Van Eyk and Another v Halton Boerdery Belange CC and Others (60356/2012, 60356/2C) [2015] ZAGPPHC 582 (31 July 2015)

Van Eyk and Another v Halton Boerdery Belange CC and Others (60356/2012, 60356/2C) [2015] ZAGPPHC 582 (31 July 2015)

The court found that the applicants failed to provide credible evidence that the respondents would be unable to satisfy an adverse cost order if unsuccessful. The founding affidavit merely repeated the grounds set out in the Rule 47(1) notice without substantiating them with facts. Supplementary heads of argument submitted by the applicants did not constitute evidence. The applicants did not discharge the onus required to justify an order for security for costs under Rule 47(1) or Section 8 of the Close Corporation Act. The respondents' failure to produce financial statements did not shift the burden, and there was no basis to find the respondents' claim vexatious or abusive. Accordingly,...

Citation
[2015] ZAGPPHC 582
Parties
Applicant: Leona van Eyk; Applicant: Pieter Naude van Eyk; Respondent: Halton Boerdery Belange CC; Respondent: Louisa Madalina Petronella; Respondent: Johanna Wessels
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 July 2015
Case Number
60356/2012, 60356/2C
Procedural Posture
Stay Application / Application for Security for Costs Under Rule 47(1)
Outcome
Application dismissed with costs.
Judges
MNGQIBISA-THUSI
Legal Topics
Security for Costs, Close Corporation Liability, Onus of Proof, Vexatious Litigation
Civil Procedure Commercial and Corporate Security for Costs Close Corporation Liability Onus of Proof Vexatious Litigation

Case Brief

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Parties

Leona van Eyk

Applicant

Pieter Naude van Eyk

Applicant

Halton Boerdery Belange CC

Respondent

Louisa Madalina Petronella

Respondent

Johanna Wessels

Respondent

Procedural Posture

Stay Application / Application for Security for Costs Under Rule 47(1)

Legal Issues

  1. 1 Whether the respondents should be ordered to furnish security for costs under Rule 47(1).
  2. 2 Whether the applicants have provided credible evidence that the respondents will be unable to satisfy an adverse cost order.
  3. 3 Whether the respondents' claim is vexatious or amounts to an abuse of process.

Ratio Decidendi

The court found that the applicants failed to provide credible evidence that the respondents would be unable to satisfy an adverse cost order if unsuccessful. The founding affidavit merely repeated the grounds set out in the Rule 47(1) notice without substantiating them with facts. Supplementary heads of argument submitted by the applicants did not constitute evidence. The applicants did not discharge the onus required to justify an order for security for costs under Rule 47(1) or Section 8 of the Close Corporation Act. The respondents' failure to produce financial statements did not shift the burden, and there was no basis to find the respondents' claim vexatious or abusive. Accordingly,...

Court Disposition

Application dismissed with costs.

Orders

  • The application for security for costs is dismissed with costs.