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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2025-115702
In the matter between:
G[...] C[...] Applicant
and
V[...] C[...] Respondent
In re:
V[...] C[...] Applicant
G[...] C[...] First Respondent
P[...] SECURITY GROUP (PTY) LTD Second Respondent
STANDARD BANK OF SOUTH AFRICA Third Respondent
NEDBANK SOUTH AFRICA Fourth Respondent
STEIN AUDITORS Fifth Respondent
This judgment is handed down by the Judge whose name is reflected herein, and is
submitted electronically to the parties or their legal representatives by email. It is
further uploaded to the electronic file of this matter on CaseLines. The date of hand -
down is deemed to be 10 September 2026.
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
_________________
GARVEY AJ 10 SEPTEMBER 2026
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___________________________________________________________________
ORDER
1. The late delivery of the respondent's answering affidavit in this application is
condoned.
2. The application by the applicant for an order that the respondent furnish
security for his costs in the main application under this case number, and for
an order staying the main application, is dismissed.
3. The prayer that the applicant's founding affidavit in this application serve as
his answering affidavit in the main application is refused.
4. The applicant must deliver his answering affidavit , if any, in the main
application within 15 days of the date of this order.
5. The applicant must pay the respondent's costs of this application on the scale
as between attorney and client, such costs to include the costs of two counsel
where so employed.
JUDGMENT
GARVEY AJ
Introduction
[1] The applicant, Mr G[...] C[...], asks that the respondent, Ms V[...] C[...], his
former wife, be ordered to furnish security for his costs in a pending application
in this court ( “the main application” ). He asks for security of R 950 000,
alternatively an amount to be fixed by the Registrar, and for the main
application to be stayed until the security is given. The application is brought
under rule 47(3) of the Uniform Rules of Court. It is opposed.
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[2] The respondent is the applicant in the main application. Mr C[...] is the first
respondent in it. To avoid confusion, I refer to the parties as they are cited in
this application. Mr C[...] is the applicant, and Ms C[...] is the respondent.
[3] The applicant asks for two further orders. First, that his time to deliver an
answering affidavit in the main application be extended under rule 27(3) until
15 days after the respondent furnishes security. Second, that if the stay is
refused, his founding affidavit in this application " shall serve as his Answering
Affidavit in the Main Application". He asks for costs on the attorney and client
scale, including the costs of two counsel on scale C.
[4] The respondent asks that the application be dismissed with costs on the
attorney and client scale, including the costs of two counsel. She says the
application is not a genuine attempt to secure a costs award. She says it is
the latest step in a strategy, announced by the applicant himself years ago, to
exhaust her financially and to prevent the determination of her claims under
an order of this court.
[5] For the reasons that follow, I agree. The application fails on every ground
advanced. It is, moreover, itself an abuse of the process of this court. That
conclusion determines the costs order.
Only one application is before the court
[6] P[...] Security Group (Pty) Ltd ( P[...]), the second respondent in the main
application, delivered its own rule 47 application against the respondent on 1
September 2025. It seeks security of R 500 000. The two security applications
travelled together on the papers, and the respondent answered both in a
single affidavit.
[7] They are, however, separate applications, and they were separately enrolled.
On 3 June 2026 the Honourable Acting Deputy Judge President, Modiba
ADJP, issued a directive under this case number. The directive records that
the applicant's security application is enrolled for 8 June 2026, that P[...]'s
the applicant's security application is enrolled for 8 June 2026, that P[...]'s
security application is enrolled for 5 October 2026, that "[t]he Court is seized,
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on that date, only with the First Respondent's application", and that there is to
be no consolidation or simultaneous hearing of the two applications.
[8] The matter came before me on 8 June 2026 accordingly. As directed, the
hearing proceeded solely in respect of the applicant's application for security.
This judgment decides only that application. P[...]'s application stands enrolled
for 5 October 2026, as directed, and nothing said here decides any issue in it.
Background
[9] The parties married in 1996, out of community of property. The respondent
worked in the family security business, the P[...] group, from 1993. From June
2003 she held half the shares in G[...] Properties (JHB) (Pty) Ltd (“ G[...]
