Cohen v Cohen and Another (4383/02) [2002] ZAWCHC 45; [2002] 4 All SA 21 (C); 2003 (1) SA 103 (C) (26 August 2002)

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[2002] ZAWCHC 45
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Cohen v Cohen and Another (4383/02) [2002] ZAWCHC 45; [2002] 4 All SA 21 (C); 2003 (1) SA 103 (C) (26 August 2002)

in
the high court of South Africa
(cape of good hope provincial division)
Case No 4383/02
In the matter between:
brenda cohen
Applicant
and
roy selwyn cohen
First Respondent
the magistrate, maintenance court
Cape Town
Second
Respondent
judgment delivered: 26 august 2002
Griesel
j:
In this application the
applicant
is
seeking an order against the first respondent in terms of
sec
2(1)(b)
of the Vexatious Proceedings Act 3 of 1956 (
‘the
Act’
). She also seeks an order directing that proceedings
instituted by the first respondent against her in the maintenance
court in
Cape Town under Case No 01/816/95 be post­poned pending
the determination of this application. The relevant maintenance
court
magistrate has formally been joined here­in as second
respondent, but does not oppose the application and no relief is
claimed
against her. I shall accordingly refer to the first
respondent herein simply as
‘the
respondent
’
.
The Facts
The applicant, who is presently an estate agent, was formerly
married to the respondent, a businessman, for some 21 years. On 10
February 1995 this court granted a decree of divorce, incorporating
the terms of a consent paper, entered into between the parties
on 4
November 1994. In terms of the consent paper, custody of the two
minor children born of the marriage was awarded to the
applicant
.
The respondent was obliged to pay maintenance to the
applicant
in respect of the minor children. In addition, the
respondent
had to pay maintenance to the applicant personally at the rate of
R3 000 per month plus medical costs, servicing costs in
respect
of her motor vehicle, replacement thereof every five years, as well
as levies payable in respect of her townhouse. The
maintenance
obligation would endure until her death or remarriage,
‘or
until she should live together as husband and wife with another man
for a period aggregating more than six months in any calendar
year
or alternatively nine months in any period of three years’
(
‘the
dum casta
clause’
).
Notwithstanding the terms of the consent paper, the minor children
remained in the
de facto
custody of the
respondent
after the divorce
. The position was later regularised when
the
respondent
obtained an order by
consent, awarding custody to him. Apart from that application, the
parties have been embroiled in numerous
court applications since
then, most of which related to the respondent’s obligations to
maintain the applicant. For present purposes
the following brief
synopsis will suffice.
In November 1995, some nine months after the divorce,
the
respondent approached the maintenance court, seeking to discharge
his maintenance obligations in respect of the minor children
as well
as the applicant. With regard to maintenance for the
applicant
,
the respondent asserted that the very reason for having agreed to
personal maintenance for her had fallen away, because the minor
children did not live with the applicant. On 23 February 1996, the
court discharged the maintenance order in respect of the children,
but refused the application to discharge the maintenance obli­gation
in respect of the
applicant
.
The
respondent
appealed against the latter
finding to this court, but on 22 November 1996 his appeal was
dis­missed with costs, the court
(per Van Den Heever J,
Chetty J con­curring) finding that there was
‘no merit
in the appeal’
.
Some five months later, on 11 April 1997,
the
respondent
launched a fresh application in the main­tenance court, once
again seeking to discharge his maintenance obligation towards
the
applicant
. The
applicant
brought a counter-application for an increase in the amount of
maintenance payable. On 15 January 1998 the court refused to
discharge
the High Court order, but reduced the monthly amount from
R3 000 to R1 500 per month.
Shortly afterwards, on 3 April 1998 the respondent brought an
applica­tion to this court for variation of the custody order
in
respect of the two minor children, who had been living with him
since the divorce. A deed of settle­ment to this effect
was
signed by both parties and an order was granted by agreement on 22
April 1998.
