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[1998] ZACC 19
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Beinash and Another v Ernst & Young and Others (CCT12/98) [1998] ZACC 19; 1999 (2) SA 116 (CC); 1999 (2) BCLR 125 (CC) (2 December 1998)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 12/98
JOSEPH LEON BEINASH                                                             Â
  Â
First Applicant
J B & L NOMINEES CC                                                                Â
  Â
Second Applicant
and    Â
ERNST AND YOUNG                                                                    Â

   First Respondent
THOMAS ALEXANDER WIXLEY                                              Â
   Second
Respondent
PHILLIP WARDEL MOORREES
REYNOLDS                                Third Respondent
Heard on         :           8
September 1998
Decided on     :           2
December 1998
JUDGMENT
MOKGORO J:
Introduction
[1]
On 12
January 1998 in the Witwatersrand High Court,  Fevrier AJ granted the
respondents before this Court an order against, among
others, Mr Joseph Leon
Beinash and J B & L Nominees CC, the applicants in this matter.  The order
was in the following terms:
“No legal
proceedings shall be instituted by the first, second and third respondents [the
first and third respondents are the applicants
before this court] against any
person in any Provincial or Local Division of the High Court of South Africa or
any inferior court,
without the leave of that court or any judge of the High
Court.”
This order, until the
constitutional challenge now before us, brought respite to the respondents and
others who had been awash in
a sea of litigation launched by the applicants
between 7 May 1992 and 12 January 1998.  When Fevrier AJ heard the matter the
applicants
had already launched 45 different proceedings of which 27 had been
unsuccessful and only one, an application for leave to appeal,
had been
successful.  Even in this instance, the ensuing appeal was dismissed.  The
remaining 17 matters had not been completed.Â
A number of these unsuccessful
proceedings had been instituted against the respondents but some of them had
also been against other
parties, including four different individuals, a taxing
master, two commercial firms, a firm of attorneys, a firm of accountants,
a
trust and a bank.  All were characterised by Fevrier AJ as being vexatious.Â
Costs were awarded by Fevrier AJ on the attorney
and client scale.Â
[2]
Following
an unsuccessful application on 27 February 1998 for leave to appeal to the
Supreme Court of Appeal against the order of
Fevrier AJ, the applicants also
unsuccessfully petitioned the Chief Justice for similar relief.  The applicants
then, without taking
the steps required by the rules of this Court to obtain a
certificate from the Witwatersrand High Court, and without joining the
Minister
of Justice, who heads the relevant organ of state, as a party to these
proceedings, or giving him notice thereof, applied
to this Court for leave to
appeal.
[3]
The
order in the High Court was made in terms of section 2(1)(b) of the Vexatious
Proceedings Act
1
(“the Act”) which provides:
“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 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, 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.”
It was argued that this
provision infringes the right guaranteed in section 34 of the Constitution.Â
Section 34 provides:
“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.”
[4]
The
application seeks three forms of relief in the alternative: leave to appeal against
the whole of the High Court judgment; leave
to appeal against the rejection of
the petition for leave to appeal to the Supreme Court of Appeal; and an order
directing that court
to hear the applicants’ appeal.  In principle however, the
matter can be disposed of by considering only the application for leave
to
appeal against the judgment of the High Court.
[5]
Three
separate hurdles, which I shall discuss in the course of this judgment, stand
in the way of the applicants obtaining leave to
appeal from this Court. The
first, and in my view the most substantial hurdle, is the requirement that the
applicants have a reasonable
prospect of success.
2
  On this hurdle alone,
and for the reasons set out below, I am of the opinion that leave to appeal
should not be granted. The second
is their failure to comply with former Rule
18 of this Court.  The third is their failure to join or give notice to the
Minister
of Justice.  I now proceed to deal with the first hurdle.
Prospect of Success
[6]
The
applicants mounted their attack on the High Court’s judgment on two grounds.Â
Firstly, they sought to impugn the constitutionality
of the provision of the
Act in terms of which the order was made, and secondly, should they fail to
have the provision declared unconstitutional,
they sought to have the matter
referred back to Fevrier AJ for reconsideration.  I will deal with these issues
in turn.
