Pascal v Pascal (11967/07, 11968/07) [2007] ZAGPHC 229 (5 October 2007)

Pascal v Pascal (11967/07, 11968/07) [2007] ZAGPHC 229 (5 October 2007)

The court found that Junior failed to establish sufficient grounds for ordering Senior to furnish security for costs. Senior provided credible evidence of South African citizenship and substantial assets within the country, and Junior's own admissions supported Senior's financial capacity. The application for security for costs was not brought within a reasonable time and appeared intended to impede Senior's access to justice. The court exercised its discretion against granting security for costs, emphasizing fairness and constitutional rights. The counter-application for discovery was granted due to exceptional circumstances, including serious allegations of asset disposition and the...

Citation
[2007] ZAGPHC 229
Parties
Applicant: Pascal Monkam (JNR); Respondent: Pascal Monkam (SNR); Applicant: Susie Monkam; Respondent: Tulah Trading (Pty) Ltd; Respondent: Hoopstraat Beleggings (Pty) Ltd; Respondent: Madelene Properties (Pty) Ltd; Respondent: ABSA Bank; Respondent: Standard Bank of South Africa
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
5 October 2007
Case Number
11967/07, 11968/07
Procedural Posture
Civil Application / Security for Costs and Discovery Applications Under Rule 47 and Rule 35(13); Counter Application
Outcome
Applications for security for costs under both case numbers are dismissed. Counter-application for discovery and supplementation of affidavits is granted. Costs awarded to Senior and Susie Monkam, including costs for two counsel.
Judges
Mavundla
Legal Topics
Security for Costs, Discovery in Application Proceedings, Peregrinus and Incola, Directorship Dispute, Interdict, Arbitration Referral
Civil Procedure Commercial and Corporate Security for Costs Discovery in Application Proceedings Peregrinus and Incola Directorship Dispute Interdict Arbitration Referral

Case Brief

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Parties

Pascal Monkam (JNR)

Applicant

Pascal Monkam (SNR)

Respondent

Susie Monkam

Applicant

Tulah Trading (Pty) Ltd

Respondent

Hoopstraat Beleggings (Pty) Ltd

Respondent

Madelene Properties (Pty) Ltd

Respondent

ABSA Bank

Respondent

Standard Bank of South Africa

Respondent

Procedural Posture

Civil Application / Security for Costs and Discovery Applications Under Rule 47 and Rule 35(13); Counter Application

Legal Issues

  1. 1 Whether Senior (Pascal Monkam Snr) should be ordered to furnish security for costs as a peregrinus.
  2. 2 Whether Junior (Pascal Monkam Jnr) has established grounds for security for costs under Rule 47.
  3. 3 Whether discovery should be ordered in application proceedings under Rule 35(13).

Ratio Decidendi

The court found that Junior failed to establish sufficient grounds for ordering Senior to furnish security for costs. Senior provided credible evidence of South African citizenship and substantial assets within the country, and Junior's own admissions supported Senior's financial capacity. The application for security for costs was not brought within a reasonable time and appeared intended to impede Senior's access to justice. The court exercised its discretion against granting security for costs, emphasizing fairness and constitutional rights. The counter-application for discovery was granted due to exceptional circumstances, including serious allegations of asset disposition and the...

Court Disposition

Applications for security for costs under both case numbers are dismissed. Counter-application for discovery and supplementation of affidavits is granted. Costs awarded to Senior and Susie Monkam, including costs for two counsel.

Orders

  • Both applications in terms of Rule 47 in the counter-application under case number 11967/07 are dismissed with costs, including costs of two counsel, one of whom is senior counsel.
  • Pascal Monkam Junior is directed to make discovery of the documents listed in annexure 'A' within 15 days and to make them available for inspection and copying within 5 days thereafter.