L.M.W v C.R.W (12866/2014) [2025] ZAWCHC 395 (1 September 2025)

Case Note

W[…] v W[…] (Case No 12866/2014) [2025] ZAWCHC 392 (1 September 2025) – High Court of South Africa, Western Cape Division, Cape Town, per Nuku J

Reportability

This judgment is of reportable significance because it supplies a detailed exposition of the statutory and constitutional framework governing the declaration of a party as a vexatious litigant under section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956. The decision revisits and applies the Constitutional Court’s guidance in Beinash and Another v Ernst & Young and Others 1999 (2) SA 116 (CC), thereby clarifying the threshold for “persistent and without reasonable ground” litigation after a final appellate pronouncement.

Moreover, the judgment illuminates the interaction between a party’s constitutional right of access to courts in section 34 of the Constitution and the court’s obligation to protect both the administration of justice and opposing parties from abuse of process. By refusing to graft additional pre-conditions onto the leave-to-sue mechanism, the court demonstrates the limits of judicial discretion where further access-to-court constraints would amount to an unjustifiable limitation under section 36 of the Constitution.

Finally, the ruling makes an instructive contribution on the procedural use of Uniform Rule 47 notices for security for costs, emphasising the importance of temporal compliance and fair notice. In refusing premature security orders, the judgment cautions practitioners against conflating distinct procedural remedies in urgent settings.

Cases Cited

The court’s reasoning principally engages Beinash and Another v Ernst & Young and Others 1999 (2) SA 116 (CC), the leading authority on the constitutionality of vexatious-litigant orders. It also relies on Cohen v Cohen and Another 2003 (1) SA 103 (C) for the two-part test that an applicant must satisfy under section 2(1)(b) of the Act. Additional reference is made to the series of prior interlocutory and appellate matters between the same parties, including the unreported divorce and Rule 46A execution orders, which form the factual substratum for the finding of persistence.

Legislation Cited

The judgment turns on the interpretation and application of the Vexatious Proceedings Act 3 of 1956. It engages sections 9, 34, 36 and 165(2) of the Constitution of the Republic of South Africa, 1996. Indirectly, the court also considers section 1(c) of the Constitution in the respondent’s submissions on the rule of law.

Rules of Court Cited

The court discusses Uniform Rule 47 (security for costs) and the implications of Uniform Rule 46A (judicial oversight of sales in execution) as part of the background litigation history.

HEADNOTE

Summary

The applicant sought confirmation of a rule nisi declaring the respondent a vexatious litigant, interdicting him from instituting further proceedings without leave, and compelling him to furnish security for costs in two pending matters. The respondent—who had unsuccessfully assailed a 2020 divorce order through more than ten applications, petitions and collateral proceedings culminating in refusal of leave by the Constitutional Court—opposed the relief on the basis that his litigation was constitutionally protected, that fraud infected the divorce proceedings, and that the rule nisi was procedurally flawed.

Nuku J held that the applicant had proved both elements of section 2(1)(b) of the Vexatious Proceedings Act: persistent litigation and absence of reasonable grounds after the Constitutional Court’s final pronouncement. The court therefore confirmed the declaration of vexatiousness and the corresponding leave-to-sue requirement.

However, the court declined to attach additional pre-conditions (full compliance with the divorce and costs orders) to the leave-to-sue regime, holding that such conditions would constitute an unjustifiable additional barrier to court access beyond what the Act itself authorises. Likewise, the court discharged the portion of the rule nisi compelling security because the Rule 47 notice period had not expired when the application was launched, rendering that relief premature.

Key Issues

The first key issue was whether the respondent’s cascade of litigation after the Constitutional Court’s refusal of leave constituted the requisite persistent and groundless conduct contemplated by section 2(1)(b) of the Vexatious Proceedings Act. The inquiry demanded both a quantitative and qualitative assessment of the respondent’s litigation pattern.

A second issue concerned the constitutional permissibility of imposing further conditions—over and above the Act’s leave-to-sue mechanism—requiring the respondent to satisfy outstanding judgments and costs orders before instituting any fresh proceedings. The question turned on the proper application of the limitation clause in section 36 of the Constitution.

The third issue was the procedural propriety of ordering security for costs under Rule 47 in circumstances where the respondent’s ten-day compliance period had not yet run its course at the time the rule nisi was issued.

Held

The court found, first, that the respondent’s post-appeal litigation was manifestly persistent and devoid of reasonable prospects, squarely satisfying section 2(1)(b). Accordingly, the declaration of vexatiousness and the leave-to-sue requirement were confirmed.

Secondly, the court held that the applicant’s proposed pre-conditions would operate as an impermissible absolute barrier to court access, lacked a source in law of general application, and did not serve the narrow statutory purpose of curbing vexatious proceedings. Those conditions were therefore excised from the order.

Thirdly, the court held that the security-for-costs component of the rule nisi was issued prematurely and in conflict with Rule 47’s procedural safeguards; it was accordingly discharged. Costs followed the substantial success of the applicant but only on the ordinary party-and-party scale, inclusive of counsel’s fee on scale B.

