Storegate Africa (Pty) Ltd. v Airlink Cargo International (Pty) Ltd (071/04) [2005] ZASCA 133 (30 March 2005)

Storegate Africa (Pty) Ltd. v Airlink Cargo International (Pty) Ltd (071/04) [2005] ZASCA 133 (30 March 2005)

The Supreme Court of Appeal held that an order granting security for costs is appealable because it finally determines the entitlement to security, irrespective of subsequent adjustments to the amount. The respondent failed to provide credible testimony as required by section 13 of the Companies Act to establish that the appellant would be unable to pay costs if unsuccessful. The only evidence presented was a subrogation agreement, which does not affect the appellant's liability for costs. The court below erred by placing the onus on the appellant to prove its ability to pay before the respondent had satisfied the jurisdictional requirements. The respondent's arguments regarding...

Citation
[2005] ZASCA 133
Parties
Appellant: Storegate Africa (Pty) Limited; Respondent: Airlink Cargo International (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 March 2005
Case Number
071/04
Procedural Posture
Civil Appeal / Appeal Against Order for Security for Costs
Outcome
Appeal upheld with costs. The order of the court a quo is set aside and replaced with an order dismissing the application for security for costs.
Judges
Scott, Farlam, Conradie, Cloete, Heher
Legal Topics
Security for Costs, Companies Act Section 13, Subrogation, Jurisdictional Facts
Civil Procedure Commercial and Corporate Security for Costs Companies Act Section 13 Subrogation Jurisdictional Facts

Case Brief

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Parties

Storegate Africa (Pty) Limited

Appellant

Airlink Cargo International (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Against Order for Security for Costs

Legal Issues

  1. 1 Is an order granting security for costs appealable under South African law.
  2. 2 Did the respondent establish jurisdictional facts required by section 13 of the Companies Act for an order of security for costs.
  3. 3 Does subrogation by an insurer affect the obligation of a plaintiff company to provide security for costs.

Ratio Decidendi

The Supreme Court of Appeal held that an order granting security for costs is appealable because it finally determines the entitlement to security, irrespective of subsequent adjustments to the amount. The respondent failed to provide credible testimony as required by section 13 of the Companies Act to establish that the appellant would be unable to pay costs if unsuccessful. The only evidence presented was a subrogation agreement, which does not affect the appellant's liability for costs. The court below erred by placing the onus on the appellant to prove its ability to pay before the respondent had satisfied the jurisdictional requirements. The respondent's arguments regarding...

Court Disposition

Appeal upheld with costs. The order of the court a quo is set aside and replaced with an order dismissing the application for security for costs.

Orders

  • The appeal is upheld with costs.
  • The judgment of the court a quo is set aside.