Properties”), the holding company of P[...] . In February 2020 the parties
transferred the shares they still held in P[...] itself to G[...] Properties. The
respondent's employment was terminated in November 2020. The marriage
then ended in divorce.
[10] On 6 October 2021 Marston AJ, by agreement between the parties, made a
settlement agreement an order of court ( “the divorce order ”). Three of its
terms matter here.
[11] First, clause 1.8 records a "present agreed indebtedness" to the respondent of
R 12 665 593 " in respect of the Applicant's shareholding in G[...] Properties
JHB (Pty) Ltd and in the P[...] groups of companies". That sum was paid. It
was, in the words of the clause, an agreed indebtedness " save for the
determination referred to hereinafter".
[12] Second, clause 2.9 creates that determination. Each party was to appoint an
independent accountant to value the loan accounts and shares in the P[...]
group. If the accountants disagreed, the dispute was to be referred to
mediation or arbitration before one of three named retired judges. Clause
2.9.2.3 provides that, if the determined amount exceeds R 12 665 593, the
balance must be paid to the respondent.
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[13] Third, clauses 1.10 to 1.12 disposed of earlier litigation between the parties.
The applicant was to release the respondent from any obligation to pay the
costs of a review application she had brought in 2021 against him, two co-
directors and P[...], and to procure that the others waived their costs claims as
well. Clause 2.10 obliges the applicant to maintain the parties' daughter,
including all costs associated with her education in the United Kingdom.
The telephone transcript
[14] The respondent annexed to her founding affidavit in the main application a
transcript of a telephone call between the parties before the settlement. The
applicant does not dispute that the call took place or that the words attributed
to him were spoken. Two passages matter. In the first, in answer to the
respondent's remark that the parties could go and spend another million rand
on legal fees and get nowhere, the applicant said:
"Now to answer that statement of yours, about we can waste another million, I
have got it to waste, you have not, I will deplete whatever money you have
got, if I have to fight you for the next six years."
[15] The respondent's immediate answer, on the transcript, was: " No, please do
not start . . . negotiation by threatening me". In the second passage the
applicant said:
"Because eventually you will run out of money . . . And then I will just carry on
until you say, well this, this and this and we will come to some form of a
settlement and you will not have any pension money left, I am telling you,
V[...]."
[16] In his founding affidavit in this application the applicant says the transcript is
quoted "selectively, out of context and in attempt to deceive", and that he " did
not intend to financially ruin the Respondent, she intended to ruin me". The
passage he himself puts up as giving " a more balanced view" includes, in full,
the first threat quoted above. I return to the significance of these passages
below.
The arbitration and the dividend
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[17] The valuation dispute under clause 2.9 went to arbitration before the retired
Judge Joffe. His appointment was confirmed on 5 April 2022. A preliminary
point about the arbitrator's jurisdiction was argued on 19 July 2023 and
decided against the respondent, with costs, in an award published in
September 2023. No evidence on the merits has ever been led.
[18] The hearing of 19 July 2023 matters for another reason. During argument the
applicant's then counsel told the arbitrator, on instructions, that a dividend of R
10 741 834 had been paid by P[...] to G[...] Properties before 6 October 2021,
that is, before the divorce order, and that it had not previously been disclosed:
"That dividend, I'm instructed Judge, was paid pre-the sixth of October 2021.
So, he only . . . so between the time that he did his initial report, which was
not disclosed, and the report to the arbitration, that dividend was done. For
10.7 million rand."
[19] The dividend also appears in the report of the applicant's own valuation
expert. The respondent's case is that she knew nothing of it when she settled,
that she held a half interest in G[...] Properties when it was paid, and that its
effect was to move value out of the company being valued for her payout.
Whether that case is good is not before me. What matters for present
purposes is that the dividend is not her invention. It is recorded in the
applicant's expert's report and was confirmed by his own counsel.