[7]
The
applicants argued that section 2(1)(b) of the Act violates the right of access
to courts, protected by section 34, in that the
only power it vests in a court
is to order an absolute bar against instituting any legal proceedings “. . .
against any person
in any court or any inferior court without the leave of that
court, or any judge thereof, or that inferior court. . .”.
3
  In other words, the
statute permits only an absolute order which prohibits all further legal
proceedings against all persons in
all courts at any time without prior
authorisation of the court.  The sweeping scope of the provision, they argued,
goes further
than necessary to deter vexatious litigation, has a chilling
effect on potential actions, including those with substantial merit,
and is not
justifiable. Reading the entire statute, and especially the provisions of
sections 2(1)(c)
4
and 2(4),
5
the applicants argued that there were four possible
dimensions to an order permitted by the Act and which limit a person’s right
of
access to court.  These relate to (i) the parties against whom the litigation
is barred; (ii) the court(s) in which the access
is limited; (iii) the subject
matter to which the prohibition applies; and (iv) the time period for which the
bar is applicable.Â
On the applicants’ construction of the provision, a judge
has no discretion to tailor the order to suit the particular circumstances
of
the case, other than the discretion allowed by section 2(1)(c) which relates to
the period of the order.  The Act, so the applicants
contended, creates an
instrument by which a litigant’s right of access to a court is reduced to a
privilege that might be taken
away at any time.
[8]
Counsel
for the respondents submitted that even if the Act has the meaning contended
for by the applicants, there are cases, and the
present is such a case, in
which an order prohibiting a vexatious litigant from instituting any legal
proceedings against any person
in any court without leave of a court would be
appropriate.  The fact that there might be cases in which it would not be
appropriate
to make such an order against a person who has engaged in vexatious
litigation does not make the provision unconstitutional.  If
on the facts of a
particular case an order in such terms is not warranted, a court could decline
to make an order under the Act.Â
Moreover, he argued that the Act also embodies
a power to make a narrower order.  He contended that a power to prohibit all
proceedings
against all persons in all courts necessarily encompasses a power
to make a more limited order prohibiting some proceedings against
some parties
in some courts.
[9]
There
is much to be said for this contention.  In the view that I take of the matter,
however, it is unnecessary to decide this issue
which can properly be left open
for consideration by the High Court should the occasion to do so ever arise.  I
am prepared to assume
in favour of the applicants that the Act has the meaning
for which they contend and that the only order that can be made under the
Act
is one prohibiting all actions against all persons in all courts without leave
of the court.
[10]
A High
Court has the inherent power to regulate its own process.  Under the existing
common law, however, an order regulating a vexatious
litigant “should not go
beyond the immediate requirements of the case.”
6
  As pointed out in the
judgment of Fevrier AJ, the Act was passed in 1956 largely in response to the
perceived shortcomings of the
common law position that had obtained until
then.  The position is aptly illustrated in
In Re Anastassiades
7
decided the previous
year.  In that case, so the judgment tells us, Mr Anastassiades, an
unrehabilitated insolvent, sought to improve
his economic position by an
ingenious strategy.  He routinely sued numerous companies which he alleged were
involved in a “conspiracy
of association” for substantial damages.Â
Sufficiently impecunious as to make a costs award against him no more than an
empty
claim, Mr Anastassiades drew his own pleadings and argued his own cases
with the hope that one of the defendants cited in his numerous
summonses would
seek a settlement of the claim.  One substantial settlement would make all the
effort, and by his own admission,
the “harassment”, worthwhile.
[11]
After
examining the relevant authorities,
8
Ramsbottom J held that, absent a
statutory power, he had no jurisdiction under the common law to make an order
that would curtail
Mr Anastassiades’ power to litigate more than that which
would be required by the circumstances and between the parties of the
particular case.
