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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case No.: 8692/2020
In the matter between:
M[...] A[...] V[...] N.O. First Applicant
(in his capacity as trustee for the time being of the
Le Casseur Trust) (I[...])
E[...] A[...] V[...] N.O. Second Applicant
(in her capacity as trustee for the time being of the
Le Casseur Trust) (I[...])
JACOBUS MARTINUS BURGER N.O. Third Applicant
(in his capacity as trustee for the time being of the
Le Casseur Trust) (I[...])
M[...] A[...] V[...] N.O. Fourth Applicant
(in his capacity as trustee for the time being of the
V[...] Beleggings Trust) (I[...]2)
JOHANNES PETRUS JACOBUS VAN TONDER N.O. Fifth Applicant
(in his capacity as trustee for the time being of the
V[...] Beleggings Trust) (I[...]2)
JUANDRE BOTHA N.O. Sixth Applicant
(in his capacity as trustee for the time being of the
V[...] Beleggings Trust) (I[...]2)
M[...] A[...] V[...] N.O. Seventh Applicant
(in his capacity as trustee for the time being of the
M[...] V[...] Familie Trust) (I[...]3)
JOHANNES PETRUS JACOBUS VAN TONDER N.O. Eighth Applicant
(in his capacity as trustee for the time being of the
M[...] V[...] Familie Trust) (I[...]3)
HESTER BLACKBURN N.O. Ninth Applicant
(in her capacity as trustee for the time being of the
M[...] V[...] Familie Trust) (I[...]3)
EILANDIA PLASE (PTY) LTD Tenth Applicant
(Registration Number: 1992/005583/07)
KORHAAN HOOGTE EIENDOME (PTY) LTD Eleventh Applicant
(Registration Number: 2002/01583/07)
ROCKBELT RIDGE AGRI (PTY) LTD Twelfth Applicant
(Registration Number: 2018/365991/07)
and
E[...] V[...] Respondent
In re:
In the matter between:
E[...] V[...] (née V[...] S[...]) Applicant
and
M[...] A[...] V[...] N.O. First Respondent
(in his capacity as trustee for the time being of the
Le Casseur Trust) (I[...])
E[...] A[...] V[...] N.O. Second Respondent
(in her capacity as trustee for the time being of the
Le Casseur Trust) (I[...])
JACOBUS MARTINUS BURGER N.O. Third Respondent
(in his capacity as trustee for the time being of the
Le Casseur Trust) (I[...])
M[...] A[...] V[...] N.O. Fourth Respondent
(in his capacity as trustee for the time being of the
V[...] Beleggings Trust) (I[...]2)
JOHANNES PETRUS JACOBUS VAN TONDER N.O. Fifth Respondent
(in his capacity as trustee for the time being of the
V[...] Beleggings Trust) (I[...]2)
JUANDRE BOTHA N.O. Sixth Respondent
(in his capacity as trustee for the time being of the
V[...] Beleggings Trust) (I[...]2)
M[...] A[...] V[...] N.O. Seventh Respondent
(in his capacity as trustee for the time being of the
M[...] V[...] Familie Trust) (I[...]3)
JOHANNES PETRUS JACOBUS VAN TONDER N.O. Eighth Respondent
(in his capacity as trustee for the time being of the
M[...] V[...] Familie Trust) (I[...]3)
HESTER BLACKBURN N.O. Ninth Respondent
(in her capacity as trustee for the time being of the
M[...] V[...] Familie Trust) (I[...]3)
EILANDIA PLASE (PTY) LTD Tenth Respondent
(Registration Number: 1992/005583/07)
KORHAAN HOOGTE EIENDOME (PTY) LTD Eleventh Respondent
(Registration Number: 2002/01583/07)
ROCKBELT RIDGE AGRI (PTY) LTD Twelfth Respondent
(Registration Number: 2018/365991/07)
KORHAAN HOOGTE (PTY) LTD Thirteenth Respondent
(Registration Number: 2018/365991/07)
THE MASTER OF THE HIGH COURT, CAPE TOWN Fourteenth Respondent
Neutral citation: MA V[...] + 11 others vs E V[...] + 7 others (Case no 8692/2020
[2026] ZAWCHC … (14-04-2026)
Coram: WELGEMOED AJ
Heard: 25 March 2026
Delivered: 14 April 2026
Summary: Application for security for costs. Discretionary measure on
circumspectus of the entire matter.
ORDER
___________________________________________________________________
The application for security for costs by the First to Twelfth Applicants be dismissed
with costs; and
The counter application of Mrs V[...] that Mr V[...] must pay the security for costs in
his personal capacity is granted.