THE FACTS

The parties are former spouses. A final divorce order granted on 26 August 2020 imposed proprietary and costs obligations on the respondent. Dissatisfied, he pursued every available appellate avenue, culminating in an unsuccessful application for leave to appeal to the Constitutional Court.

Undeterred by the apex court’s refusal, the respondent launched a multiplicity of fresh proceedings aimed at rescinding, staying, varying or otherwise circumventing the divorce order. These included urgent applications in the High Court, petitions to the Supreme Court of Appeal, maintenance-court variations, a domestic-violence application intended to block execution, and an impending rescission application set down for September 2025. None succeeded, and costs orders against him remained unsatisfied.

Parallel to these court processes, the respondent inundated professional bodies with complaints against judges, attorneys, advocates and experts, coupled with threats of exorbitant civil claims. He also attempted to mobilise a family trust—which the divorce court had earlier found to be his alter ego—to litigate against the applicant, ostensibly to undermine execution against trust property.

Facing continual legal harassment and non-compliance with the divorce order, the applicant brought an urgent counter-application in June 2025. Le Grange J issued a rule nisi granting interim relief, including a provisional declaration of vexatiousness and an order for security for costs, and set the matter down for argument on 5 August 2025.

THE ISSUES

The court was required to decide whether, on the return day, the provisional orders should be confirmed, amended or discharged. This involved determining first whether the respondent’s litigation history met the statutory test for vexatiousness.

Secondly, the court needed to evaluate the constitutionality and propriety of attaching additional conditions—namely compliance with prior orders and payment of taxed costs—before the respondent could obtain leave to sue in future. The enquiry necessarily engaged section 34 and section 36 of the Constitution.

Thirdly, the court had to assess whether the security-for-costs order under Rule 47 had been prematurely granted, given that the respondent’s time to comply with the notice had not expired when the rule nisi was issued.

ANALYSIS

Nuku J began by rehearsing section 2(1)(b) of the Vexatious Proceedings Act and the two-stage test endorsed in earlier authority. The court emphasised that “persistence” is proven not only by frequency but by the litigant’s unrelenting refusal to accept final judicial pronouncements. By cataloguing eleven distinct, unsuccessful matters launched after the Constitutional Court’s refusal of leave, the judge found the persistence element self-evident.

Turning to the “without reasonable ground” requirement, the court reasoned that once the highest court has spoken, further attempts to alter the same outcome lack any plausible foundation. The respondent’s recourse to maintenance and domestic-violence jurisdictions to undo a High Court order was particularly telling. His allegations of fraud and constitutional violations were unsubstantiated and could not retrospectively confer reasonableness on manifestly abusive proceedings.

The court then interrogated the applicant’s request to tether the respondent’s future leave-to-sue entitlement to full satisfaction of the divorce and costs orders. While sympathetic to the applicant’s frustration, Nuku J held that such conditions would thrust an additional, indefinite barrier between the respondent and the courts. This would overstep the limits of section 2(1)(b), which already supplies a tailored mechanism—judicial pre-screening—to filter out future abuse while permitting bona fide claims.

Addressing the security-for-costs order, the judge noted that Uniform Rule 47 affords a respondent ten days either to provide security or to challenge the demand. Because the rule nisi was sought and obtained within that period, the respondent had been deprived of his procedural entitlement. The applicant’s argument that separate proceedings would be burdensome could not cure the premature invocation of the rule. Procedural fairness therefore required that portion of the rule nisi to be discharged.

REMEDY

The court confirmed the declaration that the respondent is a vexatious litigant in terms of section 2(1)(b) of the Vexatious Proceedings Act. Consequently, he may not institute any new proceedings against the applicant in any High Court or inferior court without first obtaining leave of the Western Cape High Court.

All proposed ancillary conditions requiring prior compliance with the divorce and costs orders were struck out. The interim directions compelling the respondent to furnish R100 000 security in each of two pending applications, and permitting dismissal of those applications if security was not provided, were similarly set aside as premature.

Costs were awarded in favour of the applicant on the ordinary party-and-party scale, including counsel’s fee on scale B, reflecting her substantial—though not complete—success.

LEGAL PRINCIPLES

A litigant may be declared vexatious under section 2(1)(b) of the Vexatious Proceedings Act if the applicant demonstrates, first, persistent institution of proceedings and, secondly, absence of reasonable ground for such proceedings. Persistence may be inferred from a consistent pattern of litigation aimed at the same objective in the face of repeated failure, especially after an apex-court ruling.

The constitutional right of access to courts in section 34 is not absolute; it may be limited by law of general application, such as the Vexatious Proceedings Act, provided the limitation is reasonable and justifiable under section 36. However, additional court-imposed hurdles—such as conditioning leave-to-sue on prior satisfaction of unrelated orders—must themselves pass constitutional muster and may not amount to an absolute bar.

Uniform Rule 47 embodies procedural fairness by affording a ten-day period for a litigant to furnish or contest security for costs. Premature curtailment of that period offends the audi alteram partem principle and will not be sanctioned, even where broader abuse-of-process concerns are present.

In sum, the judgment reaffirms that courts possess robust remedial powers to shield parties from vexatious litigation yet must deploy those powers strictly within statutory and constitutional limits, ensuring procedural fairness and avoiding the grafting of extraneous, over-broad barriers to judicial access.