Having obtained a formal custody order in respect of the children,
the
respondent
launched another
appli­cation in the maintenance court a month later, claiming
payment from the
applicant
in an amount of
R4 000 per month as maintenance for each of the children. This
amount, which exceeded the
applicant
’s
monthly income at the time, was reduced at the hearing to R1 000
per month. The
applicant
again brought a
counter-application for an increase in the maintenance order in
respect of herself. On 21 December 1998 the maintenance
court
granted the counter-application by increasing the appli­cant’s
maintenance from R1 500 to R3 500 per month,
but declined
to make any order in respect of the
respondent
’s
claim for maintenance in respect of the children.
Less than a week after this judgment the
respondent
approached the main­tenance court with an identical application,
namely a claim for maintenance for the minor children at the
rate of
R1 000 each, as well as an order discharging his maintenance
obligation in respect of the
applicant
.
The matter came before the maintenance officer on 8 January 1999.
The record contains an endorsement to the effect that the
respondent
sought main­tenance
‘i.r.o. same application finalised on
21.12.98. Advised to go on appeal. Pro­ceedings stopped.’
The respondent followed this advice and on 20 January 1999 he noted
an appeal to this court against the orders granted on 21 December
1998. However, when the appeal was set down for hearing on 18
February 2000 and heads of argument were called for, the
respondent’s attorneys indicated that the
respondent
was prepared to withdraw the appeal on condition
that each party would pay their own costs. The applicant reluctantly
accepted
this proposal and the necessary notice of withdrawal of the
appeal was filed on 23 December 1999.
Less than a month later, on 19 January 2000 the respondent
instituted an action in this court, relying on the
dum casta
clause in his claim for a declara­tor that his main­te­nance
obligations in respect of the
applicant
had ceased on the basis that she was living as husband and wife with
another man. However, on 30 October 2001 the action was dis­missed
by Comrie J, having heard argument on a special plea to the
effect that the
dum casta
clause had fallen away as a result
of the maintenance court order of 21 December 1998.
1
Subsequently, on 14 December 2001, the trial judge granted the
respondent
’s application for leave to
appeal to the Supreme Court of Appeal and the appeal is presently
pending in that court.
On 19 March 2002, and in parallel with the prosecution of the
appeal, the respondent filed another complaint with the maintenance
officer, claiming once again the dis­charge of the existing
maintenance order in favour of the
appli­cant
.
The respondent contends in his application that he requires a
dis­charge of his maintenance obligations because
‘due to
changed circum­stances’
, he can­not afford to pay it.
The
applicant
was accordingly sub­poenaed
in terms of
sec 9(2)
of the
Maintenance Act, 1998
to appear in the
maintenance court on 19 April 2002.
It was against this background that the
applicant
launched the present appli­cation, alleging that the proceedings
instituted by the
respondent
are
vexatious, as contemplated by the Act. She accordingly seeks an
order in terms of sec 2(1)(b) of the Act, directing that
‘save
for the appeal to the Supreme Court of Appeal pending under Case No
010/2002 (CPD Case No 257/2000), no legal proceedings
shall be
instituted by first respondent against
applicant
in any court or any inferior court without the leave of this
Honourable Court, or any Judge thereof’
.
Relevant Legal Principles
At common law our courts enjoy an inherent power to strike out
claims that are vexa­tious, by which is meant
‘frivolous,
improper, instituted without sufficient ground, to serve solely as
an annoyance to the defendant’
.
2
As a complement to the common law, the Act provides the court with a
mechanism for preventing the institution of vexatious legal
proceedings. The present application has been brought in terms of
sec 2(1)(b)
of the Act, which provides as follows:
‘(b) 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 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 the Act, as well as its constitutionality, was
discussed by the Constitutional Court in
Beinash and another v
Ernst & Young and others
.
