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[2010] ZAFSHC 67
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Cooper v Patrinos and Others, In re: Patrinos v Badenhorst and Others (1666/2010) [2010] ZAFSHC 67 (15 July 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1666/2010
In the case between:
CHAVONNES
BADENHORST ST CLAIR COOPER
Applicant
and
VASILIKI PATRINOS
1
st
Respondent
PANAGIOTIS PATRINOS
2
nd
Respondent
DR. PATRINOS
INCORPORATED
3
rd
Respondent
IN RE:
In the matter between:
VASILIKI PATRINOS
Applicant
and
CHAVONNES
BADENHORST ST
1
st
Respondent
CLAIR COOPER
PANAGIOTIS PATRINOS
2
nd
Respondent
DR. PATRINOS
INCORPORATED
3
rd
Respondent
_____________________________________________________
JUDGMENT:
RAMPAI, J
HEARD ON:
20 MAY 2010
_____________________________________________________
DELIVERED ON:
15 JULY 2010
_____________________________________________________
[1] These are motion
proceedings. The 1
st
respondent brought an application in terms of rule 47 against the
applicant in which he demands an amount of R100 000,00 as security
for the costs of the main application. The applicant in the main
application opposes the application.
[2] I shall refer to the
parties as in the main application where Advocate Patrinos is the
applicant, Attorney Cooper the 1
st
respondent, Dr Patrinos the 2
nd
respondent and his incorporated dental practice the 3
rd
respondent.
[3] The applicant and the
2
nd
respondent were previously married out community of property with the
inclusion of the accrual system. They lived together as
husband and
wife for a period of approximately two decades. Two children were
born of the marriage. Both of them are now independent
adults. The
bonds of marriage which subsisted between the applicant and the 2
nd
respondent were dissolved by a final degree of divorce in
Bloemfontein on the 18
th
November 2008. The divorce order (per Kruger J) incorporated a deed
of settlement.
[4] The 1
st
respondent was appointed as a receiver in terms of clause 4 of the
deed of settlement for the purposes of determining the accrual
values
in the respective estates of the couple. The powers and the
remuneration of the 1
st
respondent were spelled out in par 4.1 (sic) and 4.3. He was granted
three months within which to make the required accrual determination.
The couple agreed in terms of clause 4 of the deed of settlement
that the decision of the 1
st
respondent would be final and binding on them.
[5] By the 18 February
2010 the 1
st
respondent’s accrual determination was still outstanding. He
finalised such determination fifteen and a half months later,
on
March 20 2010, to be precise – annexure vp1 founding affidavit,
main application.
[6] The 1
st
respondent’s accrual determination triggered off the main
application. The applicant was dissatisfied with the determination
apparently because it was not to her liking. She initiated urgent
motion proceedings against the three respondents. As regards
the 1
st
respondent she seeks an order whereby the receiver’s accrual
determination is set aside; the receiver is deprived of his
remuneration relative to the services already rendered; the receiver
is removed from office as such and the receiver is directed
to pay
the costs of the main application jointly and severally together with
the 2
nd
respondent on the punitive scale.
[7] The relief sought
against the 1
st
respondent is fundamentally flawed in many respects. The 1
st
respondent was tasked to determine the accrual values of the
respective estates of the parties. He accomplished that mandate on
the 8
th
March 2010. Since he has already discharged his obligations, he no
longer holds the office as a receiver. Therefore he cannot
be
removed from the office because he no longer occupies such office.
[8] The 1
st
respondent’s determination is a final decision and it is
binding upon the applicant in terms of clause 4 of the deed of
settlement. The applicant does not wish to have the determination
reviewed or corrected. All she wants is to have it finally rescinded
and the 1
st
respondent barred from claiming from her the remuneration he has
earned in making the determination. In addition to all these
she
demands that the 1
st
respondent must be penalised or saddled with an adverse punitive
order of costs.
