Schleyer and Another v Marschall (2020/819) [2021] ZAGPPHC 540 (19 August 2021)

Schleyer and Another v Marschall (2020/819) [2021] ZAGPPHC 540 (19 August 2021)

The applicants failed to establish a right to security for costs against the respondent, a peregrinus, as the respondent owns unencumbered immovable property in South Africa of sufficient value to satisfy any costs order. There is no credible evidence that the respondent would be unable to pay costs if ordered, nor that the applicants would be left without a remedy. The court exercised its discretion, considering the respondent's financial position, the existence of unencumbered property, and the ability to enforce judgments in Germany, and found no exceptional circumstances warranting an order for security for costs. The application was therefore dismissed, and costs awarded against the...

Citation
[2021] ZAGPPHC 540
Parties
Applicant: Barbara Schleyer; Applicant: Albert Schleyer; Respondent: Franz Marschall
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 August 2021
Case Number
2020/819
Procedural Posture
Security for Costs Application / Application for Security for Costs Prior to Trial
Outcome
Application dismissed; costs awarded against the applicants.
Judges
Nochumsohn
Legal Topics
Security for Costs, Peregrinus and Incola, Immovable Property Valuation, Execution Against Property
Civil Procedure Land and Property Security for Costs Peregrinus and Incola Immovable Property Valuation Execution Against Property

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 6 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Barbara Schleyer

Applicant

Albert Schleyer

Applicant

Franz Marschall

Respondent

Procedural Posture

Security for Costs Application / Application for Security for Costs Prior to Trial

Legal Issues

  1. 1 Whether the applicants are entitled to an order compelling the respondent, a peregrinus, to provide security for costs.
  2. 2 Whether the respondent's ownership of unencumbered immovable property in South Africa negates the need for security for costs.
  3. 3 Whether there is a real risk that the applicants will be unable to recover costs if successful.

Ratio Decidendi

The applicants failed to establish a right to security for costs against the respondent, a peregrinus, as the respondent owns unencumbered immovable property in South Africa of sufficient value to satisfy any costs order. There is no credible evidence that the respondent would be unable to pay costs if ordered, nor that the applicants would be left without a remedy. The court exercised its discretion, considering the respondent's financial position, the existence of unencumbered property, and the ability to enforce judgments in Germany, and found no exceptional circumstances warranting an order for security for costs. The application was therefore dismissed, and costs awarded against the...

Court Disposition

Application dismissed; costs awarded against the applicants.

Orders

  • The application for security for costs is dismissed.
  • The applicants are ordered to pay the respondent's costs of this application on the party and party scale.