Brief Summary

Family Law — Divorce — Vexatious litigant — Application by first and second applicants to declare the respondent a vexatious litigant under section 2(1)(b) of the Vexatious Proceedings Act, 3 of 1956 — Respondent, the former wife, engaged in persistent and unmeritorious litigation, disregarding court orders and settlement agreements, and causing harm to minor children — Court satisfied that the respondent's conduct constituted vexatious litigation — Respondent declared a vexatious litigant and prohibited from instituting further legal proceedings without leave of the court.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerned an application in the High Court for relief under section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956, seeking to have the respondent declared a vexatious litigant and to restrict her ability to institute further legal proceedings without prior leave of the court.

The first applicant (N.K) and second applicant (O.K) brought the application against the respondent (B.B, previously K). The respondent was the first applicant’s former spouse, and the second applicant was the first applicant’s current spouse. The dispute arose in the context of long-running post-divorce litigation concerning, among other matters, the parties’ two minor children.

The court described the matter as having its genesis in an extensive litigation history between the parties, spanning multiple fora and including repeated civil proceedings and criminal complaints. The application was strenuously opposed by the respondent. The hearing took place on 22, 24 and 26 May 2023, and the judgment was delivered on 15 August 2023.

The general subject-matter of the dispute was whether the respondent’s repeated litigation conduct amounted to persistent, unmeritorious proceedings justifying a statutory limitation on her right of access to courts, particularly in circumstances where the court considered the ongoing litigation to be harmful to the minor children.

2. Material Facts

The parties were married on 18 December 2004, and the marriage was dissolved in April 2017. Two minor children were born of the marriage, who were 13 and 12 years old at the time of judgment.

Following the divorce, primary residence of the minor children was initially awarded to the respondent, but this position later changed after multiple court processes and assessments. The court recorded that the first applicant ultimately held primary residence of both minor children, pursuant to various rulings and the involvement of experts who conducted forensic assessments. The judgment located the dispute within a broader history that included allegations by the respondent of sexual abuse of the minor children, although the court did not purport to determine the merits of such allegations in this application.

From approximately April 2018, the respondent engaged in repeated litigation against the applicants, commencing with proceedings in the Benoni Children’s Court and continuing with urgent High Court applications and further proceedings. The respondent also laid numerous criminal charges against the first and second applicants. The court recorded that, even during the week the application was heard, other proceedings involving the same parties were ongoing in a lower court.

The court treated as material that the respondent’s criminal complaints had, on numerous occasions, been found to be untrue, and that there were existing rulings and findings in both upper and lower courts supporting the continued primary care of the minor children by the first applicant. The judgment further recorded that experts engaged in assessments supported that position and raised serious concerns regarding the respondent’s parenting.

The court also relied on the circumstance that, during the week of the hearing, the respondent allegedly unlawfully refused to return one of the minor children to the first applicant’s care and failed to allow the child to attend school, and that the child appeared still not to have been returned at the time of writing. The judgment treated this as part of a pattern of conduct in which the respondent, in the court’s view, repeatedly disregarded settlement agreements and court orders and continued to initiate or oppose proceedings in a manner that caused ongoing harm.

The court did not make findings on the merits of the underlying custody disputes, nor did it determine the truth of the allegations of abuse. It instead treated the pattern of repeated litigation, repeated unsubstantiated complaints, and continued defiance of existing orders and processes as the factual basis relevant to the statutory enquiry under the Vexatious Proceedings Act.

3. Legal Issues

The central legal question was whether the respondent had persistently and without any reasonable ground instituted legal proceedings in a manner contemplated by section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956, thereby justifying an order that she may not institute further proceedings without the leave of the court.

A related legal question concerned the appropriate balance between the statutory mechanism to curb abusive litigation and the respondent’s constitutional right of access to courts under section 34 of the Constitution of the Republic of South Africa, 1996, particularly given that a vexatious litigant order restricts a person’s ability to litigate without prior judicial screening.

The dispute primarily concerned the application of legal standards to a factual pattern spanning multiple proceedings over several years. It also involved an evaluative assessment of whether the litigation conduct amounted to abuse and whether continued proceedings were likely to persist absent intervention. The court further treated the best interests of the minor children as a materially relevant consideration in assessing the need for regulatory intervention to prevent ongoing harm through continued litigation.

4. Court’s Reasoning

The court began by identifying the purpose and requirements of section 2(1)(b) of the Vexatious Proceedings Act, namely that it provides relief to persons subjected to continued harassment and costs arising from persistent and unmeritorious litigation. The statutory mechanism empowers a court to require that a litigant obtain leave before instituting proceedings, and it provides that leave may be granted only if the proposed proceedings are not an abuse of process and there is a prima facie ground for them.

In addressing the meaning of vexatious litigation, the court relied on the approach described in HO v FA (which in turn referenced Fisheries Development Corporation of SA Ltd v Jorgensen), where vexatious proceedings were described as frivolous or improper proceedings instituted without sufficient ground and for the purpose of annoyance, and where abuse was linked to improper use of court process, including use for an ulterior motive.