9
  In direct response to this, the Act was passed the
following year.  However, this Act did not purport to repeal the common law.Â
It is unnecessary in light of the facts of this case to consider further the
effect, if any, the enactment of the statute had on
the common law remedy.
[12]
In the
case before this Court, the order mirrors the terms of the statute; it is the
statute that is impugned in these proceedings
and not the common law.  The
question to be decided therefore is whether or not such a statute has a place
in a constitutional dispensation
where section 34 guarantees the right of
access to courts.
[13]
The
Act requires the fulfilment of two conditions before a vexatious litigant can
institute legal proceedings. A judge has “to be
satisfied that the proceedings
are not an abuse of the process of the court and that there is
prima facie
ground for the proceedings.”
1
0
  In other words the applicant is required to show
that he or she has a
bona fide
claim and that his or her claim is
prima
facie
meritorious.  Applicants did not contend that the requirement that
the proceedings have
prima facie
merit was unreasonable.  They did,
however, take issue with the requirement that an applicant would need to demonstrate
that the
proceedings would not constitute an abuse of the court’s process.Â
They argued that it was inescapable that the judge, confronted
by an
application to proceed by a person bearing the mark of a vexatious litigant,
would have regard to the prior history of the
applicant, and would be
influenced by the propensity that he or she had demonstrated in the past to
litigate vexatiously or with
some extraneous purpose.  It was argued that this
would load the dice, so to speak, against the applicant.  This kind of
propensity-based
reasoning, it was submitted, is what our law tries to avoid.
[14]
In sum
then, the applicants contended that the Act violated section 34.  Firstly, it
makes provision for a blanket restriction against
persons that goes far beyond
what is necessary as between the litigants, and secondly, the facts that a
vexatious litigant would
have to prove in order to obtain leave to proceed, are
so onerous as to be unjustifiable in relation to the person who is made the
subject of such an order.
[15]
In
order to evaluate the constitutionality of the impugned section, it is
necessary to have regard to the purpose of the Act.  This
purpose is “to put a
stop to persistent and ungrounded institution of legal proceedings.”
1
1
  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”.
1
2
  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.
[16]
The
effect of section 2(1)(b) of the Act is to impose a procedural barrier to litigation
on persons who are found to be vexatious
litigants.  This serves to restrict
the access of such persons to courts.  That is its very purpose.  In so doing,
it is inconsistent
with section 34 of the Constitution which protects the right
of access for everyone and does not contain any internal limitation
of the
right.  The barrier which may be imposed under section 2(1)(b) therefore does
limit the right of access to court protected
in section 34 of the
Constitution.  But in my view such a limitation is reasonable and justifiable.
Section 36 of the Constitution
provides:
“(1)      The rights in the Bill of Rights may be limited only in terms
of law of general application to the extent that the
limitation is reasonable
and justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into
account all relevant factors including-
(a)        the nature of the right;
(b)        the importance of the purpose of the limitation;
(c)        the nature and extent of the limitation;
(d)        the relation between the limitation and its purpose; and
(e)        less restrictive means to achieve the purpose.
(2)        Except as provided in subsection (1) or in any other provision
of the Constitution, no law may limit any right entrenched
in the Bill of
Rights.”
It is therefore necessary
to conduct the limitations analysis required by the section, as explained in
the judgments of this Court.
1
3
[17]
The
right of access to courts protected under section 34 is of cardinal importance for
the adjudication of justiciable disputes.Â
When regard is had to the nature of
the right in terms of section 36(1)(a), there can surely be no dispute that the
right of access
to court is by nature a right that requires active protection.Â
However, a restriction of access in the case of a vexatious litigant
is in fact
indispensable to protect and secure the right of access for those with
meritorious disputes.  Indeed, as the respondents
argued, the court is under a
constitutional duty
1
4
to protect
bona fide
litigants, the processes
of the courts and the administration of justice against vexatious proceedings.Â
Section 165(3) of the Constitution
requires that “[n]o person or organ of state
may interfere with the functioning of the courts.”  The vexatious litigant is
one
who manipulates the functioning of the courts so as to achieve a purpose
other than that for which the courts are designed.  This
limitation serves an
important purpose relevant to section 36(1)(b).  It would surely be difficult
to anticipate the litigious strategies
upon which a determined and inventive
litigator might embark.  Thus there is a requirement for special authorisation
for any proposed
litigation.