[9] The 1
st
respondent has no interest in the accrual dispute between the
applicant and the 2
nd
respondent. He was sued for no good reason and unwisely dragged into
this unnecessarily litigation. In the main application,
he was cited
in his personal capacity as if he was an interested party. By citing
him in this fashion, in addition to seeking
punitive costs, he was
thus obliged to get involved. He had to engage the services of an
attorney and an advocate at considerable
expense. He was put out of
pocket although the dispute(s) between the applicant and the 2
nd
respondent was really no concern of his.
[10] The rule provides
that the party who desires to demand security for costs from another
must set out the grounds upon which
such security is claimed and the
amount demanded – rule 47(1). The notice in terms of the rule
must be delivered as soon
as practicable after the commencement of
the proceedings.
[11] The applicant’s
main application was served on the 1
st
respondent on the 13 April 2010. The very next day, the 1
st
respondent served the requisite notice in terms of rule 47(1) on the
applicant demanding that the applicant put up security for
the costs
in the amount of R100 000,00. The 1
st
respondent has complied with these formal requirements of the rule.
[12] The grounds on which
the 1
st
respondent demanded security from the applicants were stated as
follows in the relevant notice:
“
2.1 That the Applicant does not
have the financial means with which to pay or contribute towards any
order of costs that might be
granted in favour of the First
Respondent;
That the Applicant’s
liabilities exceed their assets;
That at present, the monthly
expenses of the Applicant exceed her monthly income; and
That the Applicant already made
various agreements with certain creditors to make payment of her
debts by way of monthly instalments.”
[13] The applicant
ignored the 1
st
respondent’s demand for security. She refused to do so
although she intimated in her answering affidavit that she had made
arrangements to have an amount of R100 000,00 paid into the attorneys
trust account apparently for this very purpose. Implicit
in her
averment as contained in paragraph [25] was an acknowledgement by the
applicant that the 1
st
respondent was at least entitled to insist on her furnishing security
in the first place. Mr Johnson, counsel for the 2
nd
and 3
rd
respondents, like Mr Steyn, counsel for the 1
st
respondent, submitted that by making the particular averment the
applicant had in fact tendered to put up security for costs in
the
amount as demanded by the 1
st
respondent. I am persuaded that by so doing the applicant exonerated
the 1
st
respondent from justifying the amount of the security.
[14] As a result of the
applicant’s refusal to provide security the 1
st
respondent delivered a formal application to compel the applicant to
furnish security for costs which application I was called
upon to
adjudicate. The application has become a full-blown contest.
[15] The 1
st
respondent seeks the following relief according to the notice of
motion dated the 22
nd
April 2010:
15.1 That the applicant
be directed to provide security for the costs in accordance with the
1
st
respondent’s notice in terms of rules 47(1) dated the 14
th
April 2010;
15.2 That the amount of
the security to be provided be determined by the registrar of this
court;
15.3 That the proceedings
under the above case number be suspended until such time as the
applicant has complied with the order
of this court by providing
security for costs as contemplated in rule 47;
15.4 That the 1
st
respondent be granted leave to apply, on these papers, duly
supplemented, for an order dismissing the applicant’s
application
with costs, in the event of the applicant’s
failing, within a reasonable time, to provide security as
contemplated in paragraphs
1 and 2 of the notice of motion;
15.5 That the applicant
be directed to pay the costs of this application.
[16] The general rule
applicable to an individual litigant is that no natural person, who
resides in this country as an incola and
who sues as the plaintiff,
can be compelled to give security for costs except in certain
exceptional circumstances –
VAZLADELIS
v CASTLE BRIDGE PRIMARY SCHOOL CC AND ANOTHER
(2006) JOL 17288
(O) per Hattingh J.
[17] The rationale of the
rule is that no hurdle should be permitted to stand in the way of a
person’s access to court and
that no court should shut its
doors by requiring an impecunious litigant to provide security for
the costs of her opponent -
CREST
ENTERPRISES (PTY) LTD AND ANOTHER v BARNETT AND SCHLOSBERG NNO
1986 (4) SA 19
(C) at 20 B – D per Berman J.