[20] The arbitration then stalled. The applicant's attorneys withdrew in November
2023. New attorneys took over early in 2024. In March 2024 the
respondent's attorney asked that the arbitration be stayed pending a High
Court application about the alleged fraud. N o objection was raised. In July
2024 the applicant's new attorneys declined to answer questions directed at a
joint meeting of the experts, writing that "[w] e will not be responding to your
questions - we have no duty to do so". In September 2024 the arbitrator
questions - we have no duty to do so". In September 2024 the arbitrator
recorded that it appeared "that the arbitration before me will not continue" and
asked whether he could dispose of his files.
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[21] In March 2025 the respondent's attorneys asked for a further pre- arbitration
meeting to get the arbitration moving. In early April 2025 she caused
subpoenas to be issued against P[...] , two banks and the auditors for the
financial records underlying the valuation. At the pre- arbitration meeting on 8
April 2025 the applicant's legal team raised, for the first time, section 23 of the
Arbitration Act 42 of 1965. They contended that, because no award had been
made within four months, the arbitrator's mandate had lapsed. On 22 April
2025 the applicant's attorney wrote that the arbitration was terminated at the
applicant's instance. On 23 April 2025 the arbitrator declined to decide the
dispute on correspondence and left the parties " to take such steps as they
may be advised . . . to protect their rights".
The main application
[22] On 17 July 2025 the respondent launched the main application against the
applicant, P[...], Standard Bank, Nedbank and Stein Auditors. Part A claims
payment of R 5 370 917, being half of the dividend, from the applicant and
P[...], production of the subpoenaed documents , and the exchange of expert
reports and a joint minute. Part B claims payment of whatever balance that
process shows to be due to her above the R 12 665 593 already paid.
[23] On 8 December 2025 the respondent delivered a notice of motion, supported
by a supplementary affidavit, for leave to amend the main notice of motion.
The proposed amendment adds alternative relief. An extension, under section
23 of the Arbitration Ac t, of the time for making an award in the arbitration,
alternatively a declaration that section 23 is no impediment to its completion.
Her stated purpose is that, if her claims cannot be decided on motion, they be
decided in the arbitration.
This application
[24] The applicant did not deliver an answering affidavit in the main application.
Instead, on 6 August 2025, he delivered a notice under rule 47(1) demanding
Instead, on 6 August 2025, he delivered a notice under rule 47(1) demanding
security of R 950 000 within 10 days. The grounds were that the respondent is
a peregrinus who owns no unmortgaged immovable property in the Republic,
and that the main application is vexatious, reckless and an abuse of the
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process of court. The respondent disputed her liability to give security on 20
August 2025. This application followed on 26 August 2025.
[25] The respondent's answering affidavit was delivered on 21 October 2025,
about 14 court days late. The applicant delivered a replying affidavit on 4
November 2025. Heads of argument were exchanged. This application was
heard on 8 June 2026. The applicant's answering affidavit in the main
application remains outstanding, now some 10 months after his opposition
was noted.
The issues
[26] Four issues arise:
[26.1] condonation of the late answering affidavit;
[26.2] whether security should be ordered on the ground that the
respondent is a peregrinus;
[26.3] whether security should be ordered on the ground that the main
application is vexatious, reckless or an abuse of the process of court;
and
[26.4] costs, including the scale.
Condonation
[27] The answering affidavit was 14 court days late. The respondent explains that
two interlocutory postponement applications arrived in the last week of
September 2025, and that her senior counsel was seriously ill. She says the
delay caused no prejudice. The applicant opposed condonation in his replying
affidavit, criticising the explanation as bald. His heads of argument did not
press the point.
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[28] The explanation could have carried more detail , but the delay was short. No
hearing date was lost. No real prejudice is identified, a nd the applicant,
whose own answering affidavit in the main application has been outstanding
since August 2025, is not well placed to demand strict compliance with the
rules from his opponent. Condonation in the circumstances is granted.
The legal framework
[29] Rule 47 deals with procedure only. It regulates how security is demanded,
fixed and enforced. It does not say when a litigant is entitled to security. That
question is answered by the common law. (See Boost Sports Africa (Pty) Ltd v
South African Breweries (Pty) Ltd 2015 (5) SA 38 (SCA) at para 5). The onus
is on the party seeking security to persuade the court that security should be
ordered. (See Boost Sports Africa supra at para 14).
