A Decade of Persistent Litigation: The Factual Matrix
The factual landscape of this matter presents a striking example of how matrimonial disputes can spiral into prolonged abuse of court processes. The saga began with the granting of a divorce order by the Western Cape High Court on 26 August 2020, but rather than marking the end of the matrimonial relationship, this order became the catalyst for an extraordinary campaign of litigation designed to undermine and avoid its terms.
What followed the divorce order was nothing short of a litigation avalanche. The respondent embarked on what can only be described as a systematic assault on the finality of the court’s decision, pursuing no fewer than ten separate and unsuccessful applications across multiple courts and jurisdictions. This relentless pursuit began with what might be considered the normal course of legal recourse – applications for leave to appeal the divorce order through the traditional appellate hierarchy, extending all the way to the Constitutional Court.
However, the respondent’s persistence did not end with the Constitutional Court’s refusal to grant leave to appeal. Instead, he expanded his battlefield to include forums that had no jurisdiction to overturn a High Court divorce order. The maintenance courts of Atlantis and Cape Town became unwilling participants in his quest to stay or vary the divorce order, followed by an appeal to the High Court when these efforts predictably failed. Even more remarkably, the respondent approached the Domestic Violence Court in an attempt to prevent the applicant from executing the divorce order.
The respondent’s conduct extended beyond the courtroom into a pattern of intimidation and harassment that would make any legal practitioner’s blood run cold. Legal representatives became targets of extraordinary threats, with the applicant’s attorneys facing a R210 million lawsuit threat and counsel threatened with R190 million in damages. The respondent’s own former legal representatives were not spared from similar menacing conduct.
Perhaps most troubling was the respondent’s resort to what the court characterised as blackmail. In June 2025, he threatened to escalate complaints to the Legal Practice Council if the applicant’s legal representatives did not agree to postpone the court-authorised sale in execution. This escalation included complaints to the Legal Services Ombud and demands that the legal representatives recuse themselves from any current or future litigation.
The backdrop to this entire saga was the respondent’s refusal to comply with his obligations under the divorce order, coupled with his determination to challenge what the court described as the piercing of the corporate veil of the Collin Trust. The trust’s property had become subject to attachment under Rule 46A of the Uniform Rules of Court, leading to a forced sale that the respondent viewed as an “irrevocable loss of R5 million.” This financial consequence appeared to intensify his resolve to pursue what he characterised as efforts to “undo an unlawful divorce outcome that resulted in the fraudulent loss of trust assets, personal property, and dignity.”
The pattern that emerges from these facts is one of litigation being weaponised not to seek legitimate legal redress, but to avoid legal obligations and to harass the opposing party into submission. The respondent’s own words revealed his strategy when he described his efforts as “targeted and narrowly confined” to undoing the divorce outcome, demonstrating a fundamental misunderstanding of the finality that court orders are intended to achieve in our legal system.
The Legal Test for Vexatious Litigant Declarations under Section 2(1)(b) of the Vexatious Proceedings Act
The power to restrain vexatious litigation finds its source in section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956, which empowers courts to impose restrictions where a person “has persistently and without any reasonable ground instituted legal proceedings.” This provision represents a careful balance between protecting litigants from harassment through frivolous proceedings whilst preserving the fundamental right of access to courts enshrined in section 34 of the Constitution of the Republic of South Africa, 1996.
The judicial interpretation of these statutory requirements was crystallised in Cohen v Cohen and Another 2003 (1) SA 103 (C), which established that applicants must satisfy two distinct threshold requirements. The first element requires proof that the respondent has “persistently” instituted legal proceedings, whilst the second demands demonstration that such proceedings have been “without reasonable ground.”
Justice Nuku’s analysis of the persistence requirement reveals an important judicial recognition that not all repeat litigation constitutes vexatious conduct. The court acknowledged that the respondent could not be faulted for pursuing the normal appellate process up to the Constitutional Court. This observation underscores a crucial distinction in vexatious litigant jurisprudence – the law does not seek to penalise litigants for exercising their legitimate right to appeal, even when those appeals ultimately prove unsuccessful.
However, the temporal boundary established by the Constitutional Court’s decision becomes legally significant. Once the highest court in the land has pronounced on a matter, subsequent applications lose their foundation in reasonable belief. Justice Nuku observed that any application lodged after the Constitutional Court’s refusal of leave to appeal “could not have been made with an honest belief that it would achieve anything.”
