On 12 February 2014, the applicant obtained judgment in its favour in case number HC 3624/12 for the return of specified shares and share certificates. On 18 February 2014, the respondent filed a Notice of Appeal against that judgment with the Supreme Court. In terms of Rule 46(5) of the Supreme Court Rules 1964, security for costs was required to be furnished within one month of filing the notice of appeal, meaning by 18 March 2014. The applicant's legal practitioners wrote to the respondent on 27 February 2014 demanding security for costs in the sum of USD$55,000. The respondent's legal practitioners responded on 5 March 2014 indicating they were taking instructions. Despite further correspondence on 6 March and 26 March 2014 (demanding payment by 1 April 2014), the respondent failed to furnish security within the prescribed period. The respondent was no longer trading. Only by letter dated 2 May 2014 (more than two months after filing the appeal) did the respondent offer USD$5,000 as security. On 4 April 2014, the applicant filed an application for dismissal of the appeal for failure to furnish security for costs.
The appeal was dismissed. The respondent was ordered to pay costs on an attorney and client scale.
Where an appellant is required to furnish security for costs under Rule 46(5) of the Supreme Court Rules 1964, such security must be furnished within one month of the date of filing the notice of appeal, and this requirement is peremptory. Where an appellant fails to furnish such security within the prescribed period, and the respondent gives proper notice and applies for dismissal under Rule 36(1), the court may exercise its discretion under Rule 36(3) to dismiss the appeal, particularly where no opposing papers are filed, no reasonable explanation is provided for non-compliance, and no substantial opposition is made to the application.
The court noted that the respondent's submission that there was a dispute as to what constitutes a sufficient amount for security for costs was characterized as a "half-hearted submission made without any seriousness" given that the legal practitioner made no submission as to how or when such dispute allegedly arose, and this observation was made in the context of the legal practitioner's other concessions that security was required and that no meaningful submissions could be made in opposition. The court also observed that the matter could "properly be viewed as an unopposed application" given the circumstances.
This case reinforces the peremptory nature of the Supreme Court Rules regarding security for costs in appeals, particularly Rule 46(5) which requires security to be furnished within one month of filing a notice of appeal. It demonstrates the court's willingness to exercise its discretion under Rule 36(3) to dismiss appeals where there is non-compliance with the rules regarding security for costs, especially where the defaulting party fails to provide any reasonable explanation or opposition to the application for dismissal. The case emphasizes the importance of strict compliance with procedural rules governing appeals and the consequences of failing to adhere to prescribed time limits.