[30] Where the claimant is a peregrinus , that is a person neither domiciled nor
resident within the Republic, the court may order security. But there is no right
to security as of course. The court has a discretion. It must be exercised on
the particular circumstances of the case and on considerations of equity and
fairness to both parties. (See Magida v Minister of Police 1987 (1) SA 1 (A) at
14D-F).
[31] Where the claimant is an incola , inability to satisfy a costs order is not, on its
own, a ground for security. Something more is required. (See Ramsamy NO v
Maarman NO 2002 (6) SA 159 (C) at 172I -173A). In Boost Sports Africa
supra the Supreme Court of Appeal held that there is no basis for
distinguishing between an incola company and an incola natural person, and
stated at paragraph 16:
"Accordingly, even though there may be poor prospects of recovering costs, a
court, in its discretion should only order the furnishing of security for such
costs by an incola company if it is satisfied that the contemplated main action
(or application) is vexatious or reckless or otherwise amounts to an abuse."
(or application) is vexatious or reckless or otherwise amounts to an abuse."
[32] "Vexatious" has a settled meaning:
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"In its legal sense 'vexatious' means 'frivolous, improper: instituted without
sufficient ground, to serve solely as an annoyance to the defendant' . . .
'abuse' connotes a mis -use, an improper use, a use mala fide, a use for an
ulterior motive."
(See Fisheries Development Corporation of SA Ltd v Jorgensen 1979 (3) SA
1331 (W) at 1339E-F, quoted with approval in Boost Sports Africa supra at
para 17).
[33] An action is vexatious and an abuse of process if it is obviously unsustainable,
and this " must appear as a certainty, and not merely on a preponderance of
probability". (See African Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA 555 (A) at 565D-E). In a security application the merits threshold
is somewhat less stringent than in an application to stop the litigation outright.
(See Fitchet v Fitchet 1987 (1) SA 450 (E) at 454E -G; Boost Sports Africa
supra at para 18) . But the court does not attempt to resolve the dispute
between the parties. That would frustrate the purpose for which security is
sought. (See Zietsman v Electronic Media Network Ltd 2008 (4) SA 1 (SCA)
at para 21).
[34] Abuse of process, in general terms, " takes place where the procedures
permitted by the rules of the court to facilitate the pursuit of the truth are used
for a purpose extraneous to that objective". (See Beinash v Wixley 1997 (3)
SA 721 (SCA) at 734F- G). When a court finds an attempt to use, for ulterior
purposes, machinery devised for the better administration of justice, it is the
duty of the court to prevent the abuse. (See Hudson v Hudson 1927 AD 259
at 268). The power to order security against an incola flows from this inherent
jurisdiction, and it is exercised sparingly. (See Ecker v Dean 1938 AD 102 at
111; Western Assurance Co v Caldwell's Trustee 1918 AD 262 at 274).
[35] Finally, an order for security engages section 34 of the Constitution. It can
shut a claimant out of court. The court must therefore balance the potential
shut a claimant out of court. The court must therefore balance the potential
injustice to a claimant who is prevented from pursuing a legitimate claim
against the potential injustice to a defendant who succeeds but cannot
recover costs. (See Giddey NO v J C Barnard and Partners 2007 (5) SA 525
(CC) at para 8). Ability to pay is a relevant factor, but it is not the central
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consideration. (See Cape Cash and Carry (Pty) Ltd v Xtreme Works (Pty) Ltd
2025 (4) SA 156 (WCC) at paras 17- 18, on which the applicant's counsel
relied).
Is the respondent a peregrinus?
[36] Domicile or residence of a permanent or settled nature is sufficient to make a
litigant an incola. Either will do. (See Protea Assurance Co Ltd v
Januszkiewicz 1989 (4) SA 292 (W) at 294F).
[37] The applicant says the respondent is a peregrinus. She lives in Clevedon,
England, with her husband, a British citizen. She works in the Bristol area as a
bookkeeper. She and her husband own a United Kingdom company. A deeds
office search shows no immovable property registered in her name in the
Republic. In reply the applicant calculated that, between June 2023 and
September 2025, she was within South Africa for 57 out of 808 days ,
constituting 7% of the time.
