IN NORTH GAUTENG HIGH COURT

[REPUBLIC OF SOUTH AFRIC.  A]	

NOT REPORTABLE
NOT OF INTEREST TO OTHER JUDGES
REVISED
DATE: 29 JULY 2016
Case No.: 11802/2012

In the matter between:

ZEHIR OMAR	Applicant

and

MORCHENE OMAR                                            1st Respondent
RABIA NOORDMOHAMED                                 2nd Respondent

JUDGMENT

MNGQIBISA-THUSI, J:

[1]	The  respondents  have  instituted  proceedings  against  the applicant in  which  they  are  seeking,  inter  alia, that  the  applicant  return to
them all files and documents relating to matters which the applicant handled  for them  as their attorney.

[2]    As a result of the respondents'  application  ("the  main application"), the applicant  launched  these proceedings.
[3]   The applicant is seeking relief, in terms of Rule 47 of the Rules  of Court, on the  following terms:
3.1	an order directing the respondents ( applicants in the main proceedings) to  furnish  security  of  costs  in  the  amount  of R l 00 000.00;
3.2	an order staying the main application pending payment of the security for costs;
3.3	that should the respondents fail  to  pay  the  claimed security for costs, the applicant should be allowed to supplement his papers in the main application and apply for the dismissal  of the respondents' application; and
3.4	costs.

[4]   The general rule is that a party to an action or application who is domiciled in South Africa cannot be called upon to furnish security for costs. The fact that the party against whom a claim is made to furnish security  for costs appears not  have  sufficient  funds to meet a potential  cost order is not by  itself reason to call upon  him or   her to furnish security for costs. The court in exercising its discretion whether or not to order a party to an action or application to furnish security for costs, has to take into account the circumstances of the case, equity and fairness between the parties and the right of access to court as provided for section 34 of the Constitution. However,  if the court comes to the conclusion that the main proceedings are vexatious, it may order the party against whom security for costs is sought to furnish  such security.

[5]   It is applicant's contention that the respondents do not own any immovable property which is not mortgaged nor do they own any movable property sufficient to satisfy any cost order against them should their application fail. The applicant further submitted that the respondents' application is vexatious in that it relates to matters dating back 10 years ago. Further that even if the respondents succeed in the main application, the debt has prescribed. The applicant also raised the financial prejudice he would suffer if he succeeds in the main application and the respondents are unable to pay his costs.

[6]     The  respondents  are opposing  the  application.    It is the  submitted on behalf of the respondents that they do own property which is not burdened  by  a mortgage  bond.   In  his  answering  affidavit  the first
respondent contends that he owns a 20% share in a  company in which he, the applicant and their  other  siblings  are members.  It is the first respondent's contention that the company owns a farm on which both the applicant and the first respondent have built their family homes.  Further it is first respondent's contention that he is a businessman in the motor industry with sufficient equity to afford any costs order granted  against him and the second   respondent.

[7] Having read the documents filed of record and heard argument by counsel, I am  of the view that  an order compelling the  respondents to furnish security for costs would have the effect of precluding the respondents from proceeding with the main application against the applicant. Taking into account the facts  in the main  application,  I am of the view that the respondents' main application  is  not vexatious and that equity, fairness and the interest of justice require that the respondents be allowed to exercise their  right  to  access court.

[8]	In the premises, the following order is   made:

1.	The application is dismissed.

2.	Costs to be costs in the cause.

  N. P. MNGQIBISA-THUSI 
Judge of the High  Court

Appearances:
Zehir Omar Attorneys for Applicant and Saleem Ibrahim Attorneys for Respondents