The second limb of the test – the absence of reasonable grounds – operates as both an objective and subjective inquiry. The court must assess whether the proceedings could objectively be considered to have merit, whilst also examining the litigant’s subjective belief in the prospects of success. In this case, the respondent’s resort to forums lacking jurisdiction to overturn High Court orders – such as maintenance courts and domestic violence courts – demonstrated a fundamental disconnect between his litigation strategy and any reasonable legal foundation.
The constitutional dimension of vexatious litigant declarations cannot be overlooked. The court referenced the Constitutional Court’s decision in Beinash and Another v Ernst & Young and Others 1999 (2) SA 116 (CC), which confirmed that the provisions of the Vexatious Proceedings Act have withstood constitutional scrutiny. The Beinash decision established that whilst such orders do limit the right of access to courts, this limitation is justifiable in a constitutional democracy committed to preventing abuse of court processes.
Justice Nuku’s application of these principles demonstrates how courts must navigate the tension between protecting legitimate litigants from harassment and ensuring that genuine grievances are not stifled by an overly broad interpretation of vexatiousness. The judgment emphasises that the declaration serves to prevent abuse of process rather than to deny access to justice entirely, requiring future applications to be filtered through a leave mechanism that assesses their prima facie merit.
Balancing Constitutional Rights: Access to Courts versus Preventing Abuse of Process
The constitutional dimensions of vexatious litigant declarations present a fascinating study in how courts balance competing fundamental rights within South Africa’s constitutional framework. At the heart of this tension lies section 34 of the Constitution, which guarantees everyone the right to have justiciable disputes decided by a court of law, and the state’s interest in maintaining orderly and efficient judicial processes free from abuse.
Justice Nuku’s judgment demonstrates the constitutional sensitivity required when courts consider restricting litigation rights. The respondent raised several constitutional challenges, claiming violations of his rights under sections 9 and 34 of the Constitution – the rights to equality and access to courts respectively. He argued that the legal process had been “noticeably unfair compared to other litigants in similar circumstances” and that requiring security for costs would effectively prevent him from accessing courts for remedies.
The court’s response to these constitutional arguments reveals the sophisticated jurisprudential framework that has developed around vexatious litigant legislation. The judgment emphasises that the provisions of the Vexatious Proceedings Act have withstood constitutional scrutiny, as confirmed in the Beinash case. This precedent established that whilst vexatious litigant orders do limit the right of access to courts, such limitation can be constitutionally justified when it serves to prevent abuse of court processes.
The constitutional analysis becomes particularly nuanced when the court considers whether additional conditions should be attached to the vexatious litigant order. Justice Nuku expressed concern that the proposed conditions precedent – requiring compliance with the divorce order and payment of outstanding costs orders before granting leave – would impose limitations not sourced from the Act or “any other law of general application as provided for in section 36(1) of the Constitution.”
This constitutional reasoning reveals the court’s careful attention to the limitation of rights framework established in section 36 of the Constitution. Any limitation of fundamental rights must be justified by law of general application and must be reasonable and justifiable in an open and democratic society. The proposed conditions failed this test because they extended beyond the statutory purpose of preventing vexatious litigation into what the court characterised as ensuring compliance with other court orders.
The respondent’s broader constitutional complaints about fraud, collusion and perjury allegedly undermining “the fundamental principle of justice and the rule of law, as set out in section 1(c) of the Constitution“ were dismissed for lack of supporting evidence. Similarly, his allegations about “personal and professional alliances within the Cape legal network” creating bias contrary to section 165(2) of the Constitution were found to be unsubstantiated.
Justice Nuku’s constitutional analysis ultimately reinforces that vexatious litigant orders represent a permissible limitation on constitutional rights, provided they remain within the bounds of their statutory purpose. The judgment serves as a reminder that constitutional rights, whilst fundamental, are not absolute and must be exercised within a framework that respects the rights of others and the integrity of judicial processes.
Procedural Pitfalls: Security for Costs and the Importance of Proper Timing
The security for costs application in this matter provides a cautionary tale about the importance of adhering to procedural timeframes and demonstrates how procedural missteps can undermine otherwise legitimate relief. The applicant’s pursuit of security under Rule 47 of the Uniform Rules of Court foundered not on substantive grounds, but on fundamental procedural defects that rendered the application premature.