[18] Mavundla
J held that a court has a discretion to order or not to order the
principal litigant to furnish security for the costs
of the opponent
and that, in exercising such discretionary power, the court has to be
mindful of the principal litigant’s
right of access to court
services –
MONKAM
v MONKAM
(2007) JOL 20825
(T). Of course the court derives such power from
its inherent jurisdiction.
[19] The
party seeking security in intermediate proceedings bears the onus of
proving that it is necessary for a party who initiated
the main
proceedings to provide security for costs –
MONKAM
,
supra
and
VAZLADELIS
,
supra
.
[20] The mere inability
of an incola, such as the applicant, to satisfy a potentially adverse
order of costs, in itself, is not
sufficient to justify ordering her
to furnish security for costs of an adversary such as the 1
st
respondent in these proceeding. Something more is required. Over
and above the inability the court must also be satisfied that
the
main case is vexatious or reckless or amounts to an abuse of court
process.
RAMSAMY
NO & OTHERS v MAARMAN NO & ANOTHER
2002 (6) SA 159
(C) at 172 I.
[21] The onus rests on a
party who applies for the provision of security to satisfy the court
that, apart from financial inability
and other factors, exceptional
circumstances exist to justify the conclusion that the principal
action was actuated by vexatious
or reckless or abusive
considerations -
RAMSAMY
NO AND OTHERS v MAARMAN NO AND ANOTHER
2002 (6) SA 159
(C) at 173 per Thring J.
[22] In
BOOYSEN
& ANOTHER v EKSTEEN
(2007)
JOL 20796
(O) at par. 8 Milton AJ quoted with approval the aforegoing
view of Thring J at par. 172B
RAMSAMY
,
supra
,
as regards the plaintiff’s lack of financial means to satisfy a
potentially adverse costs order. That view cannot be seriously
criticised. However, I prefer the view expressed by Olivier J in
FITCHET
v FITCHET
1987 (1) SA 450
(E) to the effect that the financial ability of the
plaintiff to comply with an adverse costs order to pay the
defendant’s
costs of the action, should such action be
unsuccessful, is an obvious factor which should be taken into account
in considering
an intermediate application of this type. The
financial means of the plaintiff is but one of the important factors
to be taken
into account.
[23] There
may well be other considerations relevant to the exercise of the
discretion to grant or not to grant the application,
for instance,
the substantive merits of the main proceedings –
DAVIDSON'S
BAKERY (PTY) LTD v BURGER
1961 (1) SA 589
(O) at 593 E per Klopper J. The relief for the
provision of security may be granted even if the court merely finds
that the main
action has doubtful chances to succeed at the trial
without making a firm finding that the main action has virtually no
prospects
of success.
[24] The
rule was not designed and enacted to shut out the halls of justice in
the face of deserving litigants with genuine and
sustainable cases
simply on account of their poor financial means, but rather to
protect apparently blameless defendants whose
financial means are
seemingly threatened by impecunious plaintiffs with unsustainable or
dubious claims and from whom such defendants
are unlikely to recover
the costs awarded in their favour in the likely event of such
plaintiffs failing in their seemingly hopeless
actions.
[25] It
is important to appreciate two possible scenarios when dealing with
intermediate proceedings for the provision of security.
The first
stage concerns the adjudication of the defendants’ demand for
provisional security. If the court decides against
the defendant,
the main proceedings normally proceed without any security or any
other hindrance. However, if the court decides
in favour of the
defendant, the plaintiff is obliged or directed to furnish security.
In such an event, the plaintiff’s
action does not normally
proceed. Instead, it becomes suspended pending the plaintiff’s
compliance. This is the initial
stage of this kind of intermediate
proceedings.