[38] The respondent says she is not. She is a South African citizen and holds only
a South African passport. She lives in the United Kingdom on a spousal visa
which expires on 22 March 2028. If it is not renewed, she must return. British
citizenship, if it ever comes, is years away. She has returned to South Africa
six times in just over two years, with a seventh visit booked. Her mother and
15 other close family members live here. She uses South African doctors,
banks and a South African cellphone number, and receives her revenue
correspondence here. In her words: "I still consider South Africa as home and
not the UK. If anything, I am a peregrinus in the UK."
[39] There is force on both sides. Settled physical residence abroad points to
peregrinus status. A conditional and temporary right of residence, retained
citizenship and deep personal ties point the other way. I find it unnecessary to
decide the question. I will assume, in the applicant's favour and without
deciding, that the respondent is a peregrinus . Even on that assumption, the
application fails.
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No case for security, even on the assumption
[40] The peregrinus practice is protective. Its aim is to ensure that a successful
incola is not left holding a costs order that cannot be enforced because the
claimant and her assets are beyond reach. The enquiry is practical , posing
the question of whether there a real risk that a costs order will be
unenforceable. The absence of registered immovable property is not, by
itself, the test.
[41] The applicant's own evidence answers that enquiry against him. His founding
affidavit states:
"I have no idea of the Respondent's financial means, but what I am certain of
is that it is clear that the Respondent does not own any property within the
Republic of South Africa and has divested whatever assets she may have
had from the Republic."
[42] The passage refutes itself. A deponent who has " no idea" of his opponent's
means cannot, in the same sentence, be " certain" that she has divested her
assets. No fact is offered in support of the divestment allegation. It is
speculation, sworn as certainty.
[43] Against this stands the respondent's evidence of assets within the Republic . A
34% shareholding in Vianca Developments (Pty) Ltd, which owns,
unmortgaged, the Benoni property at which she stays when in the Republic, a
living annuity with Stanlib, an Investec investment , and Stanlib unit trusts.
She received approximately R 12 600 000 under the divorce order and R 6
700 000 from the sale of the former matrimonial home. She offered to place
the supporting documents before the court in chambers, while declining to
hand them to the applicant in the light of his conduct towards her. I declined
the offer.
[44] The applicant attacks this evidence as undocumented, and there is some
substance in the criticism. The shareholding is a minority one. The
investment values are not disclosed. But the criticism forgets where the onus
lies. It was for the applicant to show a real risk that a costs order of about R
13
950 000 would go unsatisfied. He showed only that the respondent owns no
immovable property in her own name. For the rest, he concedes that he
knows nothing. That is not a discharge of the onus. It is an invitation to
guess.
[45] Two further considerations put the matter beyond doubt.
[46] The first is timing. The respondent has lived in the United Kingdom, to the
applicant's knowledge, since January 2023. The divorce order itself obliges
him to fund their daughter's education there. Through more than two years of
arbitration, including a contested preliminary point, an award, and prolonged
correspondence, he never asked her for security. The demand came on 6
August 2025, three weeks after the respondent issued the main application in
this court. It does not respond to any change in her circumstances. It
responds to her claim.
[47] The second is the applicant's own recorded words. A discretion exercised on
considerations of equity and fairness to both parties cannot ignore that the
applicant told the respondent that he had money " to waste", that she had not,
and that he would deplete whatever money she had if he had to fight her for
six years. Security for costs is a shield against an unrecoverable costs order.
It is not a weapon by which the wealthier party makes good a threat of
attrition. The equities lie wholly against the applicant.
[48] Even if the respondent is a peregrinus, therefore, I would refuse security in the
exercise of the discretion. The first ground fails.
Is the main application vexatious, reckless or an abuse?
[49] The applicant's second ground is that the main application is vexatious,
reckless and an abuse of the process of court. Three complaints are
advanced.
[50] The first concerns standing. The respondent ceased to be a registered
shareholder of P[...] in February 2020, when the parties' shares in it were
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transferred to G[...] Properties, as her own affidavit in the 2021 review
proceedings records. The dividend was paid by P[...] to G[...] Properties. A
shareholder of a holding company, the argument runs, has no direct claim to a
subsidiary's dividend , and G[...] Properties is not a party to the main
application. Her claim to half the dividend is said to be an absurdity.