[18]
When
one considers, for purposes of section 36(1)(c), the extent of the restriction
permitted by the Act, it seems clear that the
restriction itself can only occur
through an order of court.  The order is then confined to the specific person or
persons at whom
it is directed; it has no direct effect on the public
generally.  An order restricting a litigant is only made in circumstances
where
the court is satisfied that the malfeasant has “persistently and without
reasonable grounds instituted legal proceedings”.
1
5
  If a judge does not make the order
in a judicially permissible manner, then there is always the right to appeal.
[19]
While
such an order may well be far-reaching in relation to that person, it is not
immutable.  There is escape from the restriction
as soon as a
prima facie
case is made in circumstances where the judge is satisfied that the proceedings
so instituted will not constitute an abuse of the
process of the court.
1
6
  When we measure the way
in which this escape-hatch is opened, in relation to the purpose of the
restriction, for the purposes of
section 36(1)(d), it is clear that it is not
as onerous as the applicants contend, nor unjustifiable in an open and
democratic society
which is committed to human dignity, equality and freedom.Â
The applicant’s right of access to courts is regulated and not prohibited.Â
The
more remote the proposed litigation is from the causes of action giving rise to
the order or the persons or institutions in whose
favour it was granted, the
easier it will be to prove
bona fides
and the less chance there is of
the public interest being harmed.  The closer the proposed litigation is to the
abovementioned causes
of action, or persons, the more difficult it will be to
prove
bona fides
, and rightly so, because the greater will be the
possibility that the public interest may be harmed.  The procedure which the
section
contemplates therefore allows for a flexible proportionality balancing
to be done, which is in harmony with the analysis adopted
by this Court, and
ensures the achievement of the snuggest fit to protect the interests of both
applicant and the public.
[20]
Requiring
the potential litigant under these circumstances to discharge this evidentiary
burden is not unreasonable.  It is justifiable
when confronted by a person who
has “used the procedure [ordinarily] permitted by the rules of the court to
facilitate the pursuit
of the truth for a purpose extraneous to that objective.”
1
7
  Having demonstrated a
propensity to abuse the process of the courts, it hardly lies in the mouth of a
vexatious litigant to complain
that he or she is required first to demonstrate
his or her
bona fides
.  In this respect, the restriction is precisely
tailored to meet its legitimate purpose.
[21]
Finally,
section 36(1)(e) requires consideration to be given to the presence of “less restrictive
means to achieve the purpose”
as one of the factors to be considered in the
test for a right’s limitation.  It alone is not the determining factor.Â
Subsection
1(e) is one among several requirements listed in section 36 that aim
to strike the appropriate balance of proportionality between
means and end.Â
The Act does this.  For the reasons stated above, the limitation is reasonable
and justifiable.  Accordingly,
the applicants cannot succeed.
[22]
The
applicants argued that if the Act had the narrower meaning contended for by
respondents’ counsel, Fevrier AJ misconstrued the
discretion he had to grant a
narrowly tailored order, and for this reason this Court should refer the matter
back to the High Court
for the proper exercise of this discretion.
[23]
I am
by no means satisfied that this question raises a matter of constitutionality.Â
But even if it does, and the narrower meaning
is the correct one, there is
nothing in the circumstances of this case that would suggest that the learned
judge erred in granting
the order that he did.  In doing so, Fevrier AJ
expressed himself thus:
“In so far as
section 2(1)(b) of the Act confers a discretion upon the court whether to make
an order, I am satisfied that in all
the circumstances of this case I ought to
make an order.  No fewer than 45 different proceedings have been instituted and
there
is every reason to believe that the institution of further legal
proceedings against one or more applicants, and others as well,
is contemplated
by the respondents.  I have already pointed to the fact that the respondents
appear to be impervious to their abysmal
failures and adverse judicial
comment.  They remain undeterred.  I am satisfied that the facts of this matter
demonstrate amply
that the respondents have persistently and without any
reasonable ground instituted the various legal proceedings referred to herein.”
