Trakman NO v Livshitz and Others (709/92) [1994] ZASCA 132; [1995] 1 All SA 434 (A) (26 September 1994)

Trakman NO v Livshitz and Others (709/92) [1994] ZASCA 132; [1995] 1 All SA 434 (A) (26 September 1994)

The Supreme Court of Appeal held that the appellant, as liquidator, had locus standi to bring the review proceedings regarding the Registrar's determination of security for costs. The court found that the judge a quo erred in dismissing the application on the basis of alleged cession and non-disclosure, as the appellant's locus standi was established independently of those issues. The court further held that the principle requiring utmost good faith and full disclosure in ex parte applications does not justify dismissal of opposed motion proceedings for non-disclosure or alleged dishonesty; such conduct may be addressed by adverse costs orders but not by denying substantive relief. The...

Citation
[1994] ZASCA 132
Parties
Appellant: Selwyn Trakman N O; Respondent: B Livshitz; Respondent: Finansfin (Proprietary) Limited; Respondent: Johan Erasmus N O
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 September 1994
Case Number
709/92
Procedural Posture
Civil Appeal / Appeal From the Witwatersrand Local Division; Review of Registrar's Decision Regarding Security for Costs
Outcome
Appeal upheld; orders of the court a quo set aside; review application and counter-applications remitted for hearing before a different judge.
Judges
Joubert, Smalberger, Kumleben, FH Grosskopf, Harms
Legal Topics
Security for Costs, Locus Standi, Review of Administrative Action, Punitive Costs, Cession of Claims
Civil Procedure Commercial and Corporate Security for Costs Locus Standi Review of Administrative Action Punitive Costs Cession of Claims

Case Brief

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Parties

Selwyn Trakman N O

Appellant

B Livshitz

Respondent

Finansfin (Proprietary) Limited

Respondent

Johan Erasmus N O

Respondent

Procedural Posture

Civil Appeal / Appeal From the Witwatersrand Local Division; Review of Registrar's Decision Regarding Security for Costs

Legal Issues

  1. 1 Whether the appellant had locus standi to bring review proceedings against the Registrar's determination of security for costs.
  2. 2 Whether the failure to disclose the cession of claims constituted dishonesty justifying dismissal of the application.
  3. 3 Whether the order dismissing the review application and granting punitive costs was appealable.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant, as liquidator, had locus standi to bring the review proceedings regarding the Registrar's determination of security for costs. The court found that the judge a quo erred in dismissing the application on the basis of alleged cession and non-disclosure, as the appellant's locus standi was established independently of those issues. The court further held that the principle requiring utmost good faith and full disclosure in ex parte applications does not justify dismissal of opposed motion proceedings for non-disclosure or alleged dishonesty; such conduct may be addressed by adverse costs orders but not by denying substantive relief. The...

Court Disposition

Appeal upheld; orders of the court a quo set aside; review application and counter-applications remitted for hearing before a different judge.

Orders

  • The appeal is upheld, with costs, including the costs consequent upon the employment of two counsel.
  • The orders of the court a quo in relation to both the review application and the counter-applications are set aside and replaced with the following order: 'The first and second respondents' point in limine is dismissed with costs.'