An acting judge has expressed his concerns over whether it is ever justifiable in a constitutional democracy to “arm” the rich and to disadvantage the poor in their ability to turn to the courts.
The issue was sparked by a family feud over land in which several female members of the family took on various other family members, mostly men, following the death of the patriarch of the family.
In defending the land dispute litigation, the respondents, some of whom are the brothers of the female applicants, wanted the applicants in the matter to first issue security for costs before they were permitted to proceed with their application.
That, they said, was just in case the applicants lost their application and would be faced with a costs order against them which they might not be able to pay.
The respondents told the Limpopo High Court, sitting in Thohoyandou, that the applicants were indigent and did not have the financial resources to pay costs “when” they lost their application. They said the land dispute issue was vexatious and without merit.
In the opening of his judgment on the issue of security for legal costs, Acting Judge MS Monene questioned whether it was justifiable in a constitutional democracy, characterised in part by equality before the law and the right of access to court, enjoyed by all, to deny the indigent an opportunity to vindicate their rights on account of their inability to cover anticipated legal costs in case they lost.
In dealing with the court rule allowing for security of costs before a case may proceed, the judge questioned whether the rule was a relic or remnant or an aberration of a sad, primitive, colonial and/or feudalistic past which, no matter how it was garnished today, “deserves a frown of disdain from our courts”.
“Is it not socially vulgar and constitutionally distasteful to accommodate a rule which wittingly or unwittingly arms the rich with the uppity arrogance to boastingly say to the poor: ‘You are too much of a peasant to litigate against me’?”
“Does our constitution permit, in some circumstances, the fixing of an entrance or admission fee at the gates of our courts for some litigants?”
The judge said those questions weighed heavily on his mind as he had to determine the application.
In the main application, the sisters called upon other family members to show cause why rural land on which they run a petrol filling station in a rural village should not be declared part of the estate of their late father.
Faced with the application to issue financial security before they could proceed with their application, the applicants said that they sought to vindicate the rights of female heirs to intestate succession within the uncertain matrix of rural land ownership.
They said they need not have money to seek protection from the law by pursuing their application regarding the petrol station and the land on which it was situated.
Judge Monene said he could not find anything in the court papers regarding the land dispute to say that it was a vexatious application by the applicants.
He said he was persuaded that the issues of a claim of an asset on behalf of a deceased, of equality of genders in intestate death claims and of how succession of title or transference of rural land should evolve were deserving of being heard.
“My sense of justice would not permit me to make a finding which would suggest that one must first have money before one exercises one’s constitutional right of access to courts. Not even colonial and apartheid era courts thought like that.”
The judge added that it could not be that, even if a case lacked merit, age and money determined whether a court hears a dispute.
“There really is no need for the monied to be protected from the poor by our courts such that, appearance being reality, it would appear as if justice is a prized commodity attainable only by those with money.”
Judge Monene added that while it was true that the rich might, and often did, get a costs orders against poor opponents who failed to defray the costs owing to obvious indigence, resulting in prejudice and unfairness being visited upon the rich, in his view, life never being fully fair, that unfairness was much more tolerable than the grievous unfairness of shutting the courtroom doors in the faces of the poor.
“Meritless or frivolous applications or not, this court would still have had no appetite to ordering security for costs because, in my view, orders in terms of rule 47 amount to fixing an entrance fee at the courtroom door, which admission fee is curiously payable by them that cannot afford to pay, the poor.”