A tale as old as time is standing up after getting knocked down, however the notorious second, third and fourth bite at the cherry might come back to haunt you.

Section 2(1)(b) of the Vexatious Proceedings Act (“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 an inferior court, whether against the same person or against different persons, the court may, after hearing that other 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 that court, or any judge thereof, as the case may be, and such leave shall not be granted unless the court or Judge 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.”

Have you ever felt like a case instituted against you was done persistently and without any reasonable ground?  If indeed, kindly contact our offices if you are in need of expert advice.

In the case of NDC v GC[1] the court sends a strong message to vexatious litigants and confirms the requirements for a person to be declared a vexatious litigant.

The Facts

The Applicant and the Respondent married in 2001 and two children were born from the marriage.  A divorce and remarriage were followed by a protection order brought by the Applicant, as well as second divorce proceedings. 

The Respondent brought various applications against the Applicant which in turn led the Applicant to bring an application for vexatious litigation.

The Applicant argued that the Respondent’s applications were not bona fide as they were aimed at harassing and annoying the Applicant.  She further contended that the Respondent’s applications had no merits and that it was aimed at financially draining her.  Furthermore, the Applicant submitted that the Respondent is acting mala fide in not paying the costs orders against him and refusing to comply with the notice in terms of Rule 47.

The Respondent on the other hand alleged that the Applicant failed in all eight cases to state facts upon which the allegations of vexatious and frivolous litigation rest.  The Respondent also disputed that the Applicant is entitled to security for costs before any matter is heard and stated that the Applicant’s application is fundamentally flawed and stands to be dismissed.  The Respondent was of the opinion that there are factual disputes regarding the various issues that require adjudication, and therefore his right to access the court cannot be curtailed. 

The Respondent also referred to section 34 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), which provides that everyone has the right to have any dispute decided in a fair public hearing before a court, or where appropriate, another independent and impartial tribunal or forum. 

The Law

The court held that the requirements to prove that there has been vexatious litigation are: the Respondent has persistently instituted legal proceedings and that such proceedings have been without reasonable grounds.  The proceedings must be vexatious in that it must be annoying, irritating, distressing, or harassing and must be taken without reasonable grounds, and the intent of the Respondent should be judged objectively.

The Applicant should prove that the Respondent has knowingly, deliberately and repetitively continued with his vexatious conduct.  It is not necessary to prove that the vexatious litigant knows that their conduct is vexatious but rather that a reasonable person in those same circumstances would believe the conduct to be vexatious.

In paragraphs 17 to 24 the court discusses each application of the Respondent in detail and state why it were unnecessary and vexatious. 

The court also focused on the Constitutional argument of the Respondent and concluded that a limitation on a person’s right of access to court should be reasonable and justifiable and that the Respondent’s right in terms of section 34 of the Constitution can be limited in terms of section 36 of the Constitution.  The Applicant should ultimately be protected from the abusive litigation aimed at punishing her and depleting her finances without recourse in the process.

The Conclusion

Justice prevailed in the end as the court held that the Respondent is a vexatious litigant in terms of the Act and that he should provide security in the amount of R120 000.00 as per the notice in terms of Rule 47.

A party facing an onslaught of vexatious litigation have a wide range of remedies available and should seek legal advice in order to put an end thereto.

[1] Case no: 14367/2021.