South Africa Case Law

Hennie Lambrechts Architects v Bombaneiro Investments (Pty) Ltd, In re: Bombaneiro Investments (Pty) Ltd v Hennie Lambrechts Architects (3032/2012)

Hennie Lambrechts Architects v Bombaneiro Investments (Pty) Ltd, In re: Bombaneiro Investments (Pty) Ltd v Hennie Lambrechts Architects (3032/2012) [2013] ZAFSHC 8; 2013 (2) SA 477 (FB) (14 February 2013)

Court

Free State High Court, Bloemfontein

Case number

3032/2012

Judge

S.J. Thamage

The court held that, while the applicant raised concerns regarding vexatious litigation and the respondent's financial standing, the principles established in relevant case law indicate that an incola company is not ordinarily required to provide security for costs. The absence of section 13 of the Companies Act does not automatically invoke common law requirements for security. Given that leave to appeal should not be refused unless the case is hopeless, and considering the possibility that another court may reach a different conclusion, leave to appeal is granted to the Full Bench of the Fr…

Source excerpt

• Security For Costs
• Companies Act Section 13
• Vexatious Litigation
• Incola Company
• Leave To Appeal

Williams v Trifecta 165 (Pty) Ltd and Others (13960/2009)

Williams v Trifecta 165 (Pty) Ltd and Others (13960/2009) [2011] ZAWCHC 335 (23 June 2011)

Court

Western Cape High Court, Cape Town

Case number

13960/2009

Judge

Davis

The court held that security for costs could not be ordered on a Rule 31(5)(d) reconsideration application, and dismissed the application with costs.

• Security For Costs
• Companies Act Section 13
• Rule 31 Reconsideration
• Default Judgment
• Urgent Application
• Security-for-costs

Fourways Precinct (Pty) Ltd v Signal Capital Securities (Pty) Ltd in re: Signal Capital and Securities v Fourways Precinct (Pty) Ltd

Fourways Precinct (Pty) Ltd v Signal Capital Securities (Pty) Ltd in re: Signal Capital and Securities v Fourways Precinct (Pty) Ltd [2011] ZAFSHC 37 (24 February 2011)

Court

Free State High Court, Bloemfontein

Case number

1565/2008

Judge

S.P.B. Hancke

High Court granted security for costs against a company plaintiff, upheld section 13 of the Companies Act, and dismissed a counter-application to review the quantum.

• Security For Costs
• Companies Act Section 13
• Commanditarian Partnership
• Quantum Of Security
• Constitutional Challenge
• Review Of Registrar Determination

Francis NO and Another v Alitori 1470 CC (6113/2009)

Francis NO and Another v Alitori 1470 CC (6113/2009) [2010] ZAFSHC 80 (25 June 2010)

Court

Free State High Court, Bloemfontein

Case number

6113/2009

Judge

J B Mthembu

The Applicants established on a balance of probabilities that there is reason to believe the Respondent will be unable to pay adverse costs. The Respondent's financial statements, including unsecured loans and assets in dispute, demonstrate that liabilities exceed assets and the Respondent is admittedly insolvent. The Court found no special circumstances to deny the Applicants' prima facie right to security. The argument that the amount of security must be determined by the Registrar before approaching the Court was rejected, as the Respondent contested its liability to provide security. The…

Source excerpt

• Security For Costs
• Close Corporations Act
• Companies Act Section 13
• Balance Sheet Analysis
• Court Discretion On Security

Angermaier v De Wet and Others (09/12628)

Angermaier v De Wet and Others (09/12628) [2010] ZAGPJHC 184 (5 June 2010)

Court

South Gauteng High Court, Johannesburg

Case number

09/12628

Judge

A J Bester

The court found that the Applicant failed to provide credible testimony that the Respondents would be unable to pay a costs order if unsuccessful in the main action. The Applicant relied solely on allegations in pleadings, which do not constitute evidence. The Respondents demonstrated that the liquidation account held sufficient funds to cover anticipated costs and that any costs order would be payable immediately and enjoy preference. The Applicant's concerns about dissipation of funds were unfounded, as the funds could not be used for other purposes until confirmation of the liquidation and…

Source excerpt

• Security For Costs
• Companies Act Section 13
• Liquidation
• Rule 47 Application
• Condonation Of Late Filing

