IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/578/2010
In the matter between:
ECONET TELECOM LESOTHO (PTY) LTD APPLICANT
BREAKTHOUGH ENTERPRISES (PTY) LTD RESPONDENT
Application for security for costs – Rule 48 High Court Rules – such to be ordered unless special circumstances exist – no such circumstances shown – court not to fetter discretion to order party to provide security for costs – court to decide each case on consideration of relevant features – application succeeds
Delivered by the Honourable Madam Justice L. Chaka-Makhooane on the 3rd December, 2010
 The matter came to me by way of an urgent application on the 19th October 2010. Mr Mpaka for the Applicant had duly served the Respondent even though they did not make an appearance. The matter was opposed by the Respondent.
 The Applicant went ahead and moved the court for an interim order and a rule nisi, which was granted and was to be returnable on the 3rd December, 2010.
 Having been given put to terms for the filing of opposing papers and replying papers the matter was then postponed to 3rd December, 2010. However, on the 26th October, 2010 both parties appeared before court following the filing of a Notice of Anticipation in terms of Rule 8 (18) of the High Court Rules, by the Respondent. As it turns out, the court entertained the application for anticipation and only realized after being made aware by Mr Mpaka that, Rule 8 (18) had been flouted.
 I do therefore, rescind the earlier order given for the anticipation in terms of Rule 45 (1). The Respondent had been given notice and they had chosen not to make an appearance. They are therefore, not entitled to anticipate.
 The Applicant also seeks security for costs in terms of Rule 48 as shown in his Notice to file security. The Respondent opposes the application contesting its liability to give security. Ms Makhera for Respondent argues that the grounds given by the applicant are lacking in substance, (See para 7 of the Respondent’s Heads of Argument). She prays that the application be dismissed with costs since it has been brought prematurely.
 I am persuaded to grant the Applicant the order for security for costs. Jajbhay J in Sentraal – Suid Kooperasie Bpk v Bessemer Steel Construction SA(3) 2004 552 found that:
“A Court should not in any manner fetter its discretion to order a party to provide security for costs, and particularly not by adopting an approach which brooks of no departure. It must decide each case upon consideration of all the relevant features, without adopting a predisposition either in favour of or against granting security.”
 The authorities reviewed show that the court will lean towards security unless special circumstances exist. In casu I must say no special circumstances have been shown. It is advised that the court should not enquire fully into the merits of the contemplated litigation and form an opinion of the Plaintiffs success, but the nature of the claim and the defence are not irrelevant. See Cometal – Mometal Sarl v Corliana Enterprises SA (4) 1981 (4) 662 at 663 (G).
 The Respondent has shown that the grounds upon which the Applicant seeks security are without substance. She shows inter alia that the Applicant has not made a demand for payment of such costs. As I perused the file I came across a taxed bill of costs. This to me says the Respondent is aware that, that bill has not been settled hence the demand by Applicant. Up to the time the application for security for costs came to court, it does not seem as if the Respondent had paid the taxed costs.
 I find that the Applicant is entitled to seek security for costs. I therefore, order security for costs in terms of Rule 48. The following order is made:
(a) The Respondent is ordered to furnish security for costs.
(b) The amount of security is to be fixed by the Registrar within fourteen (14) days of this order.
(c) The Costs of this application to be costs in the cause.
For Applicant : Mr Mpaka
For Respondent : Ms Makhera
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