1
8
The facts set out in his
full and helpful judgment justify the making of such an order and no purpose
would be served by referring
the matter back to him.  In my view therefore,
applicants’ challenge to the order of Fevrier AJ fails on both grounds, and
there
is no prospect of success in the appeal.  I turn now to address the
remainder of the issues.
The Certification
Procedure
[24]
Rule
18
1
9
requires that an
applicant who seeks leave to appeal against a decision of a High Court, other
than an application for confirmation
of unconstitutionality,
2
0
must first obtain a
certificate from the High Court setting out “. . . clearly and succinctly the
constitutional matter raised
in the case, the decision against which the appeal
is made and the grounds on which such decision is disputed.”
2
1
  The purpose of the rule
is to provide this Court with assistance in assessing whether to grant leave to
appeal.  In
Mistry v Interim National Medical and Dental Council of South
Africa and Others
2
2
this Court described that purpose in the following
way:
“The purpose
of the certificate is to assist this Court in the decision that it has to make
as to whether or not leave to appeal
should be granted.  Where the relevant
constitutional issues have been fully traversed in the judgment in respect of
which the certificate
is given, there may be no need for a detailed judgment on
the certificate.  But where the application for a certificate raises issues
which have not been fully canvassed in the judgment, or where the reasoning in
the judgment is subjected to challenge which calls
for comment, the judgment on
the certificate may have to be more comprehensive.  Ultimately what is
necessary is that the judge
or judges in the High Court to whom the application
is made, should . . . consider the issues identified in Rule 18(e) and give
reasons
for the findings made.”
[25]
A
failure to comply with this rule is not necessarily fatal for an application
for leave to appeal.  If that were to be the case,
it would place form before
substance.  This court may condone a failure to comply with any of its formal
rules.
2
3
[26]
Applicants
launched their application on 25 May 1998, under the 1996 Constitution.  Since
the rules relating to that Constitution
were only promulgated on 29 May 1998,
the applicants contended that the reason for their failure to obtain the
necessary certificate
was based on the fact that the new rules were not yet in
operation.  This contention cannot stand, nor excuse the applicants, as
this
Court made clear in its decision in
Bruce and Another v Fleecytex
Johannesburg CC and Others
2
4
that:
“Pending the
coming into force of the relevant legislation and the adoption of Rules in
terms of its provisions, the Rules adopted
under the interim Constitution
remain in force subject to their being consistent with the 1996 Constitution.”
In the circumstances of
the present case, however, no purpose would be served by requiring the
applicants to apply for a certificate.Â
The matter is one in which finality
must be reached and for that reason an order should be made which disposes of
the applicants’
contentions.  This is possible as there are, in any event, no
prospects of success on appeal.
The Issue of Non-joinder
[27]
The
last of the triad of obstacles faced by the applicants, was their failure to
join or give notice to parties with a direct interest
in the matter, in this
case the Minister of Justice.
2
5
  In
Parbhoo and Others v Getz NO and Another
2
6
this Court held:
“Despite the
fact that an order of constitutional invalidity has no force unless it is confirmed
by this Court, it appears undesirable
for any court to make an order under
s172(2)(a) concerning the invalidity of an Act of Parliament or a provincial
Act, where a relevant
organ of State is not a party to the proceedings, unless
that organ has had an opportunity to intervene in such proceedings.  It
might
be necessary for the court first seized of the matter to hear evidence for
purposes of deciding the issue of invalidity. That
is the appropriate stage for
the relevant organ of State to be afforded an opportunity of adducing such
evidence, otherwise the issue
might only arise when the order of invalidity is
before this Court for confirmation.  This would cause unnecessary delay and
inconvenience.”Â
(Footnote omitted).
