Cochran v Miller

• Jurisdiction: South Africa
• Judge: Henning J
• Judgment Date: 04 September 1964
• Hearing Date: 04 September 1964
• Court: Durban and Coast Local Division

D Henning, J.:

On 14th August, 1964, the respondent in the present application made an ex parte application, as a result of which my Brother CANEY granted an order for the issue of a writ to arrest the applicant for the purpose of founding jurisdiction in an action to be instituted by the respondent against the applicant for payment of E damages in the sum of R4,000, which the respondent claimed he suffered through adultery committed with his wife by the applicant, the order further providing that the applicant is to be released upon his finding security to the satisfaction of the Deputy Sheriff for the payment to the applicant of the sum of R4,000. In consequence of that order, which was executed by the Deputy Sheriff, the applicant duly found the security.

F In the present application he seeks an order setting aside the order for the attachment of his person and a refund of the amount of R4,000 lodged as security and also an order that the respondent pay the costs of this application, as well as of the first one. In the alternative, he G asks that the amount of security be reduced to R1,000 and that the sum of R3,000 be refunded to him. At the commencement of the hearing to-day, counsel informed me that the parties have agreed that if the order for the applicant's arrest is not set aside, the amount of the security should be reduced to the sum of R1,500 and that the balance lodged by the applicant should be refunded to him.

H The papers before the Court are voluminous, but, in reality, for the purpose of deciding the merits of the application, a relatively small portion thereof is material.

[The learned Judge then analysed the case for the respondent and proceeded.]

It is common cause that the burden of proof in this matter rests upon the respondent, but counsel are not agreed as to the degree of proof required. Mr. Milne has suggested that the degree of proof is the same as in cases where an application is made for the granting of a

Henning J

temporary interdict, while Mr. Didcott has submitted that the degree of proof is much less. The question was comprehensively considered by STEYN, J. (as he then was), in Bradbury Gretorex Co. (Colonial) Ltd v Standard Trading Co. (Pty.) Ltd., 1953 (3) SA 529 (T), in which the learned Judge said, at p. 533 D.

'The authorities in consideration to which I have referred seem to A justify the conclusion that the requirement of a prima facie cause of action, in relation to an...