Omar v Sakoor (18659/12) [2013] ZAGPJHC 78 (9 April 2013)
- Citation
- [2013] ZAGPJHC 78
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Van Oosten
- Case number
- 18659/12
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Van Oosten
- Case number
- 18659/12
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the respondent, being an incola of the court, cannot be compelled to furnish security for costs. The application was further flawed because the respondent is impecunious and would not be able to pay the amount sought. Granting the order would deprive the respondent of her constitutional right of access to the courts as enshrined in section 34 of the Constitution. The application was dismissed with 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.
02
Material facts
Parties
Zehir Omar
ApplicantErica Miriam Sakoor
RespondentAmounts and remedies
- Security for Costs Sought: ZAR 300,000
- Counterclaim Amount: ZAR 16,850
03
Procedural history
Posture
Security for Costs Application / Application for Security for Costs Under Rule 47
04
Questions and positions
Legal issues
- 01
Whether the respondent, as an incola of the court, can be compelled to furnish security for costs.
- 02
Whether the respondent's impecuniosity and lack of assets justify an order for security for costs.
- 03
Whether granting the order would infringe the respondent's constitutional right of access to courts under section 34.
Party arguments
- Applicant
- The applicant argued that the respondent had not made out a proper cause of action in her summons and that the action was frivolous, thus justifying an order for security for costs in terms of Rule 47.
- Respondent
- The respondent contended that she is an incola of the court and cannot be compelled to furnish security for costs. She further argued that she is impecunious and that granting the order would deprive her of her constitutional right of access to the courts.
05
Court’s reasoning
Legal principles
- 01
Magida v Minister of Police 1987 (1) SA 1 (A) 15
An incola of the court cannot be compelled to furnish security for costs.
- 02
Section 34 of the Constitution
A party should not be deprived of access to the courts due to inability to pay security for costs.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the respondent, being an incola of the court, cannot be compelled to furnish security for costs. The application was further flawed because the respondent is impecunious and would not be able to pay the amount sought. Granting the order would deprive the respondent of her constitutional right of access to the courts as enshrined in section 34 of the Constitution. The application was dismissed with costs.
Obiter and limits
- The proper time to challenge the sufficiency of the cause of action is before filing a plea, typically by way of exception.
- Taking further steps in proceedings, such as filing a plea and instituting a counterclaim, waives the right to raise preliminary objections to the cause of action.
Court disposition
Application dismissed with costs.
- The application for security for costs is dismissed.
- The applicant is ordered to pay the costs of the application.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
IN THE HIGH COURT OF
SOUTH AFRICA
(SOUTH GAUTENG HIGH COURT, JOHANNESBURG)
CASE NO: 18659/12
DATE: 2012-08-30
In the matter between
ZEHIR
OMAR Applicant and
ERICA MIRIAM SAKOOR Respondent
Security for costs - application for in terms of Rule of Court 47 –respondent an incola of this court and cannot be compelled to furnish security - respondent in addition impecunious - order sought if granted would deprive the respondent of her constitutional right of access to the courts enshrined in s 34 of the Constitution - application dismissed.
J U D G M E N T
VAN OOSTEN J: This is an application for the furnishing of security for costs in terms of the provisions of Rule of Court 47(1). The amount of the security sought is R300 000-00 to be paid within 30 days of the order. The respondent in this application is the plaintiff and the applicant, a firm of attorneys, the defendant in a pending action between the parties. I will retain the nomenclature of the parties as in the action.
The plaintiff instituted action against the defendant based on what appears from inelegantly framed particulars of claim, to be professional negligence. The defendant has filed a plea and has instituted a counterclaim for payment of its fees in the sum of R16 850-00. The pleadings
have closed.
The only ground advanced in support of the application was that no proper cause of action has been made out in the summons and that the action was frivolous. The contention does not avail the defendant: the opportune time for addressing this aspect was before filing a plea and then by way of exception. Not only has the defendant failed to do that, it has also taken further steps in the proceedings by filing a plea and instituting a counterclaim.
The application, in any event, is flawed in its premise: the plaintiff is an incola of this court and accordingly she cannot be compelled to furnish security (see Magida v Minister of Police 1987 (1) SA 1 (A) 15). But, the application is doomed to failure for another reason: the plaintiff does not possess any assets and she would not be able to pay the amount sought as security for costs. An order for payment of security for costs would accordingly deprive the plaintiff of her right of access to the courts, enshrined in s 34 of the Constitution.
In the result the application is dismissed with costs.
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