[26] Where
the plaintiff complies, the suspension falls away and the main action
resumes. However, should the plaintiff fail to
furnish security in
terms of the court order made at an initial stage, then the defendant
can again approach the court for an appropriate
relief. The second
stage concerns the adjudication of the defendant’s demands for
the final dismissal of the plaintiff’s
case. This then is the
final stage of this type of intermediate proceedings. This
subsidiary stage flows from the previous one.
It is brought about by
the plaintiff’s failure to pay or furnish security.
[27] Although
the two stages are substantially connected, the relief sought is an
elementary distinction between the initial and
the final stages. On
the one hand, the effect of the initial stage is merely to
temporarily slow down the main action by making
it unusually
cumbersome. On the other hand, the final stage seeks to completely
derail or finally stop the main action. The remedial
distinction is
of vital importance.
[28] As
regards the final stage for the dismissal of the main action without
hearing tested oral evidence on the merits, the court
requires moral
certainty alone that the main action is unsustainable and therefore
vexatious. This is where the stringent merit
test applies. As
regards the initial stage for the furnishing of security, the court
requires no such high moral ground of certainty.
Here the court must
adjudicate the matter on the basis that the main action is dubious,
although not altogether improbable, and
that it has very slim chances
of success. The less stringent merit test therefore, applies to the
initial stage. This was the
stage I had to grapple with in these
current proceedings. It was precisely this stage of the adjudication
process Olivier J had
in mind when he correctly ventured to say:
“
It may
well be that, in applications for security for costs, the test should
be somewhat different.”
FITCHET
,
supra
,
at 454 E.
[29] The
word vexatiousness seems to have two distinct dimensions at common
law. Its one dimension outside the legislative parameters
is that a
vexatious action, for the purpose of finally dismissing an action,
has been equated to an action standing outside the
region of
probability altogether and which is incapable of succeeding, because
it is certainly impossible. Here the onus is a
very stringent and a
very exceptional one. Nothing but certainty is required to satisfy
the court that the main action has virtually
no prospects of success
at all.
[30] The
other dimension of the word vexatiousness outside the legislative
framework is that a vexatious action, for the purpose
of seeking
security, has to be equated to one standing within the domain of
probability and is therefore well capable of succeeding,
though its
chances appear doubtfully slim, because although it is not certainly
impossible, it is obviously unlikely to survive
the trial. In this
scenario the onus is not as stringent and exceptional as in the
previous category of vexatiousness. The court
needs only be
satisfied that the main action is unlikely to succeed and not that it
will most definitely fail.
[31] The
provisions of Vexatious Proceedings Act No. 3 of 1956 authorise
courts to prohibit further legal proceedings by a person
who has
persistently and without any reasonable cause instituted legal
proceedings against another. Therefore, the element of
persistence
legal steps against a particular person distinguishes statutory
vexatiousness from common law vexatiousness –
FITCHET
,
supra
.
At common law the very first civil action against another may,
depending on the circumstances, be classified as vexatious or
reckless or an abuse of the court process. A classical example of
statutory vexatiousness is the unreported matter of
PAPANE
v VAN TONDER & OTHERS
(FS 6066/08) delivered on 9 April 2009 where over a period of more
than ten years the plaintiff persistently instituted hopeless
proceedings against the defendants, who include the SABC in almost
every court.
[32] On behalf of the 1
st
respondent, it was forcefully contended that the applicant’s
main application was characteristically vexatious, reckless
and
abusive. I shall revert to this contention later.
[33] In her founding
affidavit in support of the main application the applicant states
that she has no reliable income; that the
main source of her income
originates from legal aid briefs she receives from the Legal Aid
Board which briefs are unreliable and
provide inadequate income for
her survival; that she does not have any insurance policies of note;
that she belongs to no pensioen
scheme; that she does not have a
reliable motor vehicle; that she cannot afford to buy a vehicle and
that she has not been on holiday
for a period of four consecutive
years and that she cannot afford to go on holiday.
[34] In her answering
affidavit in opposition to the security application the applicant
surprisingly and in fact distressingly somersaults.
