Robert Malcom Macgillivary Bowes v Maria Manolakakis

The late Dr. John Joseph Manolakakis, a Greek medical doctor practicing in Zimbabwe, died on 2 July 2006 at age 72, leaving behind two flats and personal effects. He had no children and was survived by his mother (the respondent) who is based in Greece. At the time of his death, he had a 'living in partner', Evangelia Patrinos, who was appointed executrix dative of his estate on 23 August 2006. Evangelia Patrinos died on 8 March 2008 in Greece, survived by her two sons (4th and 5th applicants) who are based in Greece and England. The first applicant was appointed executor dative of Evangelia Patrinos' estate. The respondent brought an action (HC 2226/08) seeking to nullify the will of Dr. Manolakakis, alleging it was forged by Evangelia Patrinos. The applicants then sought an order requiring the respondent, as a peregrinus (foreigner), to pay US$29,150.00 as security for costs. All parties involved are foreign nationals based outside Zimbabwe, with the exception of the deceased's estate.

• Whether a peregrinus (foreign national) should be required to provide security for costs when the defending parties are also foreign nationals (peregrini) rather than incola (residents/domiciled persons)
• Whether the first applicant had proper authority to bring the application on behalf of all cited applicants
• Whether the court should exercise its discretion to dispense with the requirement for security for costs in the circumstances
• The proper interpretation and application of constitutional rights to access to justice in the context of security for costs applications

The application was dismissed with costs to be costs in the main action.

The binding legal principle established is that the rule requiring a peregrinus to provide security for costs exists primarily to protect the interests of an incola (a person domiciled in Zimbabwe) who is sued or opposed by a peregrinus. A party seeking the remedy of security for costs must satisfy the court that it is an incola before such protection can be granted. Where both parties to litigation are peregrini (foreign nationals domiciled outside Zimbabwe), the defendant does not have an automatic right to an order for security for costs. The court retains exclusive discretion in making orders for security for costs, and must exercise that discretion in accordance with constitutional guarantees of access to justice and fair hearing, ensuring that unreasonable obstacles are not placed in the way of persons seeking redress in the courts.

The court made non-binding observations regarding the reasonableness of the quantum of costs claimed by the applicants. Mathonsi J noted that the applicants proposed to bring witnesses from Greece and South Africa at very high cost merely to prove that a disputed signature belonged to the deceased, and observed that on the evidence available, it had not been shown that the proposed costs were reasonable. The court also commented on the proper procedure for executors, noting that the 1st applicant held letters of administration in his personal capacity and could only bring an application on behalf of the 3rd applicant's estate, not in his capacity as 'director of National Executor and Trust (Pvt) Ltd'. The court further observed that the presence of a claim within Zimbabwe, no matter how substantial, does not constitute incola status, which connotes residence and domicile, not temporary presence.

This case is significant in Zimbabwean civil procedure law as it clarifies that the rule requiring security for costs from a peregrinus is designed to protect incola (domiciled residents), not other foreign nationals. The judgment emphasizes that when both parties to litigation are peregrini, the automatic right to security for costs does not arise. The case also reinforces the importance of constitutional rights to access to justice in the exercise of judicial discretion regarding security for costs, and demonstrates that courts should be cautious about placing unreasonable financial obstacles in the way of litigants, particularly elderly persons of limited means. It provides guidance on the proper interpretation of 'incola' status and the burden of proof required to establish domicile for purposes of security for costs applications.