Vexatious litigants

A vexatious litigant is a person who persistently initiates legal action for the purposes of harassing or subduing an adversary. Unfortunately, the victims of these vexatious litigants cannot simply ignore the frivolous legal proceedings instituted and are forced to respond in accordance with the rules of court regardless of how ridiculous the claims may be.

27 Mar 2019 3 min read Dispute Resolution Alert Article

The Vexatious Proceedings Act, No 3 of 1956 (the Act) seeks to provide relief to applicants that can demonstrate that a respondent has persistently instituted legal proceedings without reasonable grounds. Furthermore, the Act seeks to protect an applicant who is subjected to costs and unmeritorious litigation as well as the functioning of the courts to proceed unimpeded by groundless proceedings.

The applicant can make an application to court for an order declaring the respondent a vexatious litigant. The effect of this is that the respondent can no longer institute legal action in any court against the applicant without leave of the court. The court will only grant such leave if it is satisfied that the legal action is not an abuse of the court process and that there are prima facie grounds for the proceedings.

In the matter of Christensen NO v Richter 2017 JDR 1637 (GP), an application in terms of s2(1)(b) of the Act was brought to declare the first respondent, a vexatious litigant. The first respondent had launched several applications against the estate. In deciding whether to declare the first respondent a vexatious litigant the court held that:

“[the first respondent] is, in my view, a vexatious litigant. He should therefore be prevented from instituting any further legal proceedings against the estate and/ or its executors. I am satisfied under the circumstances that the applicants have made out a case for a final interdict. They have established a clear right for the granting of a final interdict. It is clear that the applications launched by the first respondent are vague and not substantiated and the balance of convenience favours the granting of the final interdict. The first respondent cannot continue to litigate as relentlessly as he does, disregarding court orders. This has to stop. I am inclined to accept that the applicants have no alternative remedy to stop him from continuing with his actions.”

In Beinash and Another v Ernst and Young and Others 1999 (2) SA 116 (CC), the court considered the constitutionality of s2(1)(b) of the Act. The court confirmed that:

“the provision does limit a person’s right of access to court. However, such limitation is reasonable and justifiable. While the right of access to court is important, other equally important purposes justify the limitation created by the Act. These purposes include the effective functioning of the courts, the administration of justice, and the interests of innocent parties subjected to vexatious litigation. Such purposes are served by ensuring that the courts are neither swamped by matters without any merit, nor abused in order to victimise other members of society”.

Notwithstanding the fact that the right of access to courts is protected under s34 of the Constitution of the Republic of South Africa Act, No 108 of 1996 (the Constitution), this right can be limited in terms of s36 of the Constitution and justified to protect and secure the right of access for those with meritorious disputes.

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