IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable:                              YES/NO
Of Interest to other Judges:   YES/NO
Circulate to Magistrates:        YES/NO	
								
							Case number: 	3588/2021
In the matter between: 

JOHANNES CAREL BUYS					1st Applicant

JOHANNA CHRISTINA BUYS					2nd Applicant

FREDRIK JACOBUS WEPENER					3rd Applicant

JOHANNES MARTHINUS OLIVIER				4th Applicant

WELGESIND FARM (PTY) LTD					5th Applicant
(Reg No: 2014/177083/07

And
VAUGHN VICTOR							1st Respondent

MARIETA MAGDALENA CATHARINA VICTOR		2nd Respondent

HEARD ON:	26 AUGUST 2021

JUDGMENT BY:		DANISO, J
			
DELIVERED ON:	This judgment was handed down electronically by circulation to the parties' representatives by way of email and by release to SAFLII. The date and time for hand-down is deemed to be 11H00 on 30 August 2021.

[1]	In this application the respondents seek an order that the applicants be ordered to furnish security for the respondents’ costs.

[2]	The application was triggered by the applicant’s urgent application (the main application) launched on 06 August 2021 in terms of which the applicants sought an order interdicting and restraining the respondents from evicting the applicants from the farm situated at Farm Aanvag 1, Wepener District in the Free State and from interfering with their farming activities on the said farm.

[3]	For the sake of convenience the parties are referred to as cited in the main application.

[4]	On 16 August 2021 the respondents served a notice in terms of Rule 47 (1) of the Uniform Rules of Court on the applicants. In terms of the said notice the applicants were granted 7 days from the date of service of the notice to provide security for the respondents’ costs in the sum of R450 000.00. 

[5]	On 20 August 2021, approximately 4 days later, the applicants were served with a notice in terms of Rule 47 (3) indicating the respondents’ intention to seek a court order compelling the applicants to provide the required security.

[6]	It is the respondents’ case that the first to fourth applicants are farm workers in the employ of the fifth applicant who also provides them with accommodation on the farm. The first to fourth applicants earn a meagre salary which is not even enough for them to procure alternative accommodation in the event that they are evicted from the farm. The fifth applicant is also not in a financial position to provide the applicants with financial assistance for alternative accommodation.

[7]	The respondents aver that it is clear that the applicants are impecunious litigants. They will not be able to meet an adverse cost order should they be unsuccessful in the main application. Therefore, they must be ordered to provide security for the respondents’ costs.

[8]	In response, the applicants filed a notice in terms of Rule 6 (5) (d) (iii). It is the applicants’ case that the application warrants a dismissal solely on a question of law in that no proper case has been made out for the relief sought in the respondents’ founding affidavit. 

[9]	The applicants submit that the applicants’ indigence does not in itself justify an order that they should provide security for costs. A poor litigant is also entitled to approach courts when their constitutional rights are threatened. In terms of Section 9 (1) of the Constitution of the Republic of South Africa Act No, 108 of 1996 (The Constitution) everyone is equal before the law and has the right to equal protection and benefit of the law. The applicants are indeed poor, however, the circumstances under which they approached the court must also be taken into account when the court considers an application of this nature namely: the court must be satisfied that the main application is vexatious or reckless or amounts to an abuse of court process. In this matter the applicants launched the main application in order avert illegal eviction from their residence by the respondents. On 04 August 2021 the respondents through their attorney and without a court order wrote a letter to the applicants ordering them to vacate the farm by the 04th of August 2021 failing which, members of the South African Police Service would be requested to assist in removing the applicants from the farm. Section 26(3) of the Constitution prohibits evictions without an order of court. 

[10]	Mr Kloek, counsel for the applicants argued that the applicants were entitled to seek the court’s assistance to protect their constitutional rights against the impending illegal eviction. It can therefore not be said that main application was vexatious or reckless or constitutes an abuse of court process. That is not even the respondents’ case. The respondents have failed to make out a case warranting the order that they seek. 

[11]	The applicants further take a point that the respondents’ application is defective in that the notice was short served. The application was served on 16 August 2021. It provided the applicants with only 7 days from the date of service of the notice to comply or contest the liability to provide security instead of 10 days as provided for in Rule 47 (3). The 10-day period only expires on 30 August 2021, however, despite being alerted to the shortcomings in the notice the respondents proceeded with the application on 26 August 2021 without even seeking condonation for the short notice. The application stands to be dismissed with costs on a punitive scale.

[12]	 I’m in agreement with the applicants’ contentions. The onus is on the respondents to satisfy the court that security for costs should be ordered. The inability to satisfy a potential costs order on its own is insufficient to warrant an order that the applicants furnish security for the respondents’ costs. See Boost Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd 2015 (5) SA 38 SCA paragraph 14 at 49E to 49F.

[13]	Bizarrely, Mr van Rensburg, counsel for the respondents countered Mr Kloek’s argument by contenting that despite the fact that in their founding affidavits the respondents only made reference to the applicants’ lack of means to satisfy a cost order the other factors can be raised from the bar. 

[14]	I disagree. A party must make out the case for the order it seeks in the founding affidavit. In my view, arguments presented by counsel are merely comments for or against the order sought. Arguments cannot be elevated to the status of evidence in support of the order sought.

[15]	I’m also persuaded that there is merit to the applicants’ objection to the validity of the respondent’s notice of application. According to Rule 47 (3) an application to compel a party to furnish security for costs can only be made after 10 days has lapsed from the date it was demanded.  

[16]	The respondents concede the inadequate time periods. They however aver that they are entitled to truncate the time periods as the applicants had also truncated the time limits when launching their main application on urgent basis. 

[17]	The respondents’ contentions are preposterous. The main application is premised on the provisions of Rule 6(12) (a) and (b) in terms of which the applicants sought the leave of the court to dispense with the normal time periods. Except to acknowledge the short service of the notice, no condonation has been sought by the respondents. I find that the application offends Rule 47 (3). 

[18]	In the light of the above reasons, I’m inclined to find in favour of the applicants. A punitive cost order is warranted under these circumstances and in the result, the following order is made: 

(a)	The respondents’ application to compel the applicants (in the main action) to furnish security for the respondents’ costs is dismissed.

(b)	The respondents to pay the applicants’ costs jointly and severally one paying the other to be absolved on the scale of attorney and client.

Dated at BLOEMFONTEIN on this the 30th day of AUGUST 2021.

___________________
NS DANISO, J 

APPEARANCES: 	
Counsel on behalf of Applicants: 			Adv. Kloek 
Instructed by:					JOOSTE PIETERS INC.
C/O MDP ATTORNEYS
							 BLOEMFONTEIN

Counsel on behalf of Respondents: 	Adv. Janse van Rensburg
 Instructed by:					WILLERS ATTORNEYS
BLOEMFONTEIN