In the matter between:

and

JUDGMENT

(Application for Leave to Appeal)

DAVIS, J

This is an application for leave to appeal against the judgment of this Court of 16 March 2010, in which the Court ordered the applicants to furnish security for costs in terms of Rule 47. The applicants now seek to have this matter heard by a higher court in order for the order to be set aside

The principal judgment in this case, unfortunately, does not set out the facts as clearly as I would have wished, partly because of the way in which the matter was argued previously and the manner in which the issues were then raised, particularly by applicant.

In order to examine whether another Court, on these facts, would interfere with the discretion to grant security it might be helpful to briefly set out the critical factual matrix; An application for sequestration was launched at the end of April 2008. It appears that this is not the only application or action which have been brought by applicants against first respondent and associated legal entities.    According to the papers, it appears that a final set of papers in the main application was filed during July 2009 and the main application was set down for hearing on 2 November 2009

This particular point is buttressed by the following: In the affidavit of 29 October 2009. in support of the application for security of costs, Mr Honig, the first respondent, states that he has incurred legal expenses in relation to the three matters which had been brought against him in the amount of "no less than R1 218 687. He then tabulates the amounts which he has paid to various firms of attorneys.

The question therefore arises: on which facts would another Court come to the view that the exercise of the discretion by this Court fell outside the strict confines which will permit an appellate court to come to a view different to that adopted by this Court.

"subject to the qualification that it is only applicable after the Court in the exercise of its judicial discretion in accordance with the principles hereinafter stated, had come to the conclusion that the peregrines should not be absolved from furnishing security for costs."

From the facts given by the respondents as set out in this judgment, the question arises as to the basis upon which it can be said this Court exercised an improper discretion in finding in favour of respondent pursuant to Rule 47

The argument based upon the merits of the case, which I might add appear to be central to the initial submissions made by the applicants, in opposing the application for security, that is that ultimately this was vexatious litigation on the part of the respondents, has now fallen away. Therefore it is necessary for me to traverse only the remaining issues; in a sense applicants' argument has now morphed into an argument that security for costs should not be granted because the Court has not exercised its discretion in the manner which is indicated.

		
DAVIS, J