Alam v Minister of Home Affairs (3414/2010) [2012] ZAECPEHC 12; 2012 (5) SA 626 (ECP) (16 February 2012)

Alam v Minister of Home Affairs (3414/2010) [2012] ZAECPEHC 12; 2012 (5) SA 626 (ECP) (16 February 2012)

The court found that the plaintiff, pending the final determination of his application for judicial review of the refusal of asylum, is lawfully present in South Africa and has the intention to settle for an indefinite period. This satisfies the requirements for domicile under the Domicile Act, rendering him an incola and not a peregrinus. Even if the plaintiff were a peregrinus, the court would exercise its discretion to absolve him from furnishing security for costs, considering his vulnerable status as an asylum seeker, the nature of his claim against the State, and the constitutional right of access to court. The application for security for costs is therefore dismissed.

Citation
[2012] ZAECPEHC 12
Parties
Plaintiff: Jannatu Alam; Defendant: Minister of Home Affairs
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
16 February 2012
Case Number
3414/2010
Procedural Posture
Civil Application / Application for Security for Costs
Outcome
Application for security for costs dismissed with costs, including costs of two counsel.
Judges
J D Pickering
Legal Topics
Security for Costs, Domicile, Refugee Status, Access to Court, Rule 47, Constitutional Rights
Civil Procedure Constitutional Law Security for Costs Domicile Refugee Status Access to Court Rule 47 Constitutional Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Jannatu Alam

Plaintiff

Minister of Home Affairs

Defendant

Procedural Posture

Civil Application / Application for Security for Costs

Legal Issues

  1. 1 Whether the plaintiff is a peregrinus and thus obliged to furnish security for costs.
  2. 2 Whether the plaintiff is lawfully present and domiciled in South Africa pending review of his asylum application.
  3. 3 Whether considerations of equity and public interest justify absolving the plaintiff from furnishing security for costs.

Ratio Decidendi

The court found that the plaintiff, pending the final determination of his application for judicial review of the refusal of asylum, is lawfully present in South Africa and has the intention to settle for an indefinite period. This satisfies the requirements for domicile under the Domicile Act, rendering him an incola and not a peregrinus. Even if the plaintiff were a peregrinus, the court would exercise its discretion to absolve him from furnishing security for costs, considering his vulnerable status as an asylum seeker, the nature of his claim against the State, and the constitutional right of access to court. The application for security for costs is therefore dismissed.

Court Disposition

Application for security for costs dismissed with costs, including costs of two counsel.

Orders

  • The application for security for costs is dismissed.
  • Costs are awarded to the plaintiff, including the costs of two counsel.