Mahon v Mahon (18974/2008 & 14918/2008) [2008] ZAWCHC 78 (21 December 2008)

Mahon v Mahon (18974/2008 & 14918/2008) [2008] ZAWCHC 78 (21 December 2008)

The court found that the respondent is a peregrinus based on his own affidavit stating permanent residence and domicile in Mauritius. The applicant discharged the onus of proof required for a claim for security for costs. The court considered the broader context, including the respondent's lack of assets in South Africa and the necessity for the applicant to litigate in South Africa to enforce foreign judgments and protect her interests. Applying the discretion, the court held that justice and equity require the respondent to furnish security for costs, especially as the applicant has no other means to secure her position. The court granted the application for security for costs,...

Citation
[2008] ZAWCHC 78
Parties
Applicant: Iola Mahon; Respondent: Brian Robert Mahon
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
21 December 2008
Case Number
18974/2008 & 14918/2008
Procedural Posture
Civil Application / Application for Security for Costs
Outcome
Application granted. Respondent ordered to furnish security for costs.
Judges
D M Davis
Legal Topics
Security for Costs, Peregrinus, Discretion of Court, Ancillary Relief Orders
Civil Procedure Family and Children Security for Costs Peregrinus Discretion of Court Ancillary Relief Orders

Case Brief

Summary, issues, holding and outcome

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Parties

Iola Mahon

Applicant

Brian Robert Mahon

Respondent

Procedural Posture

Civil Application / Application for Security for Costs

Legal Issues

  1. 1 Whether the respondent is a peregrinus for the purposes of security for costs.
  2. 2 Whether the applicant has discharged the onus to prove entitlement to security for costs.
  3. 3 Whether the court should exercise its discretion to order the respondent to furnish security for costs.

Ratio Decidendi

The court found that the respondent is a peregrinus based on his own affidavit stating permanent residence and domicile in Mauritius. The applicant discharged the onus of proof required for a claim for security for costs. The court considered the broader context, including the respondent's lack of assets in South Africa and the necessity for the applicant to litigate in South Africa to enforce foreign judgments and protect her interests. Applying the discretion, the court held that justice and equity require the respondent to furnish security for costs, especially as the applicant has no other means to secure her position. The court granted the application for security for costs,...

Court Disposition

Application granted. Respondent ordered to furnish security for costs.

Orders

  • Respondent is directed to furnish security for applicant's costs in the application under case number 14918/2008 by no later than Friday 5 December 2008.
  • If security is not furnished by the deadline, the application under case number 14918/2008 shall be dismissed with costs, including costs of two counsel.