SCA departs from Strouthos: no automatic security for costs when SCA grants leave to full court

The applicant's appeal to a full court of the Gauteng Division was directed by the SCA after it granted leave to appeal. The respondent contended that the applicant was obliged to furnish security for costs under Rule 49(13) of the Uniform Rules and that the appeal had lapsed for failure to do so. The applicant, who was indigent, sought a declaratory order that Rule 49(13) did not apply.

The court held: The SCA held that Rule 49(13) does not apply. The definition of 'court' in the Uniform Rules is confined to the high court and does not encompass the SCA. Rule 9 of the SCA Rules provides a separate, discretionary regime requiring a respondent's request and a court order before any security obligation arises; neither was present here. The court expressly departed from Strouthos v Shear, holding that decision had assumed the existence of a Rule 49(13) obligation without textual analysis, and endorsed the reasoning in Dr Maureen Allem Inc v Baard. As an alternative ground, the court held that enforcing the security requirement against an indigent litigant would unjustifiably limit the right of access to courts under s 34 of the Constitution.

Legal impact: Resolves a conflict in authority at SCA level. Practitioners can no longer rely on Strouthos to assert an automatic security-for-costs obligation under Rule 49(13) when the SCA grants leave to a full court. Respondents who want security must instead invoke Rule 9 of the SCA Rules by making a request at the petition stage. The constitutional access-to-justice reasoning also strengthens the position of indigent appellants more broadly.