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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2024] ZAKZPHC 82
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K.L.F v D.R.P (13600/2023P) [2024] ZAKZPHC 82 (19 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
13600/2023P
In the matter between:
K[...] L[...]
F[...]
APPLICANT/DEFENDANT
And
D[...] R[...]
P[...]
RESPONDENT/PLAINTIFF
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
On 13 September 2023 Respondent herein (as Plaintiff therein)
instituted an action in this court
against Applicant (as Defendant
therein) wherein he claims that he and Applicant had a domestic
partnership agreement and claims
the following relief:
1.
An order confirming the dissolution of the spousal relationship
existing between the parties.
2.
An order appointing a liquidator with authority to valuate and
realise the joint estate and
the jointly owned assets of the parties
and to liquidate the joint liabilities with the parties and to
prepare a final account
paying to the parties whatever is owing to
them by virtue of the spousal relationship.
3.
An order declaring that a partnership alternative that a universal
partnership exist between
the parties in respect of the business
subsequently registered as “Little Fields”.
4.
An order that the parties relationship alternatively that universal
partnership in respect
of the business formally known as “Little
Fields” subsequently registered as “Little Fields”
be dissolved.
5.
An order that a liquidator be appointed to take charge of all assets
of the partnership alternatively
universal partnership, dispose of
same, pay all debts of the partnership alternatively universal
partnership and divide the net
proceeds equally between the parties.
6.
Costs of suit.
[2]
It was alleged in the particulars of claim on 24 February 2023 the
parties entered into a notarial
agreement and confirmed that they had
been in a good faith heterosexual spousal relationship for more than
5 years; that it entailed
reciprocal duties and that they had
previously signed a cohabitation agreement. A copy of the said
notarial agreement is
attached to the particulars of claim. It
sets out that they have been in such a heterosexual spousal
relationship for more
than 5 years which is intended to be permanent
and to the exclusion of any other person and their relationship
continues to subsist.
This spousal relationship entails
reciprocal duties care and support and refers to a cohabitation
agreement signed on 17 December
2020.
[3]
At the time that the action was instituted Respondent was permanently
resident in South Africa
in the jurisdiction of this court but
subsequently relocated to England where he had originally come from.
He alleges in
the particulars of claim that he contributed in excess
of £50 000 to the farming operation to purchase assets etc.
[4]
Besides the notarial agreement signed on 24 February 2023 Applicant
and Respondent signed a cohabitation
agreement before a notary public
on 17 December 2020. It commences with the preamble that the
parties are living together
under a domestic partnership arrangement
and have been since February 2015. On 17 December 2020
Applicant and Respondent
also signed an affidavit before a
commissioner of oaths which is headed “Affidavit in respect of
parties to a permanent spousal
relationship” on a form of the
Department of Home Affairs. Therein they stated that they were
parties to a spousal
relationship for the past 5 years and 10
months. None of these three documents were attached to
Applicant’s founding
affidavit.
[5]
Applicant in her plea in response to the documents referred to above
states that the parties entered
into an informal arrangement which
could be equated to a domestic partnership for purpose of convenience
only. This informal
arrangement was solely for purposes of
regulating the financial implications flowing from their platonic
friendship. She
denies that there was any good faith
heterosexual spousal relationship between the parties.
[6]
Applicant on 17 November 2023 applied for an interim protection order
in terms of
section 5(2)
of the
Domestic Violence Act 116 of 1998
in
the Magistrates’ Court Howick. In the papers there is no
affidavit attached relating to this application and it
is accordingly
not possible to determine what was alleged transpired and which
allowed the Magistrate to grant the said interim
protection order.
However the fact that such an application was brought in term of the
Domestic Violence Act is
indicative that there was some domestic
relationship between the parties as appears from the affidavits
referred to above dated
24 February 2023 and 17 December 2020.
[7]
The interim protection order was anticipated by Respondent on 20
November 2023. The parties
entered into a settlement agreement
with heading “draft order” stamped by the Magistrate on
12 December 2023.
The ruling/judgment by the learned Magistrate
on 12 January 2024, after the settlement had been reached, states
that “Application
withdrawn IPO not extended and the matter
removed from the roll.”
[8]
In the said settlement agreement it was agreed
inter alia
that
Respondent could reside on the farm until he left the country and
that an airline ticket would be purchased for him by Applicant.
It was also agreed that in respect of any benefit due to him in
respect of the flock of sheep on the farm and freight costs
relocating
to the United Kingdom Applicant would pay to him an amount
of R250 000.00 to be paid into his attorney’s trust account.
Applicant would also do all that is necessary and sign all documents
necessary to sell and transfer the Land Rover vehicles and
a trailer
which are to be sold. The proceeds would be paid to
Respondent. Respondent’s rights in respect of the
High
Court Action under case number 13600/2023P are reserved.
[9]
Respondent returned to the United Kingdom at the end of December
2023. On 26 January 2024
Applicant brought an application that
Respondent be directed to give security for costs in relation to the
action which I have
referred to in the sum of R 200 000.00 and that
the action be stayed until such time that Respondent has provided
such security.
The application is opposed by Respondent.
It is common cause that Respondent is now a
peregrine
and that
Applicant may request that security for costs be provided.