She seeks to
deny that which she stated in her founding affidavit in the main
application. The following instances demonstrate
the inconsistencies
of her statements in the two affidavits. As regards an income; which
she chiefly derives from legal aid briefs,
she now blames the 1
st
respondent for her precarious financial situation.
[35] Her claim or
suggestion that her income would have been different now had the 1
st
respondent done his work correctly and punctually fails to impress.
I cannot see how the 1
st
respondent determination could have positively affected her income if
it were punctually completed before the 19
th
February 2010. Put differently, it is unclear as to how the 1
st
respondent’s belated determination could have negatively
affected the frequency of the briefs she receives from the Legal
Aid
Board which briefs are the primary source of her livelihood –
par [36.2], main application read with para [19], security
application.
[36] As regards a
holiday, which she has not taken in four years, she now claims she
decided to forego going on holiday in order
to save money. This
implies that all along she had the money which she could have spent
to go on holiday but instead decided rather
to save such money over
the past four years. This is in sharp contrast to her earlier
version that she could not afford going
on holiday – par
[37.3], main application read with para [18.2], security application.
[37] As regards a motor
vehicle, which she needs not only to practise her vocation but also
to go around, she now obscurely claims
that she does have a motor
vehicle but suggests that compared to that of the 1
st
respondent hers was worth far less. Obviously this is not the same
thing as saying she has no reliable motor vehicle. It now
seems that
her motor vehicle is reliable and in a roadworthy condition. The
problem seems to be that the 1
st
respondent apparently drives a comparatively better or more expensive
vehicle – para [37.2], main application read with para
[18.1],
security application.
[38] When a subsequent
statement of a witness contradicts the previous statement, a witness
is held to the previous statement.
As a general rule a witness is
not allowed to somersault as the applicant does in this case.
Applied to the instant case, the
effect of the principle is that the
applicant derives her income from the public defender system; that
such briefs are infrequent;
that the income so derived is not only
unreliable but also inadequate for her basic needs of subsistence;
that she belongs to no
pension scheme; that she has no insurance
policies of note and that her financial situation is so poor that she
cannot afford to
go on holiday; that her financial situation has been
desperate for a long period of four years immediately preceding her
main application.
[39] The question which
now arises from the applicant’s prevailing circumstances is
whether she will be in a position to pay
the costs of the respondent
should her main application be unsuccessful. The answer is obvious.
She alleges that she has the
financial support of a certain Ms
Brittain, apparently her neighbour and friend. This averment, far
from supporting her case,
fortifies the contention of the 1
st
respondent that the applicant will not be able to satisfy any order
of costs that might be granted in favour of the 1
st
respondent.
[40] In her confirmatory
affidavit dated the 31
st
March 2010 in support of the applicant’s main application, Ms
Brittain herself confirms:
“
I am aware of the applicant’s
financial demise since her ex-husband left her and I am prepared to
assist her wherever necessary
especially to retain her home for
herself and her children.”
There you have it. She
is literally a “woman” of straws. The entire case, we
now know, is about her wish to retain
the house owned by the 2
nd
respondent, a man to whom she was married out community of property.
That this matter is about the applicant’s desire to
retain and
exclusively own her former husband’s house, is also evidenced
by the very first statement in her heads of argument
drawn up by her
goodself. She kicks off on a very emotive note that there is a
serious threat to evict her from her home of twenty
two years.
Certainly the particular house was her home for over two decades.
Whether she has become the owner thereof by effluxion
of time, is a
different proposition altogether. It seems the law is not on her
side. I have sympathy for this poor lady.
[41] Ms Brittain also
evidences the fact that the applicant does not and will not have
financial means to pay or contribute towards
any order of costs which
might be granted against her in favour the 1
st
respondent. She relies upon a loan from Ms Brittain in a bid to
convince the court about the healthy state of her financial affairs.
