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South Africa Judgment

South Gauteng High Court, Johannesburg

Omar v Sakoor (18659/12) [2013] ZAGPJHC 78 (9 April 2013)

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Source document

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

Applicant

Erica Miriam Sakoor

Respondent

Amounts and remedies

  • Security for Costs Sought: ZAR 300,000
  • Counterclaim Amount: ZAR 16,850

03

Procedural history

  1. Posture

    Security for Costs Application / Application for Security for Costs Under Rule 47

04

Questions and positions

Legal issues

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

  1. 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.

  2. 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

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Judgment reading view

Judgment text

The complete available source text.

Source document

South Gauteng High Court, Johannesburg

Judgment

[2013] ZAGPJHC 78

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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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Magida v Minister of Police 1987 (1) SA 1 (A) 15

Case cited

Section 34 of the Constitution

Legislation

Legislation referenced in the available case record.

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