3
With regard to the purpose of the Act the Court held as follows:
4
‘This purpose is “to put a stop to persistent and ungrounded
in­stitution of legal proceedings”. The Act does so by

allowing a court to screen (as opposed to absolutely bar) a “person
(who) has per­sistently and without any reasonable ground
instituted legal pro­ceedings in any Court or inferior court”.
This screening mecha­nism is necessary to protect at least
two
important interests. These are the interests of the victims of the
vexatious litigant who have repeatedly been subjected to
the costs,
harassment and embarrass­ment of unmeritorious litigation; and
the public interest that the functioning of the courts
and the
administration of justice proceed unimpeded by the clog of
groundless proceedings.’
Discussion
From the aforegoing it appears that the
applicant
has to meet two threshold requirements in order to obtain relief in
terms of sec 2(1)(b) of the Act: she must show, firstly, that
the
respondent
has
‘persistently’
instituted legal proceedings and, secondly, that such proceedings
have been
‘without reasonable ground’
.
With regard to the first requirement, it appears from the synopsis
that during a period of some 6½ years since November 1995 no
fewer
than nine different processes had been initiated by the
respondent
against the
applicant

five of them in the maintenance court and all of them aimed at
discharging his maintenance obligations towards her.
5
At no stage was there more than a five-month clear period that had
elapsed without the threat of some court pro­cedure hanging
over
her head. Having regard purely to the frequency and timing of
pro­ce­dures, it is clear, in my view, that the
respondent
has certainly been
‘per­sistent’
.
As far as the second requirement is concerned, it will appear from
the above synopsis that, with one or two insignificant exceptions,
the
respondent
found himself on the losing
side in the ongoing saga between the parties. Although it may be
accepted, as counsel for the
respondent
submitted, that unsuccessful litigation is not necessarily
tantamount to vexatious litigation, the overall pattern becomes
important
where there is some history of litigation between the same
parties.
The
respondent
’s behaviour in relation
to the latest application to the maintenance court is a telling
example of his mindset. While his appeal
to the Supreme Court of
Appeal against Comrie J’s judgment is pending, he launches an
application in the main­te­nance
court, once again seeking
the com­plete discharge of his mainte­nance obligation. In
the papers before the maintenance
court he pleads poverty, claiming
that due to
‘changed circum­stances’,
he cannot
afford to pay the
applicant
the
main­te­nance to which she is entitled. At the same time,
however, the
respondent
dis­closes a
property portfolio worth (according to him) R5 million. When
asked by the
applicant
’s attorney for
supporting documentation and infor­mation to substantiate his
claims of impecuniosity, he deliberately chooses
to ignore such
request. The explanation furnished in his answering affidavit is
un­convincing, to say the least. He states:
‘I did receive [the letter from the
applicant
’s
attorney]. However, my attitude was that I was not obliged to
conduct a trial by corres­pondence and that I would place
my
evidence before the magis­trate. … In the event, rightly or
wrongly, I took the view that the relevant evidence should
be placed
before the court, thereby avoiding me becoming involved in a
confrontation with
applicant
’s attorney.
In short I did not want to feel disadvantaged. It was not a case of
my being obstructive or unco-operative…’
The only ‘explanation’ of his alleged changed circumstances
furnished by the
respondent
is contained
in a letter from his accountant, annexed to the answering affidavit
in these proceedings.
6
It is dated 17 April 2002 (i.e.
after
the launching of the
maintenance court proceedings under Case No 01/816/95) and under the
heading
‘Re: Analysis of your personal financial statements for
the years ended 28/02/2000 and 28/02/2001’
, it baldly records:
‘According to the abovementioned financial statements drafted by
our firm, your net asset position deteriorated in the amount
of
R345129,00 during the period 1/03/2000 to 28/02/2001.
Additionally, the annual financial statements for the year
28/02/2001 reflect losses amounting to R143113.’