The chronology of events reveals the procedural error that proved fatal to this aspect of the relief sought. On 20 June 2025, the applicant served the requisite Rule 47 Notice demanding security for costs, affording the respondent the standard ten-day period for compliance. However, the application seeking the rule nisi was heard on 26 June 2025 – merely three court days after service – and the rule nisi was issued on 2 July 2025, a full eight days before the ten-day period had expired.
This premature timing created an insurmountable procedural hurdle. Justice Nuku identified the central question as “whether the rule nisi, in so far as it concerns the order directing the respondent to furnish security, was made prematurely.” The court’s analysis reveals that procedural fairness requires not merely that notice be given, but that the prescribed period for compliance be allowed to run its course before judicial intervention.
The applicant’s counsel initially attempted to abandon this relief when the timing defect was raised, but subsequently reversed course, arguing that requiring a separate application would be “highly prejudicial” since the same facts were already before the court. This strategic flip-flop highlighted a fundamental misunderstanding of procedural requirements – convenience cannot trump procedural fairness, particularly where constitutional rights are at stake.
Justice Nuku’s response to the prejudice argument was uncompromising. The court observed that “it was the applicant who chose to bring the present application before the expiry of the period she had given the respondent to provide security.” Having created the timing problem through her own conduct, the applicant could not legitimately complain of prejudice when required to follow proper procedures.
The judgment reveals that the security application appeared to be an afterthought rather than a carefully considered strategy. The court noted that this relief seemed to have been considered “only during the preparation of the application to declare the respondent a vexatious litigant.” This observation underscores the importance of comprehensive case planning and the dangers of retrofitting relief that requires different procedural foundations.
The court’s treatment of applications against incola litigants adds another layer of procedural complexity. Justice Nuku emphasised that such applications “require careful consideration and should not be made lightly” because they affect the constitutional right of access to courts. This heightened scrutiny becomes particularly important when procedural irregularities compound the rights implications.
The procedural defect was further aggravated by what the court described as an infringement upon the respondent’s procedural rights. This finding suggests that courts will not overlook procedural fairness even when dealing with litigants whose overall conduct may be objectionable. The rule of law demands adherence to proper procedures regardless of the perceived merit of restricting a particular litigant’s access to courts.
Practical Implications for Legal Practitioners: When Does Zealous Advocacy Become Vexatious Conduct?
This judgment offers crucial guidance for practitioners navigating the thin line between zealous advocacy and conduct that may attract vexatious litigant sanctions. The distinction becomes particularly important in matrimonial matters where emotions run high and clients may be driven by a sense of injustice that clouds their judgment about the viability of continued litigation.
The respondent’s conduct provides a textbook example of how legitimate legal representation can deteriorate into enabling vexatious behaviour. Practitioners must be vigilant in recognising when a client’s litigation strategy shifts from seeking legitimate legal redress to pursuing what Justice Nuku described as “a targeted and narrowly confined effort to undo” finalised court orders. The moment litigation becomes about relitigating settled matters rather than pursuing fresh causes of action, warning bells should sound.
The judgment reveals how quickly zealous advocacy can cross into territory that exposes both client and practitioner to serious consequences. The respondent’s escalation from pursuing normal appellate remedies to approaching courts without jurisdiction demonstrates how clients may lose sight of legal boundaries when driven by perceived injustice. Practitioners have a professional obligation to counsel clients about the futility and potential consequences of pursuing proceedings that lack reasonable prospects of success.
The threats directed at opposing legal representatives in this matter highlight another danger zone for practitioners. When client instructions extend to intimidating opposing counsel with massive damages claims or demanding their recusal from ongoing matters, practitioners must recognise these as red flags indicating that the client-practitioner relationship has become dysfunctional. The respondent’s threats of R210 million and R190 million lawsuits against opposing attorneys and counsel respectively demonstrate conduct that no ethical practitioner could facilitate.
The court’s treatment of the respondent’s complaints against various legal practitioners and judicial officers reveals another concerning pattern. The filing of complaints against opposing counsel, former representatives, forensic experts, and even judges suggests a client who has lost sight of the boundaries of legitimate litigation conduct. When clients begin viewing every legal setback as evidence of misconduct requiring regulatory intervention, practitioners must seriously consider whether continuing representation serves any legitimate purpose.
Justice Nuku’s analysis of the conditions precedent issue provides important guidance about the proper scope of vexatious litigant orders. The court’s refusal to confirm conditions requiring compliance with other court orders demonstrates that such relief cannot be used as a backdoor method of enforcing unrelated judgments. This finding protects practitioners from situations where vexatious litigant applications might be misused as collection mechanisms rather than being confined to their proper purpose of preventing abuse of process.