The Minister of Justice,
who is responsible for this legislation, has a direct interest in whether or
not this legislation is found
to be constitutional.  He should be given an
opportunity to defend the legislation should he wish to do so.  Often the
relevant
organ of state is best positioned to provide the necessary arguments
of justification should the issue of the provision’s constitutionality
come
down to the question of the right’s limitation.  It is often the only party
that can provide this Court with the evidence
it will need to enable it to
tailor its order in terms of the options available under section 172(1)(b) of
the Constitution.  Bearing
in mind that an order of invalidity may be
retrospective in its application, and the potential that this holds for
far-reaching disruption
to the status quo, courts depend upon the evidence that
an organ of state may provide to enable them to make a just and equitable
order.
[28]
Conceding
their failure in this regard, the applicants requested that this Court, were it
to find the provision unconstitutional,
issue an order in the form of a rule
nisi
with a return date that would allow the organ of state to respond and address
the problems that their absence raises.  Even if this
were permissible, the
circumstances of this case do not justify it.  The application has no merit and
an order dismissing it can
be made without hearing the Minister.
Conclusion
[29]
The
application for leave to appeal against the decision by the Supreme Court of
Appeal rejecting the petition, and the application
for an order to compel that
court to hear the appeal, were not pursued vigorously by counsel for the
applicants.  This may have
been prudent. Without deciding these issues, it
would seem that in terms of the legislation
2
7
governing appeals to the Supreme
Court of Appeal a decision refusing a petition for leave to appeal is final.
2
8
  These questions are in
any event rendered moot by the findings of this Court in relation to the
application for leave to appeal
from the order of the High Court: if there are
no prospects of success here, there would be no prospects of success there.
[30]
Often
parties to litigation on a constitutional issue are required to bear their own
costs in relation to the proceedings before this
Court.  The rationale for this
has been expressed already in several judgments of this Court.
2
9
In this case however, by
litigating as persistently and vexatiously as they did, the applicants placed
respondents in the untenable
position where they had to respond to such
unmeritorious litigation, resulting in unnecessary costs.  I am therefore in
respectful
agreement with Fevrier AJ that it would be unfair for the harassed
respondents to bear the costs.  In the circumstances, costs should
follow the
result.
The Order
The application is refused with
costs, such costs to include the costs of two counsel.
Chaskalson P, Langa DP, Ackermann J,
Goldstone J, Kriegler J, Madala J, O’Regan J, Sachs J and Yacoob J concur in
the judgment of
Mokgoro J.
For the Applicants:                D Unterhalter and M Chaskalson
instructed by Melamed & Hurwitz Inc.
For the Respondents:            W Trengove SC and J Suttner SC instructed
by Werksmans.
1
         Â
Act 3
of
1956.
2
         Â
See
Member
of the Executive Council for Development Planning and Local Government of
Gauteng v Democratic Party and Others
[1998] ZACC 9
;
1998 (7) BCLR 855
(CC) at para 32.Â
There, as in the present case, judgment in the High Court had been given under
the 1996 Constitution, but before
the promulgation of the current Rule 18.Â
3
         Â
Section
2(1)(b).
4
         Â
Section 2(1)(c)
provides :
“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.”
5
         Â
Section 2(4)
provides :
“Any person
against whom an order has been made under subsection (1) who institutes any
legal proceedings against any person in
any court or any inferior court without
the leave of that court or a judge thereof or that inferior court, shall be
guilty of contempt
of court and be liable upon conviction to a fine not
exceeding one hundred pounds or to imprisonment for a period not exceeding six
months.”
6
         Â
Corderoy
v Union Government (Minister of Finance)
1918 AD
512.
