Bridge Taxi Finance No.2 PTY Ltd V Sekoala Rajane & 4 Others (CIV/APN/392/2022) [2023] LSHC 202 (25 August 2023)

# Bridge Taxi Finance No.2 PTY Ltd V Sekoala Rajane & 4 Others (CIV/APN/392/2022) [2023] LSHC 202 (25 August 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/202/eng@2023-08-25) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/202/eng@2023-08-25) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/202/eng@2023-08-25) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/202/eng@2023-08-25) [ __](mailto:?subject=Take a look at this document from LesLII: Bridge Taxi Finance No.2 PTY Ltd V …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/202/eng@2023-08-25) [ Download PDF (196.6 KB) ](/akn/ls/judgment/lshc/2023/202/eng@2023-08-25/source) Report a problem __ * Share * [ Download PDF (196.6 KB) ](/akn/ls/judgment/lshc/2023/202/eng@2023-08-25/source) * * * * * Report a problem __ ##### Bridge Taxi Finance No.2 PTY Ltd V Sekoala Rajane & 4 Others (CIV/APN/392/2022) [2023] LSHC 202 (25 August 2023) Copy citation * __Document detail * __Related documents Citation Bridge Taxi Finance No.2 PTY Ltd V Sekoala Rajane & 4 Others (CIV/APN/392/2022) [2023] LSHC 202 (25 August 2023) Copy Media Neutral Citation [2023] LSHC 202 Copy Hearing date 25 April 2023 Court [High Court](/judgments/LSHC/) Case number CIV/APN/392/2022 Judges [Banyane J](/judgments/all/?judges=Banyane%20J) Judgment date 25 August 2023 Language English Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **HELD AT MASERU CIV/APN/392/2022** In the matter between **BRIDGE TAXI FINANCE NO.2 (PTY) LTD APPLICANT** AND **SEKOALA RAJANE 1 ST RESPONDENT** **** **OC VTD/CRCU 2 ND RESPONDENT** **COMMISSIONER OF POLICE 3 RD RESPONDENT** **THE ATTORNEY GENERAL 4 TH RESPONDENT** **THE DEPUTY SHERIFF 5 TH RESPONDENT** **** _Neutral Citation_ : Bridge Taxi Finance No.2 (PTY) LTD v Sekoala Rajane and Others [[2022] LSHC 202](/akn/ls/judgment/lshc/2022/202) Civ (25th August 2023) **_JUDGMENT_** **CORAM : BANYANE J** **HEARD : 25 APRIL 2023** **DELIVERED : 25 AUGUST 2023** **_ANNOTATIONS_** **_Cited Cases_** **_South Africa_** 1. Shidiack V Union Government (Minister of interior) 1912 AD 642 2. Ben Susan v Shering and Mockfor No 1930 WLD 301 3. Wellworths Bazaars LtD v Chandlers Ltd and others 1947 (4) SA 453 (T) 4. Mahomed vBezuidenhoit and others 1948 (4) SA 372 (T). 5. Trakman No V Livshitz and others 1995 (1) SA 282 6. Legal and General Assurance Society Ltd V Liebirum A.D and another 1968 (1) SA 473 7. Wood v Assistant Registrar, General Division, Rhodesia and another 1971 (3) SA 561 8. Browns the Diamond Store CC v Van 2y1 [2017] ZAGPJ HC 70 **_United Kingdom_** 1. Porzelack KG v Porzelack(UK) LTd[1978] 1 ALL ER 1074 **_Subsidiary legislation_** 1. High Court Rules 1980 **Summary** Administrative Law-review of the Assistant Registrar’s approval of a bond as a form of security for costs without hearing the party seeking security-whether bond sufficiently safeguards the rights of the _incola_ respondent. **Introduction** **[1]** This is an application to review a decision of the Assistant Registrar of the High Court dated 19 January 2023 in terms of which he approved a security bond presented by an attorney of a _peregrine_ applicant as a form of security for costs in the absence of the _incola_ respondent. The primary issue for determination is whether he should have heard representations from both parties before endorsing the bond. **Background** **[2]** Facts that precipitated this application are straightforward and may be summed up as follows. Bridge Taxi Finance, a company duly incorporated in terms of the Laws of the Republic of South Africa whose address is 132 Jan Smits Avenue, Rosebank, Gauteng Province, brought an application against Mr. Sekoala Rajane as 1st respondent. This company is seeking release of two motor vehicles currently in possession of the Lesotho police, their removal to South Africa, as well as an order declaring it as owner of these vehicles. To avoid confusion, I will refer to parties as they are in the main application. **[3]** It is common cause that the applicant is the _peregrine_ of this Court and has no assets in this jurisdiction. Its application for release of the vehicles was filed on 21 December 2022. The 1st respondent herein filed his notice of intention to oppose on the same day. Legal representatives of both parties appeared before Moahloli J on the same day. The matter was postponed to 23 December 2022 for argument on urgency and interim reliefs. On this day, the matter was struck from the roll of urgent matters. A day before the parties’ appearance before Moahloli J, (22 December 2022), the 1st respondent requested the applicant to furnish security for costs in the amount M50 000.00 on grounds that it is a _peregrine_ of this Court. It was received by the applicant’s attorneys on the same day. **[4]** On the 23rd of December 2022 the applicant served the 1st respondent with a bond in terms of which the applicant’s attorneys’ firm, Adams Attorneys, bound itself as surety for due payment of any costs of suit for which the applicant may be held liable by an order of court, to