N.K and Another v B.B (30472/21) [2023] ZAGPJHC 1025 (15 August 2023
The Application
In this application, the first applicant (the ex-husband) and the second applicant (the new wife of the first applicant) had sought specific orders against the respondent (the ex-wife), who had vigorously opposed the application. The first and second applicants had sought an order in the following terms, as against the respondent:
(i) declaring the respondent, a vexatious litigant as contemplated in terms of Section 2(1)(b) of the Vexatious Proceedings Act, 3 of 1956;
(ii) declaring that no legal proceedings could be instituted by the respondent against any person in any court or any inferior court without the leave of this Court, or any Judge of this Court, as the case might have been. Such leave not to be granted unless the Court or the Judge, as the case might have been, was satisfied that the proceedings the respondent wished to institute were not an abuse of the process of the Court and that there was a prima facie ground for the intended proceedings;
(iii) costs of the application.
The Facts
The first applicant (former husband) had been previously married to the respondent (former wife). Their marriage took place on the 18th of December 2004 and was subsequently dissolved in April 2017. Two minor children were born of this marriage, who were, at the time, of this application 13 and 12 respectively. Initially, primary residency of the children had been awarded to the respondent. However, this arrangement was later modified due to multiple court applications filed by both parties, as well as several forensic evaluations that were conducted. These evaluations took place in the context of allegations made by the respondent regarding sexual abuse of the minor children. At that point, the first applicant had been granted primary residency of both minor children. After the divorce, the first applicant married the second applicant.
The parties have been involved in extensive and ongoing litigation since April 2018, including applications in the Benoni Children’s Court and urgent High Court matters. The respondent has also filed numerous criminal charges against the first and second applicants. This constant litigation has had a detrimental impact on their minor children, raising serious questions about the respondent’s parenting abilities.
The judgment also notes a troubling trend where some divorced parties, sometimes encouraged by their legal representatives, continue hostile conduct long after the divorce has been finalised. This behaviour has significant psychological and financial consequences for the parties involved, especially the children. The court criticised the lack of sanctions against such conduct by legal practitioners and highlighted the abuse of the legal process in family law cases.
During the week the case was heard, the respondent failed to return one of the minor children to the first applicant, as legally required, and also prevented the child from attending school. This behaviour was likely to necessitate further legal action by the first applicant to secure the child’s return and ensure school attendance.
The respondent had consistently engaged in actions that harm the children and disrupt their primary residence with the first applicant. She had repeatedly violated settlement agreements and court orders, and accused professionals involved in the case of bias. She had also filed numerous unfounded criminal complaints against the first and second applicants, including allegations of sexual and physical abuse and kidnapping. Despite having legal representation, she had not contributed to the expenses of forensic psychologists or social workers investigating her allegations.
As a result, the first and second applicants have incurred significant expenses over the years for legal and other professional services to protect themselves and the minor children. While the court made no findings on the merits of the various court proceedings, it was clear that the respondent continued to engage in relentless litigation against the first and second applicants.
Analysis
In the judgment, Section 2(1)(b) of the Vexatious Proceedings Act was highlighted as a legal provision aimed at protecting individuals from ongoing harassment and unnecessary legal costs due to frivolous or baseless litigation. The section allows the court to restrict a person from initiating any new legal proceedings without the court’s permission if it was determined that the individual had consistently engaged in meritless legal actions. Permission to proceed would only be granted if the court was convinced that the new proceedings were not an abuse of the legal system and have a prima facie basis. This provision serves as a safeguard against the misuse of the judicial process.
In the case of HO v FA1,2021 JDR 2727 (GJ) (unreported) heard by Justice Matojane he cited two cases, namely, Fisheries Development Corp v Jorgensen to define “vexatious” in a legal context. According to this definition, vexatious proceedings are those that are frivolous, improper, and instituted without sufficient grounds, often serving solely to annoy the defendant. The term also covers proceedings that may have been properly initiated but are continued with the sole intent of causing annoyance.
Furthermore, the judgment acknowledged that while the right to access the courts was constitutionally protected under Section 34, there were reasonable and justifiable limitations to this right. Specifically, the court in Beinash and Another v Ernst and Young and Others upheld the constitutionality of Section 2(1)(b) of the Vexatious Proceedings Act. The court reasoned that while access to the courts is crucial, it must be balanced against other equally important objectives, such as the effective functioning of the judicial system, the administration of justice, and the protection of innocent parties from vexatious litigation. The provision serves to prevent the courts from being overwhelmed by meritless cases and from being misused to victimise others.
In legal proceedings, the onus is on the applicant to demonstrate that her claim is both bona fide (made in good faith) and meritorious (having merit or substance). To assess the merit of the claim, the court must adopt a holistic approach, examining the entire history of the matter at hand. The key question the court must answer is whether a reasonable person, considering all the circumstances, could reasonably expect to obtain relief. This standard serves as a safeguard to ensure that the judicial system is not misused for frivolous or vexatious claims, thereby preserving the integrity of the legal process and the administration of justice.
The restriction on a litigant’s access to the courts, as outlined in section 2(1)(b) of the Vexatious Proceedings Act, is not an absolute prohibition but rather a regulatory measure. While it may seem to infringe upon the constitutional right of access to justice, it has been upheld as constitutionally valid in the Beinash case. The court in that matter emphasised that the restriction is not immutable; it can be lifted if the litigant demonstrates a prima facie case and satisfied the judge that the proceedings would not be an abuse of the court’s process.
The provision in question allowed for a nuanced, proportionate balancing of interests, ensuring that the courts were not misused for frivolous or vexatious litigation while still preserving the fundamental right of access to justice. This balancing act was designed to protect both the individual litigant and the broader public interest. It is not as onerous as it may initially appear, and it is justifiable in an open and democratic society. The procedure contemplated by the section allows for flexibility, ensuring that the interests of both the applicant and the public are adequately safeguarded.
In the case of Price Waterhouse Coopers Inc v Pienaar and Others (1845/2021)[2021] ZAWCHC 184 (10 September 2021), Nziweni AJ cited Bisset and Others v Boland Bank and Others 1991 (4) SA 603 (D) to elucidate the primary objectives of the Act governing vexatious litigants. The Act aims to deter individuals from consistently initiating or continuing frivolous legal proceedings without reasonable grounds. The legislation is designed to eliminate the misuse of the judicial system and to regulate litigants’ access to the courts, thereby safeguarding both the judiciary and the public from unproductive litigation.
In the matter at hand, the respondent had repeatedly filed criminal complaints that were proven false. Both higher and lower courts had consistently ruled that the minor children should remain under the primary care of the first applicant. These decisions were corroborated multiple times by experts who had conducted relevant forensic assessments. Despite this overwhelming evidence, the respondent persisted in her actions.
The judge stated that vexatious litigation involves initiating multiple legal proceedings with improper motives, such as harassment or oppression, rather than asserting legitimate rights. In this case, the primary residence of the minor children had already been settled. The judge emphasised the urgent need for intervention, citing the continued trauma experienced by both the applicants and the minor children. Expert reports highlighted serious concerns about