JUDGMENT
____________________________________________________________________
WELGEMOED, AJ:
Introduction
[1] This is an application where the Applicants seek security for their costs in a
joinder application brought by the Respondent. The Applicants seek security in the
amount of R350 000.00.
[2] The Respondent, Mrs V[...], seeks to join the Applicants to the divorce
proceedings pending between herself and her husband, Mr V[...], under case
number 8692/2020. The Respondent has opposed the application and has instituted
a counter application against Mr V[...] wherein she seeks an order that, to the extent
that she is ordered to provide such security, that Mr V[...] be ordered to make the
payment thereof in his personal capacity.
Background to the application
[3] M[...] A[...] V[...] and the respondent (E[...] V[...]), have a long litigious history
backdating to July 2020. They are married out of community of property and Mrs
V[...] claims for redistribution of assets in terms of section 7(3) of the Divorce Act and
maintenance.
[4] As part of the pending divorce proceedings, Mrs V[...] instituted an application
to join the Le Chasseur Trust, the MV Familietrust and the V[...] Beleggingstrust
(collectively “the trusts”) and Eilandia Plase, Koorhaanhoogte and Koorhaanhoogte
Eiendomme (collectively “the companies”) to the divorce proceedings (“the joinder
application”). She alleges that the value of the trusts and companies should be
included in her claim in terms of Section 7(3) of the Divorce Act. Mr V[...] is a
beneficiary and trustee of the trusts and a director of the companies. The joinder
application has not been heard yet, a date of hearing can only be issued once the
security of costs has been resolved.
Summary of Applicants submissions
[5] The Applicants seek security in the sum of R350 0000. The basis for the
application is provided as follows:
(a) the Respondent is an unrehabilitated insolvent, and the Applicants
believe she will be unable to pay their costs if the Applicants are
successful in their opposition to the joinder application. The
Respondent was finally sequestrated by this Court in April 2023;
(b) the joinder application is vexatious and/or reckless and/or amounts to
an abuse of the process of the court because:
i. the Respondent admits in her application that she does not
seek relief from all of the parties to be joined but that she
seeks such relief as they have a ‘substantial interest’ in the
‘outcome’ of the matter;
ii. in 2022, the Respondent instituted a joinder application
against all of the applicants , which she did not pursue, and
withdrew without any tender for costs. The Applicants aver
that she did not tender costs due to her inability to do so;
and
iii. the Respondent has not attached a particulars of claim to
the joinder application thus failing to define the relief she
will be seeking against the applicants in her application.
(c) Further the Applicants argue that the Respondent has no prospect of
success because:
i. aspects of the relief she seeks is bad in law and no claim in
law or fact exists for such relief; to the extent that the relief
she seeks is available to her;
ii. she fails to make the allegations necessary to sustain the
claims against the Applicants.
iii. The relief sought against the trusts and companies is
mutually exclusive.
Point in limine
[6] The Applicant’s aver that the Respondent has no locus standi to bring the
joinder application on the basis that the claims against the trust and companies
cannot be seen as proceedings which relate to her status and does not affect her
estate or in respect of any claim due to or against her (Section 23(6) of the
Insolvency Act). They further allege that the Respondent’s trustee, who should have
instituted the joinder application in her stead, lacked knowledge of the application
and did not consent thereto.
Summary of Respondents submissions
[7] The Respondent opposes the application for security for costs on the following
basis:
(d) It may infringe the Respondent's right to litigate in terms of Section 34
of the Constitution. They aver that because an order for security for
costs is an exceptional, discretionary remedy , the court must
therefore exercise its discretion with heightened care as the order will
in practice be a denial of access to the courts, as the respondent is
impoverished.
(e) Abuse of court process: the Respondent argues that Mr. V[...] is not a
credible litigant as the application for security for costs is one of the
many strategies (others being non -disclosure, contempt of court
orders and procedural obstruction) the Applicant has employed to
derail the joinder application and financially incapacitate Mrs. V[...].
(f) The requirements set out in Fusion Properties 233 CC v Stellenbosch
Municipality1 are not met as to justify the exceptional remedy of
security of costs.
(g) The deponent (an employee of one of the entities) lacks locus standi
to bring application for security on behalf of all the applicants.
With regard to the Respondent’s sequestration:
(h) They aver that the Respondent falls squarely into the requirements of
Section 23(6) of the Insolvency Act as matrimonial litigation including
incidental litigation such as joinder of entities alleged to be the alter
ego of a spouse concerns her status or personal rights.
(i) The Respondent argues that her sequestration is a direct result of Mr
1 2021 ZASCA 10.
