BOWES & ORS v MANOLAKAKIS 2011 (2) ZLR 59 (H)

Flynote

C Constitutional law — Constitution of Zimbabwe 1980 — ss 18(1) and 18(9) — right to protection of the law — application for security for costs not to be granted unreasonably

Costs — security for — action brought by peregrinus — incola's right to seek security for costs — court's discretion as to whether to order security — considerations — security for costs a discretionary remedy — remedy arises out of judicial practice — relief must not be granted unreasonably

Headnote

The protection of provision of security for costs by a peregrinus is only available to an incola of Zimbabwe, who is not, a general rule, required ^εto provide security for costs. In seeking this protection, he must prove that the respondent is a peregrinus. He must also satisfy the court that he is indeed an incola before the protection can be granted. Such status is not acquired merely by having a claim within Zimbabwe, which claim is the subject of the dispute, no matter how substantial that claim may be. An incola connotes an element of residence, not temporary residence ^ϕbut constituting domicile in the country. In Zimbabwe there are no rules providing for an order of security for costs. The issue of security for costs arises out of judicial practice. The court, however, retains the exclusive discretion to make such order or not. In exercising its discretion the court is guided first and foremost by the provisions of s 18(1), as read with s 18(9), of the Constitution of ^σZimbabwe 1980, namely, that every person is entitled to the protection of the law and to be afforded a fair hearing within a reasonable time by an impartial tribunal in the determination of the existence or extent of his civil rights or obligations. The respondent, a peregrinus, had instituted proceedings seeking to set aside the will of her late husband, M, which, she alleged, had been drafted by P and bore a forged signature. In her lifetime, P, who was also recently deceased, had been the partner of M and the mother of two children. The respondent was a peregrinus. The first applicant, who was the executor dative of the estate of the late P, sought an order of security of costs against the respondent. Apart from the first applicant himself and the estate of the late M, all parties to the proceedings were effectively peregrini. The applicants proposed to bring witnesses, at very considerable cost, from both Greece and South Africa to prove that the signature on the will was not a forgery. The respondent was a very elderly woman and there was nothing before the court to show that she was able to pay the costs in question.

Held, that there was nothing to show that the proposed costs of bringing witnesses from Greece and South Africa were reasonable and the respondent should not be denied justice by any unreasonable obstacles being placed in her way. In the circumstances and in the exercise of the court's discretion, the application for security for costs must be dismissed, with the costs thereof to be costs in the main cause.