- The Supreme Court of Appeal has held that Rule 49(13) does not apply in cases where it is the court that grants leave to appeal.
- Under the SCA’s own rules, security for costs only becomes relevant once a respondent requests it and the court makes an order.
- Iris Koopman is not required to furnish security for costs, and her appeal is free to proceed.
The Supreme Court of Appeal has ruled that a litigant is not required to furnish security for costs when leave to appeal is granted by that court itself, unless the respondent requests it and the court makes an order to that effect.
The court held that Rule 49(13) of the Uniform Rules of Court does not apply in such circumstances and creates no automatic obligation on the appellant.
Court clarifies the scope of Rule 49
Judge KE Matojane held that the Uniform Rules regulate High Court proceedings only and do not extend to the Supreme Court of Appeal. He stated that “Rule 49(13) is definitionally confined to high court proceedings,” and confirmed that the term “court” as used in those rules does not include the Supreme Court of Appeal.
The applicable framework, he explained, is Rule 9 of the Supreme Court of Appeal’s own rules. That rule permits security for costs only where the respondent requests it, and the court makes an order to that effect. He stated that “Security is not automatic; it requires a respondent’s request and a court order.” In this matter, no such request was made at the petition stage, and no order was granted when leave to appeal was issued.
The court held that it is the source of the order granting leave to appeal that determines whether Rule 49(13) applies at all. Where a High Court grants leave, the rule is triggered. Where the Supreme Court of Appeal grants leave, it is not.
Koopman’s personal circumstances and arrest
Against that legal backdrop, the court turned to consider the personal circumstances of Iris Koopman. She is unemployed and unmarried, living with her minor child in a shack in an informal settlement in Kuruman, Northern Cape. The court recorded that she owns no immovable property and has no assets of any material value. These facts were set out in her founding affidavit and went undisputed, as the Minister of Police filed no answering affidavit.
Her claim arises from her arrest on 4 March 2015 at her home, without a warrant, on a charge of common assault involving her then boyfriend, Leon Coetzee. The alleged incident had taken place two days earlier. She was detained at the Kathu police station together with her seven-month-old infant, whom she was still breastfeeding, until the morning of 6 March 2015.
The court recorded that on 5 March 2015, Coetzee indicated that he wished to withdraw the charge. Despite this, Koopman was kept in detention until the following day.
Procedural history and delay
Koopman instituted a damages claim in the High Court in Pretoria for unlawful arrest and detention. The Minister relied on section 40(1)(q) read with section 40(2) of the Criminal Procedure Act, and Section 3 of the Domestic Violence Act. The trial, which was conducted virtually, was dismissed by Judge Rabie, who also refused leave to appeal on 29 September 2022.
Koopman petitioned the Supreme Court of Appeal, which on 12 December 2022 granted her leave to appeal to a full court. The appeal process was then delayed after the registrar failed to preserve the virtual trial recordings. Her attorney later obtained the recordings from the MS Teams platform, had them transcribed, and eventually secured a hearing date of 7 May 2025.
The issue of security for costs was only raised shortly before that hearing, when the Minister declined to waive the requirement. Koopman applied to the full court to be released from the obligation, but the court removed the appeal from the roll, stating that the issue needed to be determined by the Supreme Court of Appeal.
Condonation and outcome
The Supreme Court of Appeal granted condonation, noting that the Minister did not oppose the application and that no prejudice had been shown. Judge Matojane stated that “the explanation for the omission is satisfactory,” and confirmed that the factual averments in Koopman’s affidavit stood unchallenged.
The court declared that Rule 49(13) does not apply and that Koopman is not obliged to furnish security for costs. It further held that even if the rule were found to be applicable, she would still be released from the obligation. Judge Matojane stated that enforcing the security requirement in these circumstances would permanently foreclose the appeal.
The costs of the application were ordered to be costs in the appeal, to be determined together with the merits.
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