Brits and Another v Mahon and Others (4764/2009) [2009] ZAWCHC 150 (21 September 2009)

Brits and Another v Mahon and Others (4764/2009) [2009] ZAWCHC 150 (21 September 2009)

The court found that the First Respondent did not initiate the interpleader proceedings. The provisional sentence proceedings were between the First and Third Respondents and had concluded with a final judgment, with no appeal pending. The execution and attachment were not proceedings as contemplated by Rule 47(1) of the Uniform Rules. The Applicants themselves initiated the interpleader proceedings by making adverse claims to the attached property. Therefore, the First Respondent, as a peregrinus, cannot be compelled to furnish security for costs in these circumstances. The court exercised its discretion, considering fairness and equity, and dismissed the application for security for costs.

Citation
[2009] ZAWCHC 150
Parties
Applicant: Walter Elliot Brits; Applicant: Walton Real Estate Limited; Respondent: Iola Mahon; Respondent: Sheriff of the High Court of Cape Town; Respondent: Brian Robert Mahon
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
21 September 2009
Case Number
4764/2009
Procedural Posture
Stay Application / Application for Security for Costs in Pending Interpleader Proceedings
Outcome
Application dismissed. Costs awarded against the Applicants, including costs of two counsel.
Judges
K J Moloi
Legal Topics
Security for Costs, Interpleader Proceedings, Peregrinus and Incola, Common Law Discretion
Civil Procedure Security for Costs Interpleader Proceedings Peregrinus and Incola Common Law Discretion

Case Brief

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Parties

Walter Elliot Brits

Applicant

Walton Real Estate Limited

Applicant

Iola Mahon

Respondent

Sheriff of the High Court of Cape Town

Respondent

Brian Robert Mahon

Respondent

Procedural Posture

Stay Application / Application for Security for Costs in Pending Interpleader Proceedings

Legal Issues

  1. 1 Whether the First Respondent, as a peregrinus, can be compelled to furnish security for costs in interpleader proceedings initiated by the Applicants.
  2. 2 Whether the First Respondent initiated the proceedings for which security for costs is sought.
  3. 3 Whether the execution process and subsequent interpleader proceedings constitute proceedings initiated by the First Respondent for purposes of Rule 47(1).

Ratio Decidendi

The court found that the First Respondent did not initiate the interpleader proceedings. The provisional sentence proceedings were between the First and Third Respondents and had concluded with a final judgment, with no appeal pending. The execution and attachment were not proceedings as contemplated by Rule 47(1) of the Uniform Rules. The Applicants themselves initiated the interpleader proceedings by making adverse claims to the attached property. Therefore, the First Respondent, as a peregrinus, cannot be compelled to furnish security for costs in these circumstances. The court exercised its discretion, considering fairness and equity, and dismissed the application for security for costs.

Court Disposition

Application dismissed. Costs awarded against the Applicants, including costs of two counsel.

Orders

  • The application is dismissed.
  • Applicants are ordered to pay the costs jointly and severally, the one paying the other to be absolved.