It is therefore possible for litigants to misuse this right by engaging in persistent, frivolous and manifestly unmeritorious litigation. Vexatious litigants often represent themselves as a result of the inability to retain legal counsel, and are often in a position to afford protracted legal battles by virtue of being funded by persons and/or entities for which they act as a front. The Vexatious Proceedings Act 3 of 1956 (“the Act”) serves as a shield against such abuse, and seeks to protect victims from litigation aimed at punishing them and depleting their finances without any recourse.
The legal provision
Section 2(1)(b) of the Act provides that “If, on an application made by any person against whom legal proceedings have been instituted by any other person or who has reason to believe that the institution of legal proceedings against him is contemplated by any other person, the court is satisfied that the said person has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity of being heard, order that no legal proceedings shall be instituted by him against any person in any court or any inferior court without the leave of the court, or any judge thereof, or that inferior court, as the case may be, and such leave shall not be granted unless the court or judge or the inferior court, as the case may be, is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings.”
The purpose of this provision
In S v Sitebe 1965 (2) SA 908 (N), Caney J held as follows: “The purpose of the legislation is to put a stop to the persistent and ungrounded institution of legal proceedings…”
Again, in Absa Bank Ltd v Dlamini 2008 (2) SA 262 (T), Rabie J held that the purpose is to protect “the interests of the victims of the vexatious litigant who have repeatedly been subjected to the costs, harassment and embarrassment of unmeritorious litigation, and, secondly, to protect the public interest that the functioning of the courts and the administration of justice proceed unimpeded by the clog of groundless proceedings”.
Two aims can thus be identified from these quotations:
- To protect the interests of the victims of a vexatious litigant by putting a stop to the persistent and unjustified institution of legal proceedings before a court; and
- To protect the public interest by ensuring that the functioning of the courts and the administration of justice proceed unimpeded by the clog of groundless proceedings.
The constitutional right of access to courts
Section 34 of the Constitution provides that: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” Clearly, section 2(1)(b) of the Act impinges on this basic right. This limitation has been considered by our courts on a number of occasions. The leading decision by the Constitutional Court, in Beinash v Ernst & Young 1999 (2) SA 116 (CC) (“Beinash”), found that although section 2(1)(b) does limit the right of access to court, “such limitation is reasonable and justifiable” when having regard to the provisions of section 36 of the Constitution. Mokgoro J, when considering whether the limitation was reasonable, pointed out that section 2(1)(b) creates a screening procedure, not a barrier, to any further litigation.
This procedural barrier to litigation by persons who are found to be vexatious litigants restricts their access to courts so as to stop the persistent and ungrounded institution of legal proceedings and the making of unjustified claims against others.
As such, it is not an immutable bar to litigation, but is aimed at regulating access to courts to protect the interests of those at the receiving end of the vexatious litigant. It also affords redress in situations where applicants are litigating at their leisure and are engaging and keeping the resources of others occupied with frivolous, meritless applications, whilst leaving no prospect of successfully recovering the legal and other administrative costs so incurred.
The Beinash judgment has been cited and followed in a number of subsequent decisions, most recently in Pricewaterhouse Coopers v Pienaar  ZAWCHC 184 and C v C  ZAGPPHC 125.
Who may bring such an application?
An application for an order in terms of section 2(1)(b) of the Act may be made by any person against whom legal proceedings have been instituted by another person, or who has reason to believe that the institution of legal proceedings against him is contemplated by any other person.
In law, a "person" is somebody who or something which is capable of acquiring legal rights and is subject to legal duties. The law distinguishes between natural and juristic persons. A juristic person is an entity upon which the law confers legal personality to participate in legal activity in its own name, such as a company or a close corporation. As such, it is quite distinct from the individual members of which it is composed. Accordingly, the requirement in section 2(1)(b) of the Act that the legal proceedings must have been instituted and/or contemplated by any other “person”, includes juristic persons.
The requirements which must be met before an order in terms of section 2(1)(b) of the Act will be granted are:
- legal proceedings have previously been instituted, or there is reason to believe that the institution of legal proceedings against the applicant is contemplated;
- the court must be satisfied that the person instituting the proceedings, has instituted legal proceedings persistently and without any reasonable ground; and
- the court must be satisfied that the previous proceedings were an abuse of the court process and that there are no prima facie grounds for further proceedings.
In Beinash, the court confirmed that an order as envisaged in section 2(1)(b) of the Act, “is only made in circumstances where the court is satisfied that the malfeasant has ’persistently and without reasonable grounds instituted proceedings’.
The meaning of the word “persistent” in this context was considered by Gorven J in MEC for Co-operative Governance and Traditional Affairs v Maphanga 2018 (3) SA 246 (KZN): “The word ‘persistent’ has a range of meanings. It can simply mean a tendency to persist, in other words, a refusal to give up in the face of adversity. It can also mean continuing or recurring. Taking account of the language, the context and, in particular, the purpose of the legislation and the background to its preparation, the word must mean recurring legal proceedings and not sheer doggedness in seeing a single matter through to finality. Because the legislation limits the right of access to the courts, it must be restrictively interpreted in a way which least intrudes on that right.”
However, mere persistence is not sufficient to entitle an applicant to an order in terms of the Act. It is also necessary for an applicant to demonstrate that a sufficient number of cases were instituted without reasonable grounds. In State Attorney v Sithebe 1961 (2) SA 159 (N), it was held that the court will, in the exercise of its powers, consider the general character and result of the actions instituted. Even though the number of occasions may be comparatively small, there may be exceptional circumstances that justify the making of the order.
Proceedings prospective in nature
The relief provided for in section 2(1)(b) of the Act is prospective in nature and seeks to protect a person against the institution of future persistent and ungrounded legal proceedings. The Act does not afford protection against existing vexatious proceedings, or an abuse of process in respect of legal proceedings that have already been instituted.
As the Act cannot be used to deal with such matters, applicable common law principles and the courts’ inherent powers must be utilised to stay, strike out or otherwise deal with vexatious proceedings which have already been instituted, and which constitute an abuse of process, or bring the administration of justice into disrepute.
It is clear from the aforesaid that the constitutional right of access to courts is not a license for litigants to institute frivolous or vexatious proceedings. The Act serves to limit the right of access to courts in terms of section 34 of the Constitution, so as to protect and secure this right for those with meritorious disputes.