7
         Â
1955 (2) SA 220
(W)
225 to 226.  Ramsbottom J held :
“. . . that the wide powers conferred by the statute in England
[that is, the English legislation later emulated in the Vexatious
Proceedings
Act] exceeded the inherent power exercised by the Courts under the Common Law,
and that in the absence of such statutory
powers the South African Courts do
not possess inherent power to impose a general prohibition of the kind referred
to in the English
Statute.”
8
         Â
Corderoy
, above note 6, is the principal source.  In that case, Innes CJ held
at 519 that while the power to make an order to prevent an
abuse of the
processes of the court by a vexatious litigant undoubtedly existed at common
law, such an order “should not go beyond
the immediate requirements of the
case.”
9
         Â
Above
note 7.
10
        Â
Above
note 3.
11
        Â
S v
Sitebe
1965 (2) SA 908
(N) 911B - C.
12
        Â
Above
note 3.
13
        Â
See
The National Coalition for Gay
and Lesbian Equality and Another v The Minister of Justice and Others
CCT
11/98, as yet unreported judgment of this Court delivered on 9 October 1998, at
paras 33-35, and the authorities there cited.
14
        Â
This duty
flows from a reading of sections 7(2), 34, 35 and 165(4) of the Constitution.
15
        Â
Above
note 3.
16
        Â
While the judge orders in terms of section 2(1)(b) “that
no legal proceedings shall be instituted by [the subject of the order]
against
any person in any court or any inferior court”, leave to institute proceedings
are to be granted where a 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.”
17
        Â
Beinash
v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) at 734.
18
        Â
Unreported judgment of the
Witwatersrand High Court, case no 23230/97 delivered 12 January 1998 at 39-40.
19
        Â
Both in
terms of the former and current Rules.
20
        Â
Ordinarily
brought in terms of current Rule 15.
21
        Â
Rule
18(3).
22
        Â
[1998] ZACC 10
;
1998 (7)
BCLR 880
(CC) at para 53.
23
        Â
Rule 31.
24
        Â
[1998] ZACC 3
;
1998 (2)
SA 1143
(CC);
1998 (4) BCLR 415
(CC) at para 3.  This decision followed the
approach and principles laid down in the earlier decision of
S v Pennington
and Another
1997 (4) SA 1076
(CC);
1997 (10) BCLR 1413
(CC), and for
which provision is made in items 2 and 16 of schedule 6 of the 1996
Constitution.Â
25
        Â
Rule 6(2) requires:
“In any matter, including any appeal, where there is . . . any
inquiry into the constitutionality of any law, including any Act
of Parliament
or that of a provincial legislature, and the authority responsible for the . .
. administration of any such law is
not a party to the case, the party
challenging the constitutionality of such . . . law shall, within five days of
lodging with the
registrar a document in which such contention is raised for
the first time in the proceedings before the Court, serve on the authority
concerned a copy of such document and lodge proof of such service with the
registrar, and no order declaring such . . . law to be
unconstitutional shall
be made by the Court in such matter unless the provisions of this rule have
been complied with.”
The elided portions in
the above quote relate to actual or threatened administrative acts or conduct,
in respect of which, the same
requirements apply.  This rule however, was not
of application at the time that the application was launched, but its
predecessor,
rule 4(8) of the former Rules required that the party challenging
the constitutionality of a statute inform the executive authority
in writing of
the challenge.
26
        Â
1997 (4)
SA 1095
(CC);
1997 (10) BCLR 1337
(CC) at para 5.
27
        Â
Supreme
Court Act 59 of 1959, section 21.
28
        Â
Id.  Section
21(3)(d) states:
“The decision of
the majority of the judges considering the application, or the decision of the
appellate division, as the case
may be, to grant or refuse the application
shall be final.”
29
        Â
See
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
[1996] ZACC 27
;
1996 (2)
SA 621
(CC);
1996 (4) BCLR 441
(CC)  at paras 5 and 7;
Transvaal
Agricultural Union v Minister of Land Affairs and Another
[1996] ZACC 22
;
1997 (2) SA 621
(CC);
1996 (12) BCLR 1573
(CC) at para 47.