M.P v M.P (610/1996) [2017] ZANWHC 69 (27 October 2017)

M.P v M.P (610/1996) [2017] ZANWHC 69 (27 October 2017)

The court found that the respondent is unemployed and lacks assets, making it unlikely that the applicant could recover costs if the appeal fails. The respondent's application for leave to appeal was deemed to have no reasonable prospects of success, and no compelling reasons were identified for it to be heard, as the Supreme Court of Appeal had already clarified the relevant pension interest issues. The respondent was not represented by Legal Aid in the current proceedings, so Rule 47A did not exempt him from furnishing security. The court balanced the interests of both parties and concluded that the prejudice to the applicant outweighed that to the respondent. Accordingly, the...

Citation
[2017] ZANWHC 69
Parties
Applicant: M P; Respondent: M P
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
27 October 2017
Case Number
610/1996
Procedural Posture
Stay Application / Application for Security for Costs Under Rule 47(3), Prior to Hearing of Leave to Appeal and Condonation Applications
Outcome
Application for security for costs granted; respondent ordered to furnish security before leave to appeal and condonation applications may proceed.
Judges
Kgoele
Legal Topics
Security for Costs, Leave to Appeal, Condonation, Variation of Divorce Order, Pension Interest, Access to Court
Civil Procedure Family and Children Security for Costs Leave to Appeal Condonation Variation of Divorce Order Pension Interest Access to Court

Case Brief

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Parties

M P

Applicant

M P

Respondent

Procedural Posture

Stay Application / Application for Security for Costs Under Rule 47(3), Prior to Hearing of Leave to Appeal and Condonation Applications

Legal Issues

  1. 1 Whether the respondent should be ordered to furnish security for costs in respect of his application for leave to appeal and condonation for late filing.
  2. 2 Whether the respondent's application for leave to appeal is vexatious or has reasonable prospects of success.
  3. 3 Whether ordering security for costs would unjustly impede the respondent's constitutional right of access to court.

Ratio Decidendi

The court found that the respondent is unemployed and lacks assets, making it unlikely that the applicant could recover costs if the appeal fails. The respondent's application for leave to appeal was deemed to have no reasonable prospects of success, and no compelling reasons were identified for it to be heard, as the Supreme Court of Appeal had already clarified the relevant pension interest issues. The respondent was not represented by Legal Aid in the current proceedings, so Rule 47A did not exempt him from furnishing security. The court balanced the interests of both parties and concluded that the prejudice to the applicant outweighed that to the respondent. Accordingly, the...

Court Disposition

Application for security for costs granted; respondent ordered to furnish security before leave to appeal and condonation applications may proceed.

Orders

  • The respondent is ordered to furnish the applicant with security for her costs of the application for leave to appeal, including the application for condonation, in the amount and form to be determined by the Registrar.
  • The respondent's application for leave to appeal and for condonation for late noting thereof are stayed until compliance with the security order.