Pelser and Another v Khumalo (6177/2008) [2009] ZAFSHC 28 (12 March 2009)

Pelser and Another v Khumalo (6177/2008) [2009] ZAFSHC 28 (12 March 2009)

The court found that the applicants failed to establish that the respondent was vexatious, reckless, or had abused the court process. The respondent's previous failure to pay a costs order was remedied when he paid the outstanding amount in full upon notification. The respondent is an incola and his financial ability to pay future costs was not seriously in doubt. The mere inability to pay a costs order, without more, is not sufficient to justify an order for security for costs. The right of access to courts, as protected by section 34 of the Constitution, outweighs the applicants' concern about recovering costs. The application for security for costs was therefore dismissed.

Citation
[2009] ZAFSHC 28
Parties
Applicant: Coen Pelser; Applicant: Precision Car, Truck & Trailor; Respondent: Silas Khumalo
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
12 March 2009
Case Number
6177/2008
Procedural Posture
Security for Costs Application / Judgment on Application for Security for Costs
Outcome
Application dismissed. Costs awarded against the applicants.
Judges
C.J. Musi
Legal Topics
Security for Costs, Rule 47, Access to Courts, Vexatious Litigation
Civil Procedure Security for Costs Rule 47 Access to Courts Vexatious Litigation

Case Brief

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Parties

Coen Pelser

Applicant

Precision Car, Truck & Trailor

Applicant

Silas Khumalo

Respondent

Procedural Posture

Security for Costs Application / Judgment on Application for Security for Costs

Legal Issues

  1. 1 Whether the respondent should be ordered to furnish security for costs.
  2. 2 Whether the respondent's previous failure to pay a costs order justifies an order for security.
  3. 3 Whether the respondent's conduct is vexatious, reckless, or an abuse of court process.

Ratio Decidendi

The court found that the applicants failed to establish that the respondent was vexatious, reckless, or had abused the court process. The respondent's previous failure to pay a costs order was remedied when he paid the outstanding amount in full upon notification. The respondent is an incola and his financial ability to pay future costs was not seriously in doubt. The mere inability to pay a costs order, without more, is not sufficient to justify an order for security for costs. The right of access to courts, as protected by section 34 of the Constitution, outweighs the applicants' concern about recovering costs. The application for security for costs was therefore dismissed.

Court Disposition

Application dismissed. Costs awarded against the applicants.

Orders

  • The application is dismissed.
  • The applicants are ordered to pay the respondent's costs jointly and severally, the one paying the other to be absolved.