SA Truck Bodies (Pty) Ltd v Moodliar NO and Others (5255/2006)

SA Truck Bodies (Pty) Ltd v Moodliar NO and Others (5255/2006) [2010] ZAWCHC 13 (11 February 2010)

Court

Western Cape High Court, Cape Town

Case number

5255/2006

Judge

Freund

The applicant established, by credible testimony and respondents' admission, that the liquidators will be unable to pay costs if unsuccessful. The court weighed the injustice to the applicant of being exposed to irrecoverable costs against the potential prejudice to the respondents if security is ordered. The respondents failed to provide evidence of attempts to raise funds for security and were unforthcoming about litigation funding. Although there was delay in bringing the application, the court found it not materially prejudicial given the overlap of issues in the withdrawn and pending act…

Source excerpt

• Security For Costs
• Companies Act Section 13
• Liquidation
• Rule 47 Uniform Rules
• Access To Court
• Balancing Of Equities

Kini Bay Village Association (Pty) Ltd v Nelson Mandela Metropolitan Municipality and Others (434/07)

Kini Bay Village Association (Pty) Ltd v Nelson Mandela Metropolitan Municipality and Others (434/07) [2008] ZASCA 66; [2008] 4 All SA 50 (SCA) ; 2009 (2) SA 166 (SCA) (29 May 2008)

Court

Supreme Court of Appeal

Case number

434/07

Judges

Harms, Cameron, Van Heerden, Ponnan, Maya

The Supreme Court of Appeal held that the court below correctly exercised its discretion in ordering the appellant to furnish security for costs under section 13 of the Companies Act. The appellant, though acting in pursuit of constitutional rights, failed to provide evidence that an order for security would halt its case or that it had exhausted efforts to obtain financial assistance from its members, who were the ultimate beneficiaries and were in fact funding the litigation. The court found no basis to depart from the general rule that costs follow the result, even in constitutional matter…

Source excerpt

• Security For Costs
• Companies Act Section 13
• Judicial Discretion
• Constitutional Litigation Costs

Devereux Marine CC v Classic Sailing Adventures (Pty) Ltd (AC38/2006)

Devereux Marine CC v Classic Sailing Adventures (Pty) Ltd (AC38/2006) [2008] ZAWCHC 197 (15 May 2008)

Court

Western Cape High Court, Cape Town

Case number

AC38/2006

Judge

Cleaver

The court granted an order for security for costs against the respondent, requiring R350,000, despite the application being late and procedurally imperfect.

• Security For Costs
• Rule 47 Application
• Admiralty Jurisdiction Regulation Act
• Companies Act Section 13
• Security-for-costs
• Rule-47

Nasionale Aartappelkoöperasie Bpk. v Pricewaterhousecoopers Ingelyf (055/07)

Nasionale Aartappelkoöperasie Bpk. v Pricewaterhousecoopers Ingelyf (055/07) [2007] ZASCA 166; [2007] SCA 166 (RSA) (29 November 2007)

Court

Supreme Court of Appeal

Case number

055/07

Judges

Harms, Lewis, Hurt

The Supreme Court of Appeal held that the trial court correctly exercised its discretion in ordering the appellant to provide security for costs. The appellant failed to provide current financial statements and admitted its parlous financial state, justifying the inference that it could not satisfy an adverse costs order. The delay in bringing the application for security was not unreasonable or prejudicial, as the respondent was kept in the dark about the appellant's finances and acted reasonably in relying on the appellant's representations. The court found no evidence that the respondent's…

Source excerpt

• Security For Costs
• Exercise Of Judicial Discretion
• Companies Act Section 13
• Right Of Access To Court
• Delay In Application
• Insurance And Costs

Glenrand Mib Financial Services (Pty) Ltd and Others v Van Den Heever NO and Others (4445/07)

Glenrand Mib Financial Services (Pty) Ltd and Others v Van Den Heever NO and Others (4445/07) [2007] ZAGPHC 392 (23 November 2007)

Court

High Courts - Gauteng

Case number

4445/07

Judge

PA Meyer

High Court application for security for costs granted under section 13 of the Companies Act and Rule 47, with the action stayed pending security.

• Security For Costs
• Companies Act Section 13
• Liquidation
• Costs Award
• Access To Court
• Security-for-costs