The judgment’s emphasis on evidential support for constitutional challenges serves as a reminder to practitioners about the dangers of making broad allegations without proper foundation. The respondent’s claims about violations of equality rights and bias within the legal profession were dismissed for lack of supporting evidence, highlighting the professional risk of advancing unsubstantiated constitutional arguments.
For practitioners representing potential applicants in vexatious litigant proceedings, this judgment demonstrates the importance of comprehensive case preparation and strategic focus. The applicant’s failure to adequately address the conditions precedent issue and the premature timing of the security application show how even successful applications can be undermined by inadequate preparation or strategic overreach.
Questions and Answers
What are the two essential requirements that must be established for a vexatious litigant declaration under the Vexatious Proceedings Act?
The Cohen case established that applicants must prove firstly that the respondent has “persistently” instituted legal proceedings, and secondly that such proceedings have been “without reasonable ground.” Both elements must be satisfied for the relief to be granted.
At what point does legitimate appellate litigation transform into vexatious conduct?
The court recognised that pursuing appeals through the normal hierarchy, including to the Constitutional Court, cannot be faulted. However, once the Constitutional Court refuses leave to appeal, any subsequent applications lose their foundation in honest belief and cross into vexatious territory.
Can maintenance courts or domestic violence courts set aside High Court divorce orders?
No. The respondent’s approach to these forums demonstrated a fundamental jurisdictional error. These courts lack the authority to overturn High Court orders, and any genuine belief in their capacity to do so would be unreasonable.
What test does the court apply when assessing whether proceedings lack reasonable grounds?
The assessment involves both objective and subjective elements – whether the proceedings could objectively be considered to have merit, and whether the litigant held an honest belief in their prospects of success.
Can vexatious litigant orders be used as mechanisms to enforce compliance with other court orders?
No. Justice Nuku rejected the proposed conditions precedent precisely because they would have used the vexatious litigant order to ensure compliance with the divorce order and costs orders, which exceeds the statutory purpose of the Act.
What constitutional framework governs the limitation of litigation rights through vexatious litigant orders?
Such limitations must comply with the framework in section 36 of the Constitution, requiring justification by law of general application and demonstrating that the limitation is reasonable and justifiable in an open and democratic society.
What procedural requirements must be satisfied before seeking a security for costs order under Rule 47?
A proper Rule 47 notice must be served affording the respondent ten days to provide security, and this period must be allowed to expire before any application for enforcement can be brought.
What happens if a court makes an order for security before the prescribed notice period has expired?
The order becomes procedurally defective and cannot be confirmed, regardless of the substantive merits. Procedural fairness requires that prescribed timeframes be respected.
What standard of evidence is required to support constitutional challenges in vexatious litigant applications?
Constitutional allegations must be supported by evidence. Bare assertions about violations of constitutional rights, without supporting evidence, will be dismissed by the court.
Can courts attach any conditions to vexatious litigant orders, or are they limited by the statutory framework?
Courts cannot impose conditions that extend beyond the statutory purpose of preventing vexatious litigation. Conditions that serve other purposes, such as enforcing unrelated court orders, constitute an improper use of the statutory instrument.
What approach should courts take when considering security applications against incola litigants?
Such applications require careful consideration and should not be made lightly, as they affect the constitutional right of access to courts. Enhanced procedural fairness protections apply.
What costs scale is appropriate when an applicant achieves partial success in a vexatious litigant application?
Where an applicant achieves substantial but not complete success, party-and-party costs are more appropriate than attorney-and-client costs. The degree of success influences the appropriate costs order.
What procedural consequences follow when litigants file supplementary affidavits without leave?
Such affidavits are procedurally irregular, and courts may give them little or no weight. The proper procedure requires obtaining leave before filing additional affidavits.
How should courts approach constitutional challenges that lack evidential support?
Courts must distinguish between legitimate constitutional arguments supported by evidence and bare assertions. Unsubstantiated claims about constitutional violations cannot succeed merely because they invoke constitutional provisions.
What happens to pending applications when a vexatious litigant order is made?
The order does not automatically affect pending proceedings. The court noted that any order prohibiting future proceedings “may not be applicable to the three pending applications,” indicating that existing matters continue under their current procedural framework unless specifically addressed.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculatorand Accrual Calculator.
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