a maximum of M50 000.00. **[5]** On the 11th of January 2023, the applicant’s attorney wrote to the 1st respondent’s legal representative. To the letter, he attached a print out of an electronic funds transfer (EFT) for an amount of M50 000, 00 to Adams Attorneys on the 11th of January 2023. The letter reads as follows: “We note that during our exchange outside the Judge’s chambers, you had required proof of payment of security for costs be made available. We accordingly attach the proof of payment for your attention”. **[6]** On the 19th of January 2023, a security bond in terms of which the Director of Adams Attorneys firm binds himself as surety was apparently endorsed by the Assistant Registrar. This is evidenced by the Registrar’ date stamp. The endorsement is the subject matter of the present application. **[7]** The endorsement was based on a letter addressed to the Assistant Registrar by the applicant’s attorney dated 19 January 2023. This letter notifies the Assistant Registrar that the applicant was on the 22nd of December 2022 served with a notice to file security and that on the 23rd of December 2022, the applicant’s attorneys’ firm filed a security bond binding the firm for payment of costs in the amount requested. The letter goes further to show that they were requested outside the Judge’s chambers to provide proof of payment, and that they complied by requesting client to furnish proof of payment of the funds into the firm’s trust account, which proof, was transmitted to the 1st respondent’s advocate on the 11th of January 2023. The letter concludes: “We found it prudent that we prepare a security bond in a form and manner that you may approve. The Rules of the High Court, in particular Rule 48 makes mention that security must be provided to the satisfaction of the Registrar of the High Court. We attach the security bond for your attention. We accordingly humbly request that you find satisfaction in the form of security we have provided and endorse our security bond in order.” **[8]** On the 24th of January of 2023, the 1st respondent, without seeking review of the Registrar’s decision lodged an application in terms of **Rule 48(3)** of the High Court Rules, seeking an order directing the applicant to furnish security for costs in the amount of M50 000.00. On 03 March 2023, I dismissed the application on grounds that Rule 48(3) confers discretion on the Registrar in matters concerning furnishment of security for costs. I held further that his approval amounts to a decision on the issue of form of security and that the decision being in the nature of an administrative act, is susceptible to review provided necessary grounds for review are shown to exist. I further held that a substantive application for review may be filed in which the Registrar will be cited as a party. **Relevant legal principles** **[9]** Applications to furnish security for costs are governed by Rule 48 of the High Court Rules 1980. For this application, it is unnecessary to consider all the provisions of the rule. Relevant for our purpose is Rule 48(5). It reads as follows: “(5) Any security for costs shall, unless the court otherwise directs, be given to the satisfaction of the Registrar.” **[10]** My understanding of the language used in the rule is that the Registrar’s discretion is circumscribed. In other words, the subrule does not confer free discretion on the Registrar. The use of the phrase ‘unless the Court otherwise directs’ tends to indicate a limitation to the Registrar’s powers and renders his decision on matters of security susceptible to review or correction by the Court. Differently put, the rule gives power and jurisdiction to the Court to review decisions of the Registrar. **[11]** Based on this understanding, it is appropriate to now discuss the grounds upon which the Court may interfere with the Registrar’s determination or decision. **[12]** There is a dearth of authority in our jurisdiction on the subject. I however, derived some assistance from South African Authorities. Although these authorities deal with review of taxation of the bill of costs and not acceptable forms of security, I find the guiding principles enunciated therein, helpful. I discuss these decisions immediately below. **[13]** In **Shidiack V Union Government (Minister of interior) 1912 AD 642** at 651-652, the Court said; “Now it is settled law that where a matter is left to the discretion or the determination of a public officer, and where his discretion has been _bona fide_ exercised or his judgment bona fide expressed, the Court will not interfere with the result. Not being a judicial functionary, no appeal or review in the ordinary sense would lie; and if he has duly and honestly applied himself to the question which has been left to his discretion, it is impossible for a Court of Law either to make him change his mind or to substitute its conclusion for his own. There are circumstances in which interference would be possible and right. If for instance, such as an officer had acted _mala fide_ or from ulterior and improper motives, if he had not applied his mind to the matter or exercised his discretion