V[...]’s conduct by withholding maintenance, defying Rule 43 Orders,
which prevented her from being able to pay the account of forensic
investigators engaged to investigate his financial affairs. This debt
triggered her sequestration.
Relief sought
[8] Both parties seek security for costs as envisaged in Rule 47 of the Uniform
Rules of Court.
The law
[9] An application for security for costs is not a routine procedural step. It is an
exceptional remedy that must be invoked with precision supported by clear factual
and legal grounds and exercised with judicial restraint.
[10] Its purpose is to protect the litigant from the risk of being unable to recover
costs from an opposing party who is impecunious and who litigates vexatiously. It is
not a mechanism to obstruct access to court or to delay the adjudication of
substantive claims.
[11] The legal framework governing security for costs is found in Rule 47 of the
Uniform Rules of Court. Rule 47(1) requires that a party seeking security must first
deliver a notice setting out the grounds upon which security is claimed. Rule 47(3)
provides that if the party from whom security is demanded fails to furnish it or to
respond within the prescribed time, the applicant may apply to court for an order
compelling the furnishing of such security.
[12] However, the mere delivery of a notice does not entitle the applicant to relief.
The court must be satisfied that the applicant is bona fide, procedurally compliant
and substantively justified.
[13] Courts have a clear discretion to deny security for costs where it is used to
oppress or delay proceedings (Erasmus Superior Court Practice D1/474). It is the
contention of Mrs V[...] that the Applicants have not demonstrated any risk of
prejudice. Instead, according to her, the Applicants have invoked Rule 47 tactically
after failing to answer the joining application. Mrs V[...] submits that the effect of the
application is not to protect legitimate interests but to paralyse the litigation and
shield Mr V[...]’s financial affairs from scrutiny.
[14] The court’s discretion must be exercised to refuse security both to prevent
oppression of a vulnerable litigant and to ensure that Rule 47 is not weaponised as a
tool of delay. Mrs V[...] submits that to grant security in these circumstances would
be to sanction procedural abuse and undermine the constitutional guarantee of
access to courts under Section 34 of the Constitution.
[15] The discretion to grant security must be exercised judicially with due regard to
the specific circumstances of a case.
Case law
[16] In the matter of Fusion Properties 233 CC v Stellenbosch Municipality,2 the
Supreme Court of Appeal reaffirmed the principles:
(j) A court retains an unfettered discretion in deciding whether to order
security.
(k) The court must balance in the potential injustice to a plaintiff if
prevented from pursuing a legitimate claim against the injustice to a
defendant who successfully defends but cannot recover costs.
(l) The purpose of security is to deter vexatious or reckless litigation, not
to stifle genuine claims.
(m) Security for costs must not be used to shut the courthouse door to
bona fide litigants.
[17] These principles are reinforced by Shepstone & Wiley v Geyser.3 In this matter,
the SCA held that good prospects of success may outweigh impecuniosity. In
essence, the Applicants’ application for security for costs involves the application of
the court’s discretion on the following points, in that:
(n) the Respondent is an unrehabilitated insolvent;
(o) the joinder application is vexatious and reckless and amounts to an
2 2021 ZASCA 10.
3 1998 (3) SA 1036 (SCA).
abuse of the court’s process;
(p) the respondent has no prospects of success in the joinder
application; and
(q) the Applicants aver that the Respondent has no locus standi to bring
the joinder application.
[18] In the exercise of my discretion, I find that there are no merits in the Applicants’
submissions.
Finding
[19] I hereby dismiss the Applicants’ application for security for costs against Mrs
V[...] and find that Mr V[...] must provide security for costs in his personal capacity.
Order
[20] It is hereby ordered that:
(r) the application for security for costs by the First to Twelfth Applicants
be dismissed with costs; and
(s) the counter application of Mrs V[...] that Mr V[...] must pay the
security for costs in his personal capacity is granted.
Costs
I consider the cost order against the protracted litigation as a whole. There is little
doubt in my mind that it is a tactical, obstructive manoeuvre in order to close the
doors of the court to Mrs V[...]. Various spurious allegations are made. There can
be no doubt that the Applicants need to be part of the proceedings and joined to the
final divorce action.
An organigram of the Trusts and Companies clearly shows that Mr V[...] has a direct
interest in all the Applicants. The veil must be pierced, and Mrs V[...] has a right to
have insight into the financial realities in the various Applicants.
I accordingly dismiss the application for costs and uphold the counter application.
Further, that Mr V[...] pay the costs on an attorney and client basis under Scale B.
______________________
D WELGEMOED
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the Applicant : Adv. HJ Loots SC
Adv. L Bezuidenhout
For the Respondent : Adv. R Ferreira