Lazarus v Said NO and Another

• Jurisdiction: South Africa
• Citation: 1959 (1) SA 538 (E)

Lazarus v Said NO and Another
1959 (1) SA 538 (E)

1959 (1) SA p538

Citation	1959 (1) SA 538 (E)
Court	Eastern Cape Division
Judge	De Villiers JP
Heard	December 6, 1958
Judgment	December 11, 1958

Flynote : Sleutelwoorde

Appeal — To Appellate Division — Leave granted by Court a quo D — Security for costs — When granted.

Headnote : Kopnota

Where a respondent applied under section 103 (2) of the South Africa Act that the appellant, who had been granted leave by the Court a quo to appeal to the Appellate Division, should find security for costs of the appeal,

Held, that such security should be ordered unless there were special or E exceptional circumstances.

Case Information

Application for an order under sec. 103 (2) of the South Africa Act that an appellant should furnish security for costs of appeal. The facts appear from the reasons for judgment.

D. D v Kannemeyer, for the applicant.

N. Addleson, for the respondent. F

Cur adv vult.

Postea (December 11th).

Judgment

G De Villiers, J.P.:

Mr. Addleson for the respondent has applied for an order under sec. 103 (2) of the South Africa Act (1909) that the appellant should find security for the costs of appeal in the sum of £200, which he informs me is, in the absence of special circumstances, the usual amount, when security must be furnished under Rule 7 of the Appellate Division Rules.

H Mr. Kannemeyer in opposing the application has referred me to the case of Ecker v Dean, 1938 AD 102. And he contends that the same principle should apply in the instant case; because as leave to appeal has been granted the appeal cannot be said to be frivolous and vexatious.

In Ecker's case the Court held that the Supreme Court has a discretion in a fitting case to order a plaintiff to furnish security for a defendant's costs; and that this discretion should be exercised in the light of the

1959 (1) SA p539

De Villiers JP

circumstances of each case but that the basis of granting an order for security is that the action is reckless and vexatious.

In my view the principle laid down in Ecker's case has no application to the question of security for costs of appeal.

Ecker's case dealt with original actions. In appeals the respondent A already has the judgment of a competent Court in his favour. In appeals both from the magistrates' court and from the Supreme Court, where appeal lies as of right it is provided that...