at all, or if he had disregarded the express provisions of a statute – in such case the court might grant relief. But it would be unable to interfere with due and honest exercise of discretion, even if it considered the decision inequitable or wrong.” **[14]** In**Ben Susan v Shering and Mockfor No** 1930 WLD 301**,**_Barry J_ exhaustively considered relevant authorities and concluded that the grounds for interference by the Courts were not limited to those laid down in **Shidiack’s** case but that the Court also has the right to reverse the registrar’s decision if it is satisfied that it is wrong. See also **Wellworths Bazaars LtD v ChandlersLtd and others** 1947 (4) SA 453 (T), and **Mahomed v Bezuidenhoit and others** 1948 (4) SA 372 (T). **[15]** In **Trakman No V Livshitz and others** 1995 (1) SA 282 at 289, _Smalberger_ JA said: “notwithstanding the fact that the determination of the quantum of the security for costs by the Assistant Registrar is final in terms of Rule 37(2), this Court has jurisdiction to review his determination on the grounds set out in **_Shidiack V Union Government_ Shidiack v Union Government (Minister of interior) **1912 AD 642 at 651-2 and as supplemented in **Legal and General Assurance Society Ltd V Liebirum A.D and another** 1968 (1) SA 473(A.D) at 478.” **[16]** The Court in **Legal and General Ass Society v Liebirum (supra)** concluded as follows at p 478 A-C: “It is clear from all these decisions that the taxing master’s ruling is not limited to the grounds in Shidiack’s case, but that in certain cases the Court may also reverse his ruling if it is clearly of the view that he is wrong. The repealed rules as well as the present Rules do not, in my view, confer free discretion on the taxing Master, but one which is subject to correction by the Court. I do not consider that there is any difference in approach whether the Rules provide for revision, review or “a decision on a stated case.” **[17]** In **Wood v Assistant Registrar, General Division, Rhodesia and another** 1971 (3) SA 561**** the Court also confirmed that even where no rule of court confers power on the court to review the decision of the taxing Master, it is the duty of the court to determine whether he (taxing master) has performed the task allotted to him in a proper manner or whether he was right or wrong. **[18]** It is implicit in these authorities that the Court has power to correct the Registrar’s decision not only on the grounds mentioned in **Shidiack v Union Government** but also where the Court is clearly satisfied that he is wrong. **Discussion** **[19]** With these principles in mind, I revert to the facts of the present matter to determine whether the Assistant Registrar’s decision of 19th of January 2023 is liable to be set aside. **[20]** It is common cause between the parties that the applicant in the main is a _peregrine_ of this Court. The 1st respondent demanded security for his costs on 22 December 2022. Having been requested to furnish security for the 1st respondent’s costs, the applicant did not contest its liability to furnish security for costs. On 11th of January 2023, a deposit of M50 000.00 was made into the applicant’s Attorneys’ trust account. After this, the bond was prepared and submitted to the Assistant Registrar on 19 January 2023. The Assistant Registrar approved the form of security provided. The 1st respondent was notified of the approval on the same day. This case concerns sufficiency of the bond filed and approved by the Assistant Registrar without the 1st respondent’s participation. **[21]** The 1st respondent (as applicant) in this review application contends primarily that the impugned approval of the bond was procedurally improper because firstly, the approval was sought and obtained in his absence as the party requesting security. Secondly, the applicant’s attorney concealed from the Assistant Registrar that the manner and form of security were contested by the requesting party. It is on these grounds that he asserts that the issue must be reopened for him to ventilate his reservation about the manner and form of security provided. **[22]** The applicant opposes the application. No answering affidavit was filed by the Assistant Registrar whose decision is under review, instead he responded to the application by stating a case for decision in terms of Rule 49 of the High Court Rules 1980. He states that on 19 January 2022, he received correspondence from the applicant’s attorneys notifying him that the 1st respondent had demanded security for costs in the amount of M50 000.00. In terms of this letter, he was requested to fix this amount as security and to accept the surety bond as the form of security. The statement also reveals that the applicant’s attorney presented the bank confirmation together with a trust account print out. Based on these documents, he was satisfied that the 1st respondent’s interests are sufficiently safeguarded. He accordingly accepted and endorsed the bond. **[23]** There is no suggestion of _malafides_ on the part of the Assistant Registrar. The question is whether it was necessary to afford the 1st respondent