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Practitioners appearing in full court appeals have long worked on the assumption that Rule 49(13) of the Uniform Rules applies whenever an appeal is directed to the full court of a division of the High Court - regardless of who granted leave. That assumption has now been tested and found wanting. In Koopman v Minister of Police (963/2022) [2026] ZASCA 45 (7 April 2026), the Supreme Court of Appeal held that Rule 49(13) of the Uniform Rules does not apply where it is the SCA, rather than a High Court judge, that grants leave to appeal to the full court. The decision resolves a conflict in the authorities and carries significant consequences for both appellants and respondents. This article distils its reasoning into a series of practical considerations for practitioners on both sides of the record.
The Facts in Brief
Ms Iris Koopman, an unemployed and indigent woman living with her minor child in an informal settlement in Kuruman, Northern Cape, was arrested without a warrant on a charge of common assault against her then-boyfriend and detained for two days at the Kathu police station with her seven-month-old breastfeeding infant. She brought an action for damages against the Minister of Police for unlawful arrest and detention. The High Court dismissed the action, and the presiding judge refused leave to appeal. Ms Koopman petitioned the SCA under section 17(2)(b) of the Superior Courts Act 10 of 2013, and the SCA granted her leave to appeal - but directed the appeal to the full court of the Gauteng Division rather than hearing it itself.
Neither party raised the question of security for costs until shortly before the full court hearing date, more than two years later. When Ms Koopman’s attorney asked the Minister to waive the requirement, the Minister declined. Ms Koopman then applied to the full court for release from the obligation, but the full court removed the appeal from the roll, taking the view that the question fell within the competence of the SCA. The matter accordingly came before the SCA on three questions: whether condonation should be granted for Ms Koopman’s failure to seek release from the security obligation when she petitioned the Court in October 2022, whether Rule 49(13) of the Uniform Rules applied at all, and if so, whether Ms Koopman should be released from the security obligation.
- Does Rule 49(13) of the Uniform Rules Apply to Your Appeal?
The starting point is to understand what triggers the security obligation. Rule 49(13)(a) of the Uniform Rules requires any party granted leave to appeal to the full court to furnish security for the respondent’s costs of appeal before a hearing date may be obtained. The obligation is peremptory and can be displaced only by the respondent’s written waiver or by an order of court. But the critical question the SCA confronted in Koopman is whether that obligation arises in every full court appeal, or only in those where leave was granted by a judge of the High Court.
The Court held that it arises only in the latter case. The reasoning turns on the procedural architecture of the rules. Where a High Court judge hears and dismisses a matter at first instance, and that same judge or another judge of the division grants leave to appeal to the full court, Rule 49(13) of the Uniform Rules is activated within the High Court’s own procedural domain. But where the High Court judge refuses leave and the aggrieved party petitions the SCA under section 17(2)(b), the grant of leave emanates from the SCA - a court that is governed by its own rules and falls outside the definition of "court" in the Uniform Rules. The security obligation under Rule 49(13) of the Uniform Rules is tied to the source of the order granting leave, not to the destination of the appeal.
The practical implication is straightforward. If your client has been granted leave to appeal to the full court by the SCA, Rule 49(13) of the Uniform Rules does not oblige them to furnish security. If you act for the respondent in such an appeal, you cannot rely on Rule 49(13) of the Uniform Rules to demand it.
- What Does the Definition of "Court" Actually Mean?
Much of the SCA’s reasoning rests on a point that is often overlooked in practice. Rule 1 of the Uniform Rules defines "court" as the High Court of South Africa referred to in section 6 of the Superior Courts Act. The SCA is established as a separate and distinct institution under section 7 of the Superior Courts Act, with its own procedural rules. It does not fall within the definition of "court" as that term is used in the Uniform Rules.
The consequence is that an order by the SCA directing an appeal to the full court does not constitute an order of the "court" as contemplated by Rule 49(13) of the Uniform Rules, and the peremptory consequences that flow from such an order - including the automatic security obligation - are not triggered. Practitioners should pay close attention to this definitional boundary. The Uniform Rules and the SCA Rules are two distinct regulatory regimes, and importing obligations from one into the other without textual warrant is impermissible.
- What Does Rule 9 of the SCA Rules Provide?
Rule 9 of the SCA Rules governs security for costs where an appeal is heard by the SCA itself. Importantly, it does not impose any automatic obligation. It authorises the SCA, when granting leave to appeal, to order that security be furnished - but only upon the respondent’s request. Unless the respondent makes such a request and the Court makes such an order, no obligation arises.
In Koopman, the Minister made no request for security when Ms Koopman petitioned the SCA, and no order for security was made when leave was granted on 12 December 2022. The SCA held that to apply Rule 49(13) of the Uniform Rules in those circumstances would impose a peremptory obligation where the SCA Rules impose only a conditional one - without any textual basis for doing so.