The court then engaged with the constitutional dimension by reference to section 34 of the Constitution and the Constitutional Court’s decision in Beinash and Another v Ernst and Young and Others, which upheld the constitutionality of section 2(1)(b) on the basis that, although it limits access to court, the limitation is reasonable and justifiable. The judgment emphasised that the statute regulates rather than absolutely prohibits access to court, because the affected litigant retains an “escape hatch” through the ability to obtain leave where a prima facie case exists and the contemplated proceedings would not be abusive. The court treated this as a mechanism allowing a proportional balancing between protecting innocent parties and safeguarding the administration of justice, on the one hand, and preserving access to court on the other.

The court also relied on authority (including Bisset and Others v Boland Bank Ltd and Others, cited through PricewaterhouseCoopers Inc v Pienaar and Others) for the proposition that the main purpose of the Act is to prevent the institution or continuation of vexatious proceedings without reasonable grounds and to protect courts and the public from wasteful and abusive litigation.

Applying these principles, the court considered the overall history between the parties as relevant to whether a reasonable person could expect to obtain relief under the circumstances, and whether the respondent’s litigation conduct was persistent and lacked reasonable grounds. Without determining the merits of every underlying dispute, the court treated the respondent’s repeated recourse to proceedings and criminal complaints—coupled with findings that complaints were repeatedly untrue, and with existing court determinations supporting the first applicant’s primary residence—as indicative of persistent, unjustified litigation and opposition.

The court placed weight on the impact of the ongoing litigation on the minor children and the indications in expert material (referred to in general terms) that there was an urgent need for intervention. In this context, the court reasoned that the statutory purpose of preventing abuse of court process also extends to circumstances where repeated litigation is advanced under the banner of children’s interests but operates, in effect, to cause continuing harm. The court regarded the respondent’s conduct as reflecting a likelihood of continued litigation indefinitely unless a restricting order was imposed, and it treated intervention as at least serving the best interests of the minor children by seeking to regulate further litigation and associated trauma.

The court also addressed an incident where correspondence from the respondent’s attorney was sent to the judge’s registrar without including the applicants, which the court characterised as inappropriate. The court further stated that it could not vary existing residence orders or remove a parental coordinator within the present application, and treated this as reinforcing that continued attempts to relitigate resolved issues should be regulated through the statutory mechanism rather than proliferating proceedings.

5. Outcome and Relief

The court granted the application and declared the respondent a vexatious litigant in terms of section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956.

It ordered that no legal proceedings may be instituted by the respondent against the first or second applicants (or any related party to them) in any court or inferior court without leave of the High Court (or a judge of that court). The order specified that leave may not be granted unless the court is satisfied that the intended proceedings are not an abuse of process and that there is a prima facie ground for them.

In addition, the court directed that the order be brought to the attention of the South African Police Service in the event that the respondent lays further criminal charges against the first and/or second applicants.

The respondent was ordered to pay the costs of the application.

Cases Cited

HO v FA 2021 JDR 2727 (GJ) (unreported).

Fisheries Development Corporation of SA Ltd v Jorgensen 1980 (4) SA 156 (W).

Beinash and Another v Ernst and Young and Others 1999 (2) SA 116 (CC).

Bisset and Others v Boland Bank Ltd and Others 1991 (4) SA 603 (D).

PricewaterhouseCoopers Inc v Pienaar and Others (1845/2021) [2021] ZAWCHC 184 (10 September 2021).

Legislation Cited

Vexatious Proceedings Act 3 of 1956, section 2(1)(b).

Constitution of the Republic of South Africa, 1996, section 34.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the respondent’s conduct, viewed holistically against the parties’ extensive litigation history, demonstrated the type of persistent and unreasonably grounded litigation contemplated by section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956, warranting the imposition of a leave requirement for future proceedings.

The court further held, consistently with Constitutional Court authority, that such an order constitutes a regulation of access to court rather than an absolute prohibition, because the respondent retains the ability to institute proceedings upon demonstrating that they are not abusive and that a prima facie case exists.

The court also held that the circumstances warranted intervention to prevent continued harm, including harm to the minor children, arising from ongoing and repeated litigation conduct.

LEGAL PRINCIPLES

Section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 empowers a court to restrict a litigant from instituting proceedings without prior leave where the court is satisfied that the litigant has persistently and without reasonable ground instituted legal proceedings, and where a leave mechanism ensures only non-abusive proceedings with a prima facie basis may proceed.

“Vexatious” litigation encompasses proceedings instituted without sufficient grounds and for an improper purpose, including harassment or annoyance, and may also include proceedings continued for the sole purpose of causing such annoyance; “abuse of process” denotes misuse of the court’s procedures for improper or ulterior purposes.

Although a vexatious litigant order limits the constitutional right of access to courts under section 34 of the Constitution, the limitation is constitutionally permissible where it is reasonable and justifiable, particularly because the statute provides a flexible “escape hatch” through the leave requirement and thus regulates rather than prohibits access to court.

In determining whether litigation is vexatious in the statutory sense, the court may consider the whole history of the parties’ litigation and assess whether there is a reasonable expectation of obtaining relief, rather than focusing narrowly on a single proceeding in isolation.

The statutory purpose of preventing abuse of court process and protecting innocent parties can be engaged in family-law contexts where persistent litigation, and the use of allegations concerning minor children as a basis for repeated proceedings, produces continuing harm and warrants judicial regulation through the Act’s mechanisms.

N.K and Another v B.B (30472/21) [2023] ZAGPJHC 1025 (15 August 2023)