Mahon v Mahon

• Jurisdiction: South Africa
• Judge: Davis J
• Judgment Date: 21 December 2008
• Docket Number: 14918/2008
• Hearing Date: 21 November 2008
• Court: Cape Provincial Division

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.

2009 JDR 0036 p2

Davis J

[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, 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.

2009 JDR 0036 p3

Davis J

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 will 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...