The implication for respondents is this: if you wish to secure costs in an appeal where the SCA grants leave to the full court, you should request a security order at the petition stage under Rule 9 of the SCA Rules. If you fail to do so, you may find yourself without a mechanism to compel the appellant to furnish security after the event.
- Can You Rely on Strouthos?
Practitioners who have previously relied on the decision in Strouthos v Shear to argue that Rule 49(13) of the Uniform Rules applies regardless of who granted leave should take note. In Strouthos, the court held - without detailed textual analysis - that leave granted by the Chief Justice did not relieve the petitioner of the obligation under Rule 49(13) of the Uniform Rules. The SCA in Koopman held that Strouthos assumed, without establishing, that the security obligation had arisen in the first place - an assumption the Court held cannot be sustained on the text and structure of the applicable rules. The decision in LG v JG, which followed Strouthos, was similarly criticised for not engaging with the textual and structural considerations.
The SCA endorsed instead the reasoning of the full court of the Gauteng Division in Dr Maureen Allem Incorporated v Baard, which held that Rule 9(1) of the SCA Rules contemplates that any security precondition must derive from an order of the SCA, and that Rule 49(13) of the Uniform Rules did not apply because leave had been granted by the SCA and not by a High Court. The Limpopo Division reached the same conclusion in Maake and Others v Chemfit Finechemical (Pty) Ltd. Strouthos should no longer be treated as authoritative on this point.
- What Happens If Security Is Required But Your Client Cannot Afford It?
Even on the assumption that Rule 49(13) of the Uniform Rules applied, the SCA held that Ms Koopman would have been entitled to release from the obligation on the alternative ground of indigency and the constitutional right of access to courts. She was unemployed, owned no immovable property, had no assets of material value, and lived in a shack with a dependent child. Enforcing the security obligation would have permanently foreclosed the appeal, which the Court characterised as an unjustifiable limitation of the right of access to courts under section 34 of the Constitution.
The Court also noted that Ms Koopman’s grounds of appeal were substantive, involving genuine and unresolved questions of law concerning the interaction of section 40(1)(q) of the Criminal Procedure Act with section 3 of the Domestic Violence Act in circumstances where the arrest was effected two days after the alleged incident, at a residence the complainant had already vacated, in the complainant’s absence, with an infant present. The merits of the appeal were therefore a relevant consideration in the exercise of the discretion.
For practitioners representing indigent appellants, the key consideration is that the court will weigh the appellant’s financial circumstances, the substantive merits of the appeal, and the prejudice - or lack thereof - to the respondent. An appellant who can demonstrate both indigency and a genuinely arguable case will have strong grounds for release.
- Does It Matter When Security Is Raised?
Timing featured prominently in Koopman. The Minister failed at any stage to raise the security issue under Rules 30 or 30A of the Uniform Rules, despite having had more than two years of appellate proceedings in which to do so. The Court observed that the Minister had not alleged or demonstrated any prejudice attributable to the timing of the application for release. On the other side of the record, Ms Koopman’s delay in seeking release was explained by her attorney’s reasonable understanding that no security obligation arose under the SCA Rules and by the expectation that the SCA would hear the appeal itself.
For respondents, the point is that a failure to raise the security question timeously may be held against you. If you intend to insist on security, do so early - ideally at the petition stage by requesting an order under Rule 9 of the SCA Rules, or at the latest when the appeal is set down. Lying in wait until the eve of the hearing, as the Minister did, will attract judicial scepticism. For appellants, the position is that a delay in seeking release is not necessarily fatal, provided the delay is satisfactorily explained and the respondent cannot point to prejudice.
- Where Should You Bring the Application?
A subsidiary but important question in Koopman was whether the SCA had jurisdiction to entertain a standalone originating application concerning security for costs in a full court appeal. The Court acknowledged that its jurisdiction is conferred by the Constitution, the Superior Courts Act, and the SCA Rules - none of which expressly confers jurisdiction over such an application. It nevertheless accepted jurisdiction, having regard to the fact that it was the Court that granted leave, that Rule 9 of the SCA Rules forms part of its own procedural framework, and that the full court had itself expressed the view that the question was one for the SCA to determine.
Practitioners should be alert to this jurisdictional question. If the SCA has granted leave to appeal to the full court and a dispute arises about security, the more prudent course is to approach the SCA rather than the full court - particularly in light of the full court’s stance in Koopman that the matter fell outside its competence.
Conclusion
The seven considerations set out above - the limited reach of Rule 49(13) of the Uniform Rules, the definitional boundary of "court" in the Uniform Rules, the conditional mechanism in Rule 9 of the SCA Rules, the demise of Strouthos, the constitutional protection of indigent appellants, the importance of timing, and the jurisdictional question - form a practical framework that practitioners on both sides of a full court appeal should apply whenever security for costs is in issue. For appellants who have obtained leave from the SCA, the decision in Koopman removes a significant procedural obstacle. For respondents, it is a reminder that the right to security is not self-executing and that early, properly directed action is essential if the protection is to be preserved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