[10] It
was submitted on behalf of Applicant that the action was vexatious
and one way of preventing vexatious
litigation is to direct that
Plaintiff furnish security for costs. It was submitted that the
agreements relied upon by Respondent
militate against the conclusion
propounded by Respondent that any sort of partnership was formed or
on came into existence between
the parties. It was further submitted
that Respondent attempted to mislead the Court in relation to the
Draft Order agreed to in
the family violence proceedings as he stated
in his affidavit that it had not been made an order of Court.
[11] It
was submitted that Respondent as a
peregrines
owns no
immovable property in South Africa, that he does not own anything and
on his own version is in debt, attempting to start
life afresh in the
United Kingdom.
[12]
From what I have set out above it is, in my view, apparent that it
cannot be said that the action
is vexatious as what is contained in
the said affidavits which are attached to the papers and which were
also on two occasions
signed before a notary public that indeed there
was on paper a of domestic relationship between the parties and if it
was not so
that someone was not being truthful as to the state of
affairs. The affidavit on the form of the Department of home
Affairs
refers to “A permanent spousal relationship.”
[13]
In my view, there is nothing in the papers to indicate that it has
been instituted
male fide
or vexatious. The only issue is thus whether, as a
peregrine
Respondent should be ordered to pay an amount as security for costs.
Applicant provided a judgment by Pillemer AJ which relates
to two
companies but where it was held that ordering security against a
peregrinus
is the usual practice and that he was not satisfied that any of the
grounds relied upon as to why security should not be awarded
were
valid. One of the reasons relied upon was that Defendant would
have to proceed against Plaintiff overseas to obtain
costs in its
favour an increased expense in the event of being successful.
[14] It
was submitted on behalf of Respondent that it has to be considered
whether the claim was made in good
faith and has reasonable prospects
of success. Should Applicant be successful with a costs order
why that would not be recoverable
in Respondent’s
jurisdiction. It was submitted that the settlement agreement
which was reached at the domestic violence
proceedings was not in
full and final settlement as Respondent had specifically, in the last
paragraph, stated that he reserved
all his rights in respect of the
main action.
[15] On
behalf of Respondent I was referred to judgment of Binns-Ward J. in
the matter of Donal Anthony McHugh
N.O. & others v Paul Michael
Wright case number 5641/2020 Western Cape Division where it was held
that in Magida v Minister
of Police
1987 (1) SA 1
(A) Joubert JA
identified that an incola enjoyed no right under the common law to
require a non-domicile foreigner claimant to
provide security for
these costs as a matter of course. It was held in held in
paragraph 33:
“
In
all the circumstances Wright is going to be stretched to afford his
own legal costs, let alone also those of the respondents
if he is
unsuccessful in the litigation. That is a factor weighing in
favour of the parties seeking security for their costs,
but, as the
principles rehearsed above show it is not of itself a decisive one.”
[16] It
considered whether the litigation was frivolous or vexatious.
As I have already referred to above,
in my view, it cannot be said
that the litigation is frivolous or vexatious especially considering
the various affidavits under
oath, two before a notary public where
Applicant specifically refers to a domestic relationship.
Respondent was also not
misleading the court by stating the
settlement was not made an order of court. Although it’s
heading “draft order”
it was not made an order of court
as appears from the courts order referred to in paragraph 7 above.
It is indeed so that
it is not necessary at this stage for the merits
of the action to be considered especially having found it is not
vexatious.
The question therefore is whether Applicant will be
able to recoup the costs in the event of being successful in the
litigation.
[17] It
was held in Magida at 15 E:
“
The
Roman Dutch Authorities referred to supra emphasise that no one
should be compelled to furnish security beyond his means and
that a
peregrinus
should
not on account of his impecuniosity be deprived form prosecuting his
action against an incola.”
[18]
Respondent appears to have the money which is in his attorney’s
Trust account and should also have
the money from the vehicles and
trailer.
[19]
Applicant has however failed to set out all the facts in her founding
affidavit and wrongly accused Respondent
of misleading the court.
It is also not so that what is contained in her affidavits does not
support Respondent’s contentions.
[20] It
may be a more costly process for Appellant to recover her costs if
successful but although there is nothing
to indicate that it cannot
be done I am of the view that some security for costs should be
granted in the amount set out in the
order.
[21]
However due to the factors I have mentioned above I am of the view
that no costs order is justified.
Order:
An order is granted in
terms of paragraphs 1, 2, 3 and 4 of the Notice of Motion the amount
in paragraph 1 to be R 75 000.00.
P C BEZUIDENHOUT J.
JUDGMENT
RESERVED:
1
AUGUST 2024
JUDGMENT
HANDED DOWN:
19
AUGUST 2024
COUNSEL
FOR APPLICANT:
S
FRANKE
Instructed
by:
Hay
& Scott Attorneys
Pietermaritzburg
Ref:
R F Brent/jf/09F219001
Email:
roderick@hayandscott.co.za
COUNSEL
FOR RESPONDENT:
FINDLATER
Instructed
by:
Findlater
attorneys
Howick
Ref:
PAT002/001
Email:
info@findlater.co.za
ca@findlater.co.za
pa@findlater.co.za