This letter raises more questions than it answers. What it does not
do, is provide support for the
respondent
’s
contention that he is presently unable to afford to pay maintenance
for the
applicant
in an amount of some
R4 000 per month. It would have been a simple matter for the
respondent, had the facts supported him,
to controvert any inference
that the 2002 proceedings are vexatious by simply furnishing a
detailed schedule of his income, expenses,
assets and liabilities in
order to demonstrate,
prima facie
at least, his inability to
afford his maintenance obli­gations. His refusal to do so may
not be fatal to his eventual application
to the maintenance court.
It certainly does not assist him in these proceedings in his efforts
to try and establish his
bona fides
and the reasonableness of
the liti­gation instituted by him.
When this particular instance of apparent unreasonableness was
raised with counsel for the
respon­dent
during the course of argument herein, counsel was driven to concede
that perhaps the
respondent
’s decision
to launch the 2002 maintenance application as and when he did, had
been ill-advised, even
‘impetuous’.
After a short
adjournment to take instructions, counsel an­nounced in open
court that the
respondent
had undertaken
to withdraw the 2002 application. He further gave the assurance on
behalf of the
respondent
that no further
maintenance applications would be launched against the
applicant
until the
final determination of the pending proceedings in
respect of the
dum casta
clause. This belated under­taking
was not accompanied, how­ever, by any tender for wasted costs
occasioned by the present
application.
Having regard to the overall pattern of litigation between the
parties, coupled with the
respondent
’s
success rate (or lack thereof) in the past litigation, the inference
is irresistible, in my view, that such litigation had,
by and large,
been instituted and prose­cuted
‘without any reasonable
ground’.
This inference is strengthened when one has regard to the
surrounding circumstances. Firstly, the respondent is a relatively
wealthy
man, who has not needed to obtain fulltime employment since
selling his diamond cutting business for R3 million in 1987 at
the age of just over 40. He continues to live
‘in a luxurious
mansion’
7
in an upmarket suburb of Cape Town. According to the
applicant
(who, as mentioned above, is an estate agent) the
respondent
’s
fixed properties are worth between R5,5 and R7,5 million. (The
respondent
himself estimates the value of
such properties at R5 million.)
The
applicant
has given numerous examples
of obstructive behaviour and breaches by the
respondent
of his maintenance obligations over the years. I do not regard it as
necessary for purposes hereof to burden this judgment with
a recital
of specific examples. Suffice it to say that the
respondent
him­self, in his answering affidavit, concedes in the face of
the history of the matter that he and the
applicant
‘have both at times displayed behaviour which might be fairly
labelled intransigent’
.
8
In my view, this concession amounts to an understatement. It is
abundantly clear from the papers that the
respondent
is driven by a desire to rid himself of his main­tenance
obligations vis-à-vis the
applicant
. In
order to achieve that pur­pose, the
respondent
has em­ployed various schemes and stratagems, some of which can
only be described as abuses of the process of the courts. The
applicant
’s evidence has a ring of truth
about it where she quotes the
respon­dent
as having threatened:
‘As long as there is breath in my body, I
will fight you’.
To these considerations must be added the fact that the
respondent
has, by and large, enjoyed a ‘free run’, in the sense that he
has not been subject to any adverse costs orders, simply because
the
chosen forum has been the main­tenance court. The
applicant,
conversely,
has been obliged to appoint counsel and attorneys
to represent her each step along the way and to incur legal expenses
in the process
in order to protect her rights, without any hope of
recovering same. According to the
applicant
,
she has spent some R60 000 in legal expenses in defending
proceedings instituted by the
respondent
in the maintenance court.
Added to the aforegoing, is the further consideration, highlighted
by the
applicant
, that on each occasion
when the
applicant
had to appear in the
main­tenance court, the
respondent
exercised his right to subpoena her employers to come to court in
order to produce relevant information and documentation regarding
her income. It requires only a moment’s thought to imagine the
intense nuisance value for people in those positions in repeatedly
having to waste valuable hours in the corridors outside the
mainte­nance court.
