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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case number:48957/2014

Date: 1/6/2016

(1) REPORTABLE: YES

(2) OF INTEREST TO OTHER JUDGES: YES

In the matter between:

CORNELIUS JACOBUS JANSEN VAN RENSBURG                                        APPLICANT

And

MARIA GETRUIDA MELLET N.O.                                                                 RESPONDENT

JUDGMENT

PRETORIUS J.

(1) An order is sought in this interlocutory application, in terms of Rule 47(3) of the Uniform Rules of Court, directing the respondent to set up security for costs in the amount of R100 000 for a pending action in this court.

(2) The applicant is a major businessman married to his wife, S C Jansen van Rensburg, in community of property. The respondent is the sister of the applicant, acting in her representative capacity as executrix in the estate of the late Cornelius Jacobus Jansen van Rensburg, the father of the applicant and the executrix.

(3) The applicant's argument is that the deceased's estate is insolvent and that the pending action is vexatious and frivolous. The respondent opposes the application on the basis that the respondent is duty bound as executor of the deceased estate to institute action to claim the amount owing to the estate by its debtors and to pursue payment of all monies due and owing to the estate.

BACKGROUND:

(4) The respondent instituted action against the applicant, claiming R604 722.14 as well as the relevant interest. A further claim is for an order to declare the Repurchase Request between the applicant and the deceased null and void. The applicant instituted a counterclaim in the amount of R1 287 530.00 from the estate for expenses incurred for taking care of the applicant's and Ms Mellet's parents, alternatively, to have the last will and testament of the deceased declared void, ab initio.

(5) The applicant and Ms Mellet's father passed away on 5 July 2012. According to the deceased's last will and testament, signed on 13 February 2010, ABSA Trust was appointed as executor of the estate. ABSA Trust subsequently renounced their appointment and the respondent accepted the appointment as executrix on 5 February 2014. In his will, the deceased nominated the respondent, Erica Swanepoel and Rupert Jansen van Rensburg as the beneficiaries of his estate.

(6) The deceased had an investment with ABSA Investment Management Services ("AIMS"). The claim for the repayment from the applicant in the sum of R604 722.14 is on the basis that the deceased was of unsound mind at the time of the signing of the AIMS repurchase document and did not possess the contractual capacity to conclude such an agreement as the deceased had been diagnosed with Alzheimer's disease during 2007. This document was signed on 24 January 2012, almost five years after the deceased had been diagnosed with Alzheimer's.

(7) Should the trial court find that the deceased, due to his illness, was not of a sound mind during the course of January 2012 according to the applicant, it follows that his last will, signed during February 2010, should be declared null and void. The result will be that the deceased had died intestate.

(8) The applicant made a request for security of costs on 1 October 2014, but the respondent assured the applicant that the estate had more than adequate funds to satisfy any cost order in the action.

THE LAW:

(9) Rule 47(1)[1] provides:

"A party entitled and desiring to demand security for costs from another shall, as soon as practicable after the commencement of proceedings, deliver a notice setting forth the grounds upon which such security is claimed, and the amount demanded."

And Rule 47(3) [2] provides:

"If the party from whom security is demanded contests his liability to give security of if he fails or refuses to furnish security in the amount demanded or the amount fixed by the registrar within ten days of the demand or the registrar's decision, the other party may apply to court on notice for an order that such security be given and that the proceedings be stayed until such order is complied with."

(10) In Boost Sports Africa (Pty) Ltd v The South African Breweries (Pty) Ltd[3] the court held at paragraph 5:

'The rule, which deals with the procedure to be followed, applies to all cases where security is sought in the high court. It deals with procedure and not with substantive law. For the substantive right, it is to the common law and the relevant statutory provisions that one must look. The general rule of our law as laid down in Witham v Venables (1828) 1 Menz 291 is that an incola plaintiff cannot be compelled to furnish security for costs." (Court emphasis)

(11) Section 173 of the Constitution[4] provides:

"The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice."

(12) The High Court has the inherent power to regulate its own process and to develop the common law, taking into account the interests of justice.

(13) It was held in the Boost case[5] at paragraph 16:

"Accordingly, even though there may be poor prospects of recovering costs, a court, in its discretion should only order the furnishing of security for such costs by an incola company if it is satisfied that the contemplated main action (or application) is vexatious or reckless or otherwise amounts to an abuse." (Court emphasis)

(14) It is clear that a court will have to accept that incola litigants should not be ordered to pay security for costs as the provisions of section 34 of the Constitution[6] provides:

"Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum."

(15) The court will intervene where it is clear that an incola plaintiff's litigation appears to be vexatious, frivolous or amount to an abuse of process.

(16) The court has to balance the right to litigate and the need to protect the court process from vexatious, reckless or conduct that amounts to an abuse of process.

(17) Frivolous and vexatious litigation will be litigation instituted to annoy a defendant or for an ulterior motive. The only decision I have to make is whether the application for security for costs is justified under the present circumstances.

(18) According to the applicant the deceased's estate is de facto insolvent, the applicant has a substantial claim against the estate and the availability of funds will determine whether he will proceed with the counterclaim, as the counterclaim exceeds the value of the estate. He further contends that Ms Mellet is only serving her own interest as a beneficiary of the estate.

(19) According to the respondent the estate's assets are a cash amount of approximately R143 600 and the claim of R604 722.14 against the applicant. Should the respondent prove that the deceased was contractually unfit to sign the AIMS repurchase form, she will succeed in her claim, as the AIMS pay-out would be extinguished and restitution will take place.

(20) I am not in the position to decide on the relevant issues in the action, as the trial court will have to hear evidence to determine whether the respondent can succeed with the claim. This court is unable to decide whether set-off should apply and to which extent. I agree that the executrix is obliged to claim all amounts owing to the deceased estate. There are no facts on the papers on which I can find that the action has been instituted to annoy the defendant, or that the action is frivolous or vexatious.

(21) Should the action proceed and the respondent fail in the action, an appropriate cost order will follow. The trial court will be in a much more favourable position to decide whether the action has merits and if not, to order an adverse cost order, even to the extent that the trial court may order that the respondent pay the costs de bonis propriis, if necessary.

(22) On the evidence presently before me, I cannot find that the action has been instituted to be vexatious, frivolous, reckless or that the plaintiff's action amount to an abuse of process.

(23) I consequently make the following order:

The application is dismissed with costs.

___________________

Judge C Pretorius

Case number                                      : 48957/2014

Matter heard on                                   : 23 May 2016

For the Applicant                               : Adv Pl Oosthuizen

Instructed by                                     : Benadie Inc

For the Respondent                          : Adv P Lourens

Instructed by                                     : Laubscher Attorneys

Date of Judgment                             :

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