[51] The second is procedural. Prayer 2 of Part A asks the court to enforce
subpoenas issued in the arbitration. The arbitration, on the applicant's case,
has terminated, and, he contends, a subpoena mechanism cannot be
transplanted into motion proceedings to achieve discovery.
[52] The third is that the relief, including a statement and debatement, is
incompetent on motion because material disputes of fact are foreseeable.
[53] These are defences. Some of them appear substantial. The corporate-
structure point, in particular, may present the respondent with a real difficulty
in the main application, as may the objections to the subpoena relief. But the
question on this application is not whether the applicant has arguable
defences, or even strong ones. It is whether the main application is obviously
unsustainable, as a certainty , that p roceedings so hopeless or so improper
that they can only have been brought to vex. That is a high threshold. It is not
met.
[54] The main application is anchored in an order of this court. The divorce order
has never been appealed, varied or set aside. It records that the R 12 665 593
was paid save for the determination referred to in it, and it promises the
respondent a determination of the true value of her shareholding, with
payment of any excess. That determination has never taken place. The
arbitration in which it was to occur ended, at the applicant's own instance,
without any hearing on the merits. A litigant who then approaches the court
that made the order, asking for the promised determination and for half of a
that made the order, asking for the promised determination and for half of a
documented dividend disclosed by her opponent's own counsel, is not
litigating frivolously or solely to annoy.
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[55] Whether the dividend claim survives the corporate- structure defence, whether
the subpoena prayers are competent, and whether the valuation dispute
belongs on motion, in an action, or back in the arbitration, are questions for
the court that hears the main application. A security application is not the
place to decide them.
[56] The applicant also relied on the removal of the main application from the
unopposed roll on 20 October 2025, with costs on the attorney and client
scale. That order punished a procedural misstep, and it stands. It says
nothing about whether the main application itself is sustainable, n or does the
applicant's assertion that the respondent has " a history of bringing court
processes, only to abandon them ". Not one such process is identified. The
only candidate mentioned anywhere in his papers is the 2021 review
application, being litigation that was settled in the divorce order, in which the
applicant released the respondent from its costs. A costs release he gave in
2021 cannot be raised in 2025 as evidence of a litigation history.
[57] Moreover, t he applicant asks the court to find, as a certainty, that the
respondent's claims are hopeless , while declining to deliver an answering
affidavit dealing with them. He seeks findings on the merits without
committing himself to a version on the merits. The second ground fails.
This application is itself an abuse of the court's process
[58] It remains to deal with the respondent's contention that this application is itself
an abuse of the process of court. In my view that contention is plainly right. It
is the cumulative effect of the features of the application, in the circumstances
and context of this matter, that compels the conclusion.
[59] First, the threat and its execution. The applicant is on record telling the
respondent, when the litigation between them began, that he had money to
waste and she had not , that he would deplete whatever money she had, if he
waste and she had not , that he would deplete whatever money she had, if he
had to fight her for six years , and that eventually she would have no pension
money left. He does not deny the words. This application demands R 950
000 from the respondent as the price of continuing her claim, with an
16
indefinite stay if she cannot pay. It is the recorded threat, translated into a
court process.
[60] Second, the architecture of the relief. Security is coupled with a stay of the
main application. The stay is coupled with an extension of the applicant's time
to answer until after payment. F ailing a stay, the applicant asks that his
founding affidavit in this application, which does not answer the merits of the
main application, serve as his answering affidavit. The design is transparent.
If the application succeeds, the main application stops until the respondent
pays. If it fails, the applicant claims to have answered without ever engaging
the merits. Either way, the determination promised by the divorce order is
deferred. Rule 47 exists to protect litigants, not to arrest litigation.