Having regard to the history as a whole as it appears from the
papers in this application, I am satisfied that the
applicant
has amply demonstrated that she has
‘repeatedly been subjected
to the costs, harassment and embarrass­ment of unmeritorious
litigation’
.
9
To my mind, she is entitled to invoke the protection of
sec
2(1)(b)
of the Act.
Sec 2(1)(c)
of the Act provides that an order under paragraph
(a) or (b) may be issued for an in­definite period or for such
period as
the court may determine, and the court may at any time, on
good cause shown, rescind or vary any order so issued. The
applicant
applies for an order for an in­definite period and in my view
she is entitled thereto. The
respondent
will not suffer any great inconvenience or prejudice in the process.
He will still be entitled, as of right, to prosecute his pending
appeal in the Supreme Court of Appeal. If successful, he will be
entitled to pursue his claim in this court for the dis­charge
of
his maintenance obligation, based on the
‘dum casta’
clause.
Further­more, he may at any time, should circumstances justify
it, approach this court or a Judge thereof for leave
to institute
proceedings against the
applicant
. In
short, his future litigation against the
applicant
will not be barred; it will simply be screened. Having regard to the
history of the matter, this is not a result that should cause
the
respondent
either prejudice or surprise.
With regard to costs, the
applicant
seeks
a costs order on the scale as between ‘attorney and own client’.
The Supreme Court of Appeal has ex­pressed doubt
as to whether
an order in this form is justifiable
‘where someone other than
the own client or his privy is involved’
.
10
In
Ben McDonald Inc v Rudolph
11
the term
‘own client’
in this context was called a
‘mis­nomer’
by Van Dijkhorst J.
12
In the circumstances, I will simply award costs on the ‘ordinary’
attorney and client scale, to which the
applicant,
in my view, is entitled by reason of the vexatious nature of the
litigation, as I have found.
Conclusion
In the circumstances, the following order is issued:
It is ordered in terms of sec 2(1)(b) of Act 3 of 1956 that save
for prosecuting the appeal to the Supreme Court of Appeal under
Case
No 010/2002 (and thereafter, if necessary, the action under CPD Case
No 257/2000), no legal proceedings shall be in­stituted
by the
first respondent against the
applicant
in any court or any infe­rior court without the leave of this
Honour­able Court or a Judge thereof.
It is recorded that the first respondent has withdrawn the
pro­ceedings instituted by him against the
applicant
in the Main­tenance Court in Cape Town under Case No 01/816/95.
The first respondent is ordered to pay the costs of this
appli­cation on a scale as between attorney and client.
B M Griesel
1
The
judgment has since been reported s.v.
Cohen
v Cohen
2002 (2) SA 571
(C)
2
Fisheries
Development Corporation of SA Ltd v Jorgensen & Another;
Fisheries Development Corporation of SA Ltd v AWJ Investments
(Pty)
Ltd & Others
1979
(3) SA 1331
(W) at 1339E

F;
Bisset
& Others v Boland Bank Ltd & Others
1991
(4) SA 603
(D) 608B

E
3
1999
(2) SA 116
at paras [15]

[21]
4
para
[15] (footnotes omitted)
5
I
have omitted mention of the
respondent
’s
forensic triumph in the Small Claims Court where, on 8 April 1999
he succeeded in obtaining judgment against the
applicant
for R2 875, based on an oral agreement to contribute towards
the expenses of their son’s rugby tour to Argentina.
6
Annexure
‘RC2’
7
As
described by
Van
den Heever J
in
the above mentioned appeal
8
Record
p 174 para 4
9
Beinash
and another v Ernst & Young and others, supra, loc cit
10
see
AA
Alloy Foundry (Pty) Limited v Titaco Projects (Pty) Limited
2000 (1) SA 639 (SCA) 648H
11
1997 (4) SA 252
(T) 254B

C
12
See also Cilliers
Law
of Costs
para
4.08 (service issue 5)