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SCHINDLER LIFTS SOUTH AFRICA (PTY) LTD v GARDINI & SONS (PTY) LTD [1998] SZHC 5 (23 November 1998)

Filing of notice claiming security for costs does not stay proceedings
CIV. CASE NO. 2255/98

In the matter between

SCHINDLER LIFTS SOUTH AFRICA (PTY) LTD PLAINTIFF

And

GARDINI & SONS (PTY) LTD DEFENDANT

Coram S.B. MAPHALALA – J
For Plaintiff MR. SIMELANE
For Defendant MR. NXUMALO

_____________________________________________________________________

JUDGEMENT

(23/11/98)

Before court is an application for summary judgement by the plaintiff Schindler Lifts S.A. (Pty) Limited in which the plaintiff seeks an order that;

The matter came on the uncontested roll of the 13^th November 1998 where the defendant had filed a notice in terms of Rule 47 (1) filed with the Registrar of this court on the 12^th November 1998. Mr. Matsebula for the defendant in view of this application applied that the matter be postponed for a week in the interest of justice. However, Mr. Simelane for the plaintiff strenuously opposed a postponement of this matter contending that the filing of a notice in terms of Rule 47 (1) of the High Court Rules is not a bar to proceedings. To butress his point in this regard he cited judgement of the Chief Justice in the case of First National Bank of South Africa Ltd vs Paul Zondikhaya Shabangu (Civil Case No. 1956/98) dated the 9^th October 1998 where the learned Chief Justice opined that the filing of such an application does not stay proceedings. Mr. Simelane further argued that no defence at all has been placed and the plaintiff is entitled to summary judgement.

In reply on points of law Mr. Matsebula submitted that the case cited by the applicant is not binding to this court that only judgements of the Court of Appeal are binding to this court.

It is common cause that the plaintiff is peregrine of this court and the defendant an incola.

It appears to me that Mr. Simelane is correct that the defendant has not put out a defence to the merits to contradict what has been deposed by the plaintiff in its founding affidavit. I agree with the dictum in the case of First National Bank of South Africa Ltd vs Paul Zondikhaya Shabangu (supra) where the learned Chief Justice was seized with a similar question as in the present case where question arose as to whether in terms of Rule 47 (1) the proceedings are stayed merely by the demand for security and whether the court is debarred from granting any of the relief in the notice of motion while the question of security remains undecided. The learned Chief Justice in that case proceeded to examine the said rule and its effects and concluded at page 3... “On this reading of the rule there is no basis for the respondent to come to court today and say that the application in terms of the original notice of motion is incompetent or should not be acceded to and in view of the absence of any replying affidavit I intend to deal with the application in that basis”.

It is my view that in the absence of any defence to the merits by the defendant on the strength of the above cited dicta I ma unable to accede to the application in terms of Rule 47 (1) of the High Court Rules. I thus refuse the application for postponement and grant the plaintiff its relief in terms of the notice of application for summary judgment. The effect of which is as follows:

S.B. MAPHALALA

JUDGE