However, this only serves to prove the very opposite of what she
intended to establish. A loan impoverishes because it increases
one’s liabilities. There can be no doubt about the unhealthy
state of her financial affairs. Her banking on someone weakens
her
already weak case. The bottom-line of all this is that she is not
financially self-reliant.
[42] At para 25 of her
answering affidavit in connection with the security application the
applicant stated that she had already
made arrangements to have R100
000,00 deposited into her attorneys trust account as security for
costs. Before this interlocutory
application was heard, the 1
st
respondent’s attorneys called upon the applicant to pay the
said amount to her attorney for that purpose – annexure
A. The
applicant’s response, through her attorneys, was an outright
repudiation of that suggestion – annexure B.
Her negative
stance was amazing. Although she had intimated that the funds were
available; that she was willing and able to afford
the amount, when
she was called upon to make provision for just that in accordance
with her offer she reneged. This was not without
significance. She
probably did not have the money she claimed she had or she did not
obtain a loan she expected she would obtain.
Her unexplained refusal
to pay the funds over to her attorneys as a provision for costs put
her promised financial support from
her neighbour in a very different
light.
[43] It is also the 1
st
respondent’s case that the applicant’s liabilities exceed
her assets. Although the applicant disputes this, she makes
no
effort to tabulate her liabilities. She only tabulates her assets.
She now complains that the 1
st
respondent failed to investigated her material or proprietary affairs
properly. However, she herself dismally fails to set the
record
straight. She gives details of her assets only, withholds
information relating to her liabilities but alleges her assets
exceed
her liabilities. In my view the omission to candidly disclose her
liabilities was deliberate. The 1
st
respondent was involved in determining the accrual of the applicant’s
estate. Therefore he had intimate knowledge of her
financial
situation. There is no reason to doubt his averment in this regard.
His averment that her liabilities exceed her assets
is probably a
correct reflection of the true state of affairs. It is significantly
bolstered by her deliberate omission to disclose
her liabilities
which she claims to be far less than her assets.
[44] In the main
application the applicant places absolutely no reliance on the
accrual determination made by the 1
st
respondent. As a matter of fact the main application was
precipitated by her absolute repudiation of such determination. She
is determined to have it set aside. That being her stance, she
cannot now, in an endeavour to defeat the 1
st
respondent’s application for security, rely on an amount
allocated to her in accordance with the same accrual determination
she rejects – para 15.4. It will be noted that she lists as an
asset in her exclusive estate, an amount of R469 490,88 –
para
13 item 7. By so doing she approbates and reprobates. The law does
not countenance such a strategy.
[45] At para 15.5 of her
answering affidavit in connection with the security application the
applicant reacts as follows to the
1
st
respondent’s allegation:
“
15.5 Applicant has no proof
that my monthly expenses exceed my monthly income and my monthly
expenses do not exceed my income in
any form.”
She does not deal with
her income and expenses at all save to make this bold statement. She
evasively shies away from the point.
She makes no effort to
meaningfully disprove the 1
st
respondent’s allegation. Perhaps Mr Steyn is correct in saying
that for some reason, she is shy to deal with her true financial
position now that the shoe pinches.
[46] Her financial
position appears to be so parlous that she now desperately but
wrongly attempts to beef it up by resorting to
the accrual
determination she has already repudiated. When that amount, which
represents approximately 64% of the value of her
alleged assets is
discounted or disregarded, such value substantially drops to R265
469,65. It must be borne in mind that even
this is not a favourable
value. According to the 1
st
respondent, the value of her assets is eclipsed by that of her
liabilities. According to the 1
st
respondent the value which the applicant places on her assets is
highly questionable. It is important, however, that he is of
the
opinion that the value of her asset is overshadowed by the value of
her liabilities.
[47] In many instances in
her answering affidavit the applicant described the 1
st
respondent in serious derogatory terms. She claims that he is a
dangerous fishing expeditionary, that he is an unprofessional
practitioner – para 17.2, that he is a reckless litigant –
para 17.7, and that he is a vexatious individual –
para 17.9.
