Smith v Parker Beusekom Partnership - Application for Leave to Appeal (773/2021) [2023] ZAFSHC 382 (6 October 2023)

Smith v Parker Beusekom Partnership - Application for Leave to Appeal (773/2021) [2023] ZAFSHC 382 (6 October 2023)

The court found that the respondent's status changed from incola to peregrinus when he emigrated to Israel during the course of litigation. The applicant issued a second notice demanding security for costs after the respondent amended his particulars of claim to reflect his new residence. The court acknowledged that the circumstances surrounding the second notice were different from those of the first notice and that the applicant's demand for security was justified in light of the respondent's changed status. The court concluded that another court may reach a different conclusion regarding the furnishing of security for costs and therefore granted leave to appeal.

Citation
[2023] ZAFSHC 382
Parties
Applicant: Shaun Smith; Respondent: Parker Beusekom Partnership
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
6 October 2023
Case Number
773/2021
Procedural Posture
Leave to Appeal / Application for Leave to Appeal
Outcome
Leave to appeal to the full bench of the Free State High Court is granted.
Judges
Mhlambi
Legal Topics
Security for Costs, Incola Vs Peregrinus, Rule 47, Leave to Appeal
Civil Procedure Security for Costs Incola Vs Peregrinus Rule 47 Leave to Appeal

Case Brief

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Parties

Shaun Smith

Applicant

Parker Beusekom Partnership

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal

Legal Issues

  1. 1 Whether the applicant was entitled to demand security for costs after the respondent amended his particulars of claim to reflect residence in Israel.
  2. 2 Whether the change in the respondent's status from incola to peregrinus during litigation justified a renewed demand for security for costs.
  3. 3 Whether the court erred in its assessment of the applicant's response to the first and second notices for security.

Ratio Decidendi

The court found that the respondent's status changed from incola to peregrinus when he emigrated to Israel during the course of litigation. The applicant issued a second notice demanding security for costs after the respondent amended his particulars of claim to reflect his new residence. The court acknowledged that the circumstances surrounding the second notice were different from those of the first notice and that the applicant's demand for security was justified in light of the respondent's changed status. The court concluded that another court may reach a different conclusion regarding the furnishing of security for costs and therefore granted leave to appeal.

Court Disposition

Leave to appeal to the full bench of the Free State High Court is granted.

Orders

  • The application for leave to appeal to the full bench of this court is granted.
  • Costs will be costs in the appeal.