[61] Third, the quantum. The demand is for R 950 000. The draft bill of costs said
to support it totals R 941 144.50. More seriously, the bill is not confined to the
costs of defending the main application. It includes the costs of this security
application itself, of a striking-out application the applicant says he intends to
bring, and of a contemplated application to refer the main application to oral
evidence. Each item is staffed with senior and junior counsel, with senior
counsel's full set of fees counted twice. Security was demanded, in advance,
for interlocutory applications of the applicant's own contemplation. The
respondent describes the figure as "a 'thumb suck' calculated to terrorise me".
The description is blunt, but it is closer to the mark than the bill. It may be
added that the applicant claimed the costs of two counsel on scale C
throughout, while briefing one junior counsel.
[62] Fourth, the evidence. The financial case rests on the self -refuting paragraph
quoted above, where the applicant professed ignorance of the respondent's
means, sworn in the same breath as certainty that she has divested her
means, sworn in the same breath as certainty that she has divested her
assets. The litigation- history allegation is made without a single instance.
These are not the hallmarks of a genuine apprehension about the recovery of
costs. They are the hallmarks of a case constructed to fit a predetermined
end.
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[63] Fifth, the timing already described, demonstrating no demand for security
through more than two years of arbitration, and a demand within three weeks
of the respondent invoking the jurisdiction of this court under the divorce
order.
[64] An abuse of process takes place where procedures permitted by the rules to
facilitate the pursuit of the truth are used for a purpose extraneous to that
objective. That is this case. The purpose of this application was not to protect
the applicant against an unrecoverable costs order. Its purpose was to halt
the respondent's claim, escalate her costs and wear her down, being the
strategy the applicant announced in the recorded call. I find that the
application is a clear abuse of the process of this court. It is the duty of the
court to prevent such abuse and, where it has already occurred, to mark it.
The remaining prayers
[65] The stay falls with the claim for security. The prayer that the applicant's
founding affidavit in this application stand as his answering affidavit in the
main application is refused. That affidavit does not answer the founding
papers in the main application, and the order sought would leave the
respondent's case effectively unanswered while appearing to close the
papers. I will therefore allow the applicant a fixed period within which to deliver
an answering affidavit, if he so chooses.
Costs
[66] Costs follow the result. T he respondent asks for costs on the attorney and
client scale, including the costs of two counsel. The applicant sought the same
scale against her.
[67] An award of attorney and client costs is exceptional. It requires special
considerations, and Courts grant such an award to mark their disapproval of
vexatious conduct and of conduct that amounts to an abuse of the process of
court. It may also be granted where proceedings are vexatious in their effect,
because they put the other side to trouble and expense which it ought not to
bear, even where the intent was not vexatious.
18
[68] I have found that this application is a clear abuse of the court's process. It
was brought in execution of a recorded threat of financial attrition. It was
supported by speculation sworn as certainty. It was inflated in amount , and it
was coupled with machinery designed to stall the main application indefinitely
while the applicant withheld his answer. On either approach, improper
purpose, or vexatious effect , the threshold for a punitive order is met. The
respondent should not be left out of pocket for having had to resist it.
[69] The costs of two counsel are also justified. The respondent briefed senior and
junior counsel. The record is voluminous, the history of the litigation is
intricate, and the stakes , being the respondent's access to court on a claim
under an order of this court , are high. The applicant himself prayed for the
costs of two counsel.
Order
[70] The following order is made:
1. The late delivery of the respondent's answering affidavit in this
application is condoned.
2. The application by the applicant for an order that the respondent
furnish security for his costs in the main application under this case
number, and for an order staying the main application, is dismissed.
3. The prayer that the applicant's founding affidavit in this application
serve as his answering affidavit in the main application is refused.
4. The applicant must deliver his answering affidavit , if any, in the main
application within 15 days of the date of this order.
5. The applicant must pay the respondent's costs of this application on
the scale as between attorney and client, such costs to include the
costs of two counsel where so employed.
19
________________________
C B GARVEY
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION
JOHANNESBURG
Date of hearing: 8 June 2026
Date of judgment: 10 September 2026
For the Applicant: Adv D Mahon SC
Adv MM Van Staden
Instructed by Van Zyl Johnson Attorneys Inc.
For the Respondents: Adv N Redman SC
Adv S Martin
Instructed by Ramsay Webber Inc.