She insinuates that he is an incompetent and dishonest attorney –
para 18.2 and also insinuates that he deliberately
ambushed her by
bending the rules and resorting to dirty, abusive and sharp practices
to sabotage or derail her good case –
para 22.3 and that he is
afraid of her strong case – para 20.3. She reckons that the
1
st
respondent either through incompetence or deception or collusion or
some other unorthodox ways represents that the amount of the
accrual
is R4,5m less than it is in truth and in reality – para 20.5
and 20.6.
[48] These negative
characterisation of the 1
st
respondent was, in my view misguided and unwarranted. If the first
respondent was an untrustworthy or unethical lawyer, as he
is
portrayed to be, he would probably have decided to make the accrual
value much more than he actually found in order to inflate
his
remuneration which is proportionally linked to the accrual value. Mr
Steyn contended that the aforegoing statements or insinuations
by the
applicant of the 1
st
respondent were scandalous and defamatory. Her behaviour, counsel
argued, was disgraceful and unbefitting of an advocate.
[49] These allegations
are serious, constituting as they do, an unwarranted vitriolic attack
on the character of the 1
st
respondent, an attorney and an officer of the court, by the
applicant, an advocate and herself an officer of the court. It must
be remembered that the 1
st
respondent did not ask to be appointed a receiver in the estates of
the feuding couple. Allegations of this sort are very serious
to
make of anybody. Their gravity is a matter of great concern in this
instance because they were made by one officer of the court
against
another. Of particular concern is that these unfortunate remarks
relate to the integrity of a lawyer. In my view they
appear to be
lamentably devoid of substance.
SOCIETY
OF ADVOCATES v EDELING
1998 (2) SA 852
(W) at 898F – H.
[50] On the facts, I am
of the firm view that a proper case has been made out for the grant
of the application for the provision
of security concerning the
costs. Therefore I make the following findings: that the applicant
does not have the financial means
to pay or contribute towards any
order of costs that might be awarded in favour of the 1
st
respondent in the main action; that her liabilities exceeds her
assets; that her monthly expenses exceed her monthly income; that
the
main action was vexatious, reckless and constituted an abuse of the
court process; and that the main action appears unlikely
to succeed.
I would therefore granted the application.
[51] There remains one
more aspect to deal with. It concerns the issue of costs. The
decision of the applicant to sue the 1
st
respondent was misguided. She sued him in his personal name. The
1
st
respondent was appointed by the applicant and the 2
nd
respondent on the advice of or in collaboration with the lawyers. I
have already pointed out that the applicant agreed to be bound
by the
1
st
respondent’s accrual determination as a final decision. The
deed of settlement and the court order in which it was incorporated
still stand and must be respected. This appears to be one of the
many insurmountable obstacles she will have to circumvent before
her
main application can succeed.
[52] My
prima
facie
view, which I express with great reluctance, is that the main
application was recklessly, vexatiously and abusively instituted
against the respondents – particularly the 1
st
respondent –
RAMSAMY
,
supra.
The applicant’s unfounded, vicious and vitriolic attack on the
1
st
respondent’s character was a strongly aggravating factor which
cannot be left uncensured. This, in my view, is an appropriate
case
where the wroth of the court must be expressed through a punitive
order of costs. I am, therefore, inclined to penalise the
applicant
by saddling her with a special costs order as between attorney and
client. The comments I made in par. 9,
supra
,
provide further justification for a punitive costs order.
[53] These then are my
reasons for the order I made on the 20
th
May 2010. That order, which is annexed hereto, is hereby
incorporated in this judgment by reference. I rest my judgment.
____
__________
M.
H. RAMPAI
,
J
On behalf of the
applicant: Adv. V. Patrinos
Instructed by:
Cobus le Roux Inc.
BLOEMFONTEIN
On behalf of the 1st
respondent
in main
application: Adv. J. W. Steyn
Instructed by:
Christo Dippenaar
Attorneys
BLOEMFONTEIN
/em