Security for costs appeal against SAB

Marketing company Boost Sports Africa is hoping it will not have to cough up a fortune to have its appeal heard.

The question of whether a litigant can be ordered to give security for costs before it can pursue its case is heading to the Supreme Court of Appeal for a precedent-setting answer.

Last week, Pretoria High Court Acting Judge Soraya Hassim granted Boost Sports Africa leave to appeal against her order that it furnish security for costs in its patent battle against SA Breweries.

The East London marketing company is claiming that the brewer used its "Fans Challenge" concept without its consent when it launched its "Be the Coach" competition in 2011.

The competition allows supporters of Kaizer Chiefs and Orlando Pirates football clubs to be "temporary" coaches and select their team's line-up.

When the matter was due to be heard last year, SAB asked the court to order Boost Sports to pay security for costs.

Before the repeal of the Companies Act of 1973, courts could demand security for costs if there was reason to believe that a litigating company would not be able pay the costs of its opponent if it lost its case.

The new Companies Act of 2008 does not cover such payments by companies.

In ordering Boost to furnish security for SAB's legal costs in March, Judge Hassim said the common law rule - that a resident of South Africa cannot be called to furnish security - was not absolute.

"It recognised exceptions that were based on the court's inherent jurisdiction to prevent an abuse of its process," she said.