an opportunity to be heard before deciding that his interests were sufficiently safeguarded. To answer this, it is perhaps necessary to highlight the purpose of an order of security for costs against a _peregrine_ applicant. **[24]** In **Porzelack KG v Porzelack(UK) LTD**[1978] 1 ALL ER 1074 at 1076 and 1077, _Sir Nicolas Browne-Wilkinson VC_ detailed the purpose for security of costs as follows: “The purpose of ordering security for costs against a plaintiff ordinarily resident outside the jurisdiction is to ensure that a successful defendant will have a fund available within the jurisdiction of this court against which it can enforce the judgment for costs. It is not, in the ordinary case, in any sense, designed to provide the defendant with security for costs against a plaintiff who lacks funds. The risk of defending a case brought by a _perigrinous_ plaintiff is as applicable to plaintiffs coming from outside the jurisdiction as it is to plaintiff resident within the jurisdiction….” **[25]** In **Browns the Diamond Store** **CC v Van Zy1** (717/2015) [[2017] ZAGPJHC 70](/akn/za-gp/judgment/zagpjhc/2017/70) (3 February 2017), the Court said: “[23] So although in this age of globalization suing a _peregrine_ in his own jurisdiction to recover costs may be less arduous, the extra burden of costs and delay in enforcing a judgment abroad is an obvious reality that cannot be ignored. It therefore, comes as no surprise that as recently as in 2015, the Supreme Court of Appeal in **Exploitatie – en BeleggingsMaatshappijArganouten** 11 BV, could still recognize this to be the primary reason why a peregrine plaintiff should provide security. In fact, due to the sliding rand, litigation in the United Kingdom, has been even more prohibitive. That said, even if Browns were to bring proceedings in the United Kingdom to recover its costs, the respondent’s reticence to make full disclosure of his assets and liabilities in the United Kingdom will preclude, hinder or add to the burden of enforcement against any such assets that do exist abroad. This in my view, is a further factor that weighs in favour of granting an order for security for Brown’s costs in the main action.” **[26]** It seems to me that when Mr. Adams presented the bond to the Assistant Registrar for endorsement, he did not disclose that a disagreement on the form of security to be provided arose during the dialogue between the parties. **[27]** Judged in the light of the events preceding the 19th of January 2023 when the endorsement of the bond was sought, the applicant’s attorney was not entitled to approach the Registrar for endorsement without notifying the 1st respondent’s Legal representative. I am therefore of the considered opinion that Mr. Adams ought to have notified the requesting party that he intended to approach the registrar for approval of the bond. **[28]** Furthermore Mr. Adams had the duty to disclose to the Registrar that a disagreement arose between them. In other words, the disagreement should have been brought to the attention of the registrar to enable him/her to make an informed order on the form of security for costs. **[29]** I turn now to consider whether the decision itself is supportable. When considering the sufficiency of the bond, and the question whether the 1st respondent’s rights are secured, the Assistant Registrar seems to have been oblivious to the fact that Mr. Adams as the Director, and not Adams Attorneys, stood as surety for payment of costs. He ought therefore, not to have relied on the funds available in the Attorney’s firm but the Director as a person. He ought to have also established whether the surety (Mr. Adams) has a fixed residence in Lesotho or possesses property in Lesotho to satisfy an adverse costs order against his client or if the surety and his assets are outside Lesotho. This is because if the surety has no assets in this country, it might be difficult for the 1st respondent to enforce the costs order in his favour. It is Mr. Adams’ funds (and not the firm) that ought to have been enquired into to ensure that he has available funds to cover an adverse costs award against his client. **Conclusion** **[30]** For these reasons, the 1st respondent counsel ought to have been invited and heard in compliance with the _Audi alteram partem_ rule of natural justice. This could have enabled him to ventilate and adduce his challenge on the proposed form of security. The Assistant Registrar ought to have considered representations made by respective parties to the contest before reaching his conclusion. He should also have considered matters specified in paragraph 29 of this judgment. Failure to do so renders his decision insupportable. **Order** [21] In the result following order is made: 1. The decision of the Assistant Registrar dated 19 January 2023 is reviewed and set aside. 2. The matter is remitted to him to determine the sufficiency of the proposed Form of Security. 3. The determination must be made within 14 days of this order. **_____________** **P. BANYANE** **JUDGE** For Applicant : Advocate Molapo LD For Respondent : Mr. Adams #### __Related documents ▲ To the top >