ZENDERA v MCDADE & ANOR 1985 (2) ZLR 18 (H)

Flynote

Practice and procedure — application for security for costs — both respondents peregrini — object of the rule — no reason in present case for existence of rule that property which is in dispute cannot be regarded as security for applicant's costs.

Headnote

The respondents, residents of South Africa, jointly owned a house in Harare. The house was valued at $23 000,00 and was occupied by the applicant. Applicant alleged that by virtue of an agreement between him and the respondents he was entitled to purchase and the respondents obliged to sell the house to him. The respondents instituted motion proceedings claiming cancellation of the agreement. Because the respondents were peregrini the applicant sought from the respondent's security for the costs which he would incur in contesting the motion proceedings. The immovable property was mortgaged to a building society for $12 500,00and the respondents held an equity of at least $10 000,00 in the property.

Held, dismissing the application, that the object of the rule requiring a peregrinus to give security for the defendant's costs is to make sure that the incola will not suffer any loss if he is awarded the costs of the proceedings.

Held, further, that whether or not the applicant in the present case successfully opposed the motion proceedings, he would be adequately secured as far as his costs in those proceedings were concerned.

Held, further, that in a case such as the present one there was no reason for the existence of the rule that the property which was in dispute could not be regarded as security for the applicant's costs. The rule was never meant to apply to a case such as the present one where the applicant was adequately protected by the property in dispute.