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[2008] ZAWCHC 78
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Mahon v Mahon (18974/2008 & 14918/2008) [2008] ZAWCHC 78 (21 December 2008)
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
Case No:
18974/2008 & 14918/2008
In the
matter between:
IOLA
MAHON
Applicant
and
BRIAN
ROBERT MAHON
Respondent
CORAM : D M
DAVIS J
JUDGMENT
BY : DAVIS J
FOR THE APPLICANT : ADV D MITCHELL (SC) &
ADV F J GORDON- TURNER
INSTRUCTED
BY : GUTHRIE & RUSHTON ATT.
FOR THE FIRST
RESPONDENT : ADV A KATZ &
ADV J THAYSEN
INSTRUCTED
BY : MAURICE PHILLIPS
WISENBERG
DATE OF
HEARINGS : 21 NOVEMBER 2008
DATE OF
JUDGMENT : 21 DECEMBER 2008
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
14918/2003
DATE:
21 NOVEMBER 2008
In
the matter between:
IOLA
MAHON
Applicant
And
BRIAN
ROBERT MAHON
Respondent
JUDGMENT
DAVIS,
J
:
[1]
This is an application to compel respondents to furnish security
for costs. The case has a somewhat unfortunate history.
Briefly
stated, on 19 March 2008 the Family Division of the High Court of
Justice in England granted certain ancillary relief
orders in favour
of applicant in divorce proceedings. The orders were supplemented
and made final by the Court on 23 April 2008.
Respondent sought to
appeal the judgment and this application for leave to appeal was
refused by the Court of Appeal on 24 June
2008.
[2] Respondent
has made no payments to applicant in terms of this judgment,
whether in respect of capital, maintenance for the
parties and minor
children or costs. As a result and without dealing with all the
details of the case
f
the applicant instituted provisional sentence proceedings in
the court. The defence raised by the respondent to the proceedings
was a lack of jurisdiction. At the date of service of the
provisional summons, he contended that he was a
peregrinus,
having
left the jurisdiction of South Africa in early 2007. He further
stated that he owned no assets in South Africa and does
not carry
on business in the country. Respondent unsuccessfully sought a
postponement of proceedings for provisional
sentence. Provisional
sentence was finally granted by
Erasmus,
J
on 19 August 2008.
[3] Two
further pieces of litigation have flown therefrom: firstly an
application for leave to appeal which is pending and secondly
an
application in which respondent argues that the provisional sentence
summons is inconsistent with provisions of the Republic
of South
Africa Constitution Act, 108 of 1996.
[4] As
a result of the constitutional challenge, the applicant has come to
this Court for an order for security of costs. As Mr
Katz, who
appears together with Ms
Thaysen
on behalf of respondents submitted, correctly, that the
onus
is
on the applicant to prove that she is entitled to a claim for
security of costs. Furthermore, it is fairly trite law that
the
process involves two separate stages, (1) an allegation to be
proved by the applicant that the respondent is
a
peregrinus;
(2)
if that is proved, then the Court wilt need to be persuaded to
exercise a discretion as to whether to grant the order so sought.
See
MTN
Service Provider (Pty) Ltd v Afrocore (Pty) Ltd
2007(6) SA 620 (SCA) at paras 6-7.
[5] The
issue with regard to the question of whether the respondent is a
peregrinus
constituted
the first point of Mr
Katz's
attack on the order so sought. In his submission, the applicant was
obliged not only to allege but to show some factual basis
that the
respondent is a
peregrinus.
In
his view, the applicants failed to prove, let alone allege, that the
respondent was a
peregrinus.
Indeed,
he noted that applicant had refused to accept or admit that the
respondent is a
peregrinus.
[6] In
P
rotea
Assurance Company Ltd v Januszkiewicz
1989(4)
SA 292 (W)
Goldstone,
J
(as he then was) analysed the particular question as to what is
required in his judgment, he cited Herbstein and Van Winsen with
approval:
â
[T]he
proper conclusion be to drawn from the authorities is that either
domicile or residence is sufficient to constitute a person
an
incola
insofar
as the question of being bound to furnish security for costs is
concerned. The proper approach is therefore that domicile
or
residence of some permanent or settled nature is sufficient to
constitute a person an
incola
for
the purpose of being obliged to furnish security for costs" (at
294F)
[7] In
the present case
the applicant relies,
inter
alia,
on
a confirmatory affidavit deposed to by the respondent in the
constitutional application to which I have made reference, in
which
he states baldly: "I state that from early July 2008 and at all
times since then I have been permanently resident
and domiciled in
Mauritius". Mr
Katz
responds to this argument in two ways. Firstly he suggests that this
averment is not enough, that somehow further proof is required
to
show that the respondent is neither resident nor domiciled in South
Africa. Secondly he submits that, in the judgment for
provisional
sentence,
Erasmus,
J
,
at the very least by implication, must have been taken to have
rejected the notion that respondent was a
peregrinus
in
order to grant provisional sentence.
