Smith v Parker Beusekom Partnership - Application for Leave to Appeal (773/2021) [2023] ZAFSHC 382 (6 October 2023)
- Citation
- [2023] ZAFSHC 382
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Mhlambi
- Case number
- 773/2021
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Mhlambi
- Case number
- 773/2021
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
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.
02
Material facts
Parties
Shaun Smith
Applicant Counsel: Adv. J ElsParker Beusekom Partnership
Respondent Counsel: Adv. CD Pienaar03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal
04
Questions and positions
Legal issues
- 01
Whether the applicant was entitled to demand security for costs after the respondent amended his particulars of claim to reflect residence in Israel.
- 02
Whether the change in the respondent's status from incola to peregrinus during litigation justified a renewed demand for security for costs.
- 03
Whether the court erred in its assessment of the applicant's response to the first and second notices for security.
Party arguments
- Applicant
- The applicant argued that the respondent's emigration to Israel changed his status from incola to peregrinus, which occurred during the litigation. The applicant contended that the second notice for security for costs was justified as soon as the respondent amended his particulars of claim to reflect his new residence. The applicant maintained that the court failed to properly consider the changed circumstances and the legal implications of the respondent's status change.
- Respondent
- The respondent maintained that the applicant failed to meaningfully address the first notice for security for costs and that the circumstances underlying the second notice were not materially different. The respondent argued that the court correctly found that the applicant had not made out a case for the furnishing of security for costs and that the change in address did not warrant a different outcome.
05
Court’s reasoning
Legal principles
- 01
Rule 47 of the Uniform Rules of Court
A party who becomes a peregrinus during litigation may be required to furnish security for costs if circumstances justify such relief.
- 02
Relevant case law as considered by the court
Courts have discretion to grant relief for security for costs for extended periods, especially where a party's status changes from incola to peregrinus.
06
Ratio, limits and disposition
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.
Obiter and limits
- Courts are amenable to granting relief for security for costs for more extended periods than in the present case.
- The change in a party's status during litigation can materially affect the entitlement to security for costs.
Court disposition
Leave to appeal to the full bench of the Free State High Court is granted.
- The application for leave to appeal to the full bench of this court is granted.
- Costs will be costs in the appeal.
Source and reliance status
Free State High Court, Bloemfontein
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.
Free State High Court, Bloemfontein
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Case No: 773/2021
Reportable: NO
Of Interest to other Judges: NO
Circulate to Magistrates: NO
In the matter between:
SHAUN
SMITH Applicant and
PARKER
BEUSEKOM PARTNERSHIP Respondent
JUDGMENT BY: MHLAMBI, J
DELIVERED ON: 06 OCTOBER 2023
APPLICATION FOR LEAVE
TO APPEAL
[1] The application for leave to appeal is based on various grounds. It is, in the main, directed towards paragraph 8 of the judgment where I found, amongst others, that the applicant had not made out a case against the respondent for the furnishing of security for costs.
[2] On 14 June 2022 the respondent, as the plaintiff in the action, amended his particulars of claim by substituting his South African address with an address at 4[…] Ha’Dolev, section 3, Caesarea 3[…] Israel. On 29 September 2022, the applicant filed its notice of demand for security for costs in terms of Rule 47. The first notice in terms of this Rule was delivered on 23 February 2022.
[3] The applicant’s contention in the grounds of appeal is that the court formed the view that the applicant failed to meaningfully deal with the first notice, instead of finding that the respondent’s situation changed at /or about the issuing of the first notice with the applicant being brought under the impression that the respondent resided in Plettenberg bay. The court failed to find that the situation of both the applicant and the respondent, with regard to the second notice for security, was different from that underlying the first notice.
[4] The court therefore failed to consider that the respondent’s status changed from that of an incola to peregrinus when he emigrated to Israel and that the change took place during the litigation. The second notice demanding security for costs was issued as soon as the plaintiff amended his particulars of claim recording the fact of his residence in Israel. Having considered the case law, it is obvious that the courts are amenable to granting relief for more extended periods than in casu. Consequently, I am of the view that in these circumstances, another court would come to a different conclusion.
[5] I therefore make the following order:
Order:
1. The application for leave to appeal to the full bench of this court is granted.
2. Costs will be costs in the appeal.
MHLAMBI, J
On behalf of the applicant: Adv. J Els Instructed by: McIntyre Van der Post 12 Barnes Street Westdene Bloemfontein On behalf of the respondent: Adv. CD Pienaar Instructed by: Hendre Conradie INC 119 President Reitz Ave Westdene
BLOEMFONTEIN
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