Magida v Minister of Police (99/86) [1986] ZASCA 94; [1987] 1 All SA 218 (A) (18 September 1986)

Magida v Minister of Police (99/86) [1986] ZASCA 94; [1987] 1 All SA 218 (A) (18 September 1986)

The Supreme Court of Appeal held that the court a quo misdirected itself by failing to properly consider the appellant's impecuniosity and the principles of equity and fairness underlying the cautio juratoria. The appellant, who became a peregrinus due to legislative action and was unable to furnish security for costs, should not be deprived of his right to litigate. The court reaffirmed that the discretion to order security for costs must be exercised with regard to all relevant facts, including the appellant's employment, lack of dishonourable conduct, and the enforceability of judgments in the Ciskei. The principles of Roman-Dutch law remain applicable, and the court should not require...

Citation
[1986] ZASCA 94
Parties
Appellant: Eric Songezo Magida; Respondent: The Minister of Police
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
18 September 1986
Case Number
99/86
Procedural Posture
Civil Appeal / Appeal From Order Compelling Appellant to Furnish Security for Costs
Outcome
Appeal upheld; order of the court a quo set aside and replaced with dismissal of the application for security for costs.
Judges
Jansen, Joubert, Viljoen, Boshoff, Nestadt
Legal Topics
Security for Costs, Peregrinus, Judicial Discretion, Cautio Juratoria, Impecuniosity, Roman Dutch Law Practice
Civil Procedure Security for Costs Peregrinus Judicial Discretion Cautio Juratoria Impecuniosity Roman Dutch Law Practice

Case Brief

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Parties

Eric Songezo Magida

Appellant

The Minister of Police

Respondent

Procedural Posture

Civil Appeal / Appeal From Order Compelling Appellant to Furnish Security for Costs

Legal Issues

  1. 1 Whether a peregrinus (non-domiciled foreigner) who is impecunious should be compelled to furnish security for costs in civil proceedings.
  2. 2 Whether the court a quo exercised its discretion correctly in ordering the appellant to provide security for costs.
  3. 3 Whether the principles of Roman-Dutch law regarding cautio juratoria remain applicable in modern South African practice.

Ratio Decidendi

The Supreme Court of Appeal held that the court a quo misdirected itself by failing to properly consider the appellant's impecuniosity and the principles of equity and fairness underlying the cautio juratoria. The appellant, who became a peregrinus due to legislative action and was unable to furnish security for costs, should not be deprived of his right to litigate. The court reaffirmed that the discretion to order security for costs must be exercised with regard to all relevant facts, including the appellant's employment, lack of dishonourable conduct, and the enforceability of judgments in the Ciskei. The principles of Roman-Dutch law remain applicable, and the court should not require...

Court Disposition

Appeal upheld; order of the court a quo set aside and replaced with dismissal of the application for security for costs.

Orders

  • The application for security for costs is dismissed with costs, including the costs of two counsel.