In a recently published judgment of the High Court of South Africa, Cape Provincial Division (Silvercraft Helicopters (Switzerland) v Zonnekus Mansions 2009 (5) SA 602)), the Court had to deal with the question whether, in terms of the common law, an order for security for the claim, or only for costs, was to be made when an action (either in convention or in reconvention) is brought by an incola against a peregrinus. Citing a long passage in an article by Prof. Christian Schulze “Should a peregrine plaintiff furnish security for costs for the counterclaim of an incola defendant” , (2007) 19 South African Mercantile Law Journal 393-399, the Court adopted Schulze’s view and held “that there is indeed a practice operating in this division that would permit the court to grant an order directing the plaintiffs to give security for the potential value, and costs, of the second defendant’s claim in reconvention, but that all the circumstances should be considered before a plaintiff is compelled to provide security in full for a claim in reconvention”.
(Possibly) Related:
- Eighteen Publications on South African Private International Law 2007-2008
- German Article: Costs of Free Choice of Law from an Economic Perspective
- German Federal Constitutional Court on the Service of Statements of Claim in American Class Actions
- Developments in the Recognition of Foreign Class Action Judgments
- Maher v Groupama Grand Est: Law Applicable to Direct Action Against Insurer
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May I ask whether incola and peregrinus are South African animals?
I cannot tell whether you are being humourous, Gilles (it’s been a long day), but my hazy knowledge of Latin suggest that all of those terms (incola, advena, peregrinus, vagus) have Latin roots that are entirely unconnected to animals, whether they be real or mythological.
I have to admit that my old memories of Latin indicate me that peregrinus might mean foreigner. But never heard of incola before. Is that a local? A local resident? A local national?
As far as I can recall (linguistically, that is, but of course they may have different meanings as legal terms of art):
incola = resident
advena = temporary resident
peregrinus = foreigner (or perhaps, ‘traveler’
vagus = transient
Those with a greater knowledge of Latin than I (which isn’t terribly hard, clearly), do feel free to correct me.