Furnishing security for costs by an incola company - at last some legal certainty or more confusion? Boost Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd (SCA)

Abstract

In the South African law of civil procedure, the practice of requesting a plaintiff to furnish security for costs was limited initially to a foreign peregrinus (non-resident) plaintiff who did not own any immovable property in South Africa. Over the years, the scope of this rule has been extended, and some of the provisions regarding a request for security for costs were enacted in legislation. One such provision was s 13 of the former Companies Act 61 of 1973, which stated that where an incola (local) company or body corporate sued as a plaintiff or applicant, a court could, in its discretion, order such a company or body corporate to furnish security for the defendant’s costs in certain circumstances. This section was not re-enacted in the Companies Act 71 of 2008. This omission resulted in several conflicting court decisions regarding the furnishing of security for costs by an incola plaintiff company.