[8] Both
of these particular arguments can be disposed of in the same
fashion. There is an affidavit by the respondent in which
he asserts
that he is permanently resident and domiciled in Mauritius. Whatever
the applicant may have said in the provisional
sentence proceedings,
the respondent deposes to an affidavit to the fact that he is
permanently resident and domiciled in Mauritius.
What further proof
is required? Is this Court to find against the applicant and in
favour of respondent by effectively saying
the respondent has lied
on oath? I do not think that a Court should countenance this kind of
defence and I am not prepared to
so do.
[9] It
may well be that
Erasmus,
J
held that the respondent was an
incola
at
the time of the granting of provisional sentence. I do not propose
to engage in an analysis of that particular judgment which,
in any
event, is not before me. What is before me is that, after the
provisional sentence judgment was granted, the respondent
has stated
in papers before the highest court of the land that he is
'permanently resident and domiciled in
Mauritius". This
is the version of respondent placed before the Court. On these
papers, I am entitled to take this version
seriously and J do so.
Accordingly, in my view, applicant has proved that the respondent is
a
peregrinus
for
the purposes of this application.
[10]
That then raises the second question, namely whether this Court
should exercise its discretion in favour of the applicant.
If one
reads the papers in the way that Mr
Katz
has urged me to do, that in effect means that there was an
insufficient basis laid in the founding affidavit for why this Court
should exercise its discretion in favour of the applicant. Mr
Mitchell
,
who appears together with Ms
Gordon-Turner
on behalf of applicant, submitted that this Court can take a broader
view than simply parsing the founding affidavit and look
more
comprehensively at the approach adopted by the respondent in these
proceedings and those related thereto in
Vanda
v Mbuque
1993(4) SA 93 (T).
[11]
Mr
Mitchell
also referred me to the case of
MV
"Guzin"
2002(6)
SA 127 (DCLD) at 130 in which
Hugo,
J
held:
"I
have no doubt that the Courts do have a discretion to grant an order
for security of costs whereas here both parties are
peregrini.
Although
the rule relating to security for costs may have been instituted
in an effort to protect
incola,
there
is no reason why it should also not protect
peregrini
such
as the applicant who, by force of circumstances, must litigate in
these courts". Significantly,
Hugo,
J
then went on to say, in that case which dealt with a ship:
"The
applicant cannot litigate elsewhere, its security lay in the ship
and then latterly in the fund and the only way to
effect its
security is by litigation in this court. To refuse the applicant
the right to claim security can in certain cases
lead to great
injustices". Mr
Katz
seeks to counter this
dictum
in
two ways: (1) Correctly he urges this Court to use its
discretion sparingly, as indeed has been set
out in
the jurisprudence of courts dealing with applications of this kind;
(2) he submits, on the strength of Constitutional
Court
jurisprudence, most recently in
Weare
& Others v Ndebele N.O. & Others
(CCT/08) at para 79, that the Constitutional Court is reluctant to
persuade litigants from challenging the constitutionality
of a law
of the State under which they face statutory penalties and
accordingly this reluctant to grant cost orders in such proceedings.
[12] This
case may well be different. In short, I do not know the outcome of
the proceedings in the Constitutional Court. It is
not for me to so
speculate. The possibility of an adverse costs order against one or
other of the parties is an option available
to the Constitutional
Court. Although I am mindful that this Court's discretion must be
exercised sparingly and carefully, it
appears to me, upon a careful
read of the entire narrative which has given rise to this particular
application, that the approach
adopted by
Hugo,
J
in the
MV
"Guzin"
commends itself. That is, the applicant is forced to litigate in
these courts, both in order to enforce a judgment granted in
the
courts of England and, furthermore, in the context of further
litigation now being pursued by the respondent which could
subvert
any advantage gained through the provisional sentence judgment. The
respondent has been on record as stating that he
has no assets in
South Africa. The question therefore arises as to what other
possible way could the applicant have secured its
own position than
by way of this application.
[13]
There is a letter from respondent's attorney in which the question
of security of costs was never placed in issue, save
for the
quantum
thereof.
That in itself must have some significance in the consideration of
exercising a discretion which is predicated on grounds
of justice
and equity.
[14]
For all of these reasons, the application is granted and the
respondent is directed to furnish security for applicant's
costs
in this application brought by respondent under case number
14918/2008 by no later than Friday 5 December, 2008, If the
security
is not granted, then the application brought by the applicant under
case number 14918/2008 shall be dismissed with costs,
such costs to
include the costs of two counsel. The respondent is directed to pay
the costs of this application, although I consider
one counsel would
have been sufficient. I therefore order respondent to pay the costs
of one counsel.
Davis,
J