Companies Act 61 of 1973 and in the absence of any legislative provision requiring security for costs, the common law principle applies: an incola, including a company in liquidation domiciled in South Africa, cannot be compelled to furnish security for costs unless the litigation is vexatious or reckless. The court found no exceptional circumstances or evidence that the respondents' second eviction application was vexatious or reckless. The delay in settling the previous costs order did not amount to vexatious conduct. The court exercised its discretion and declined to order the respondents to furnish security for costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application for security for costs is dismissed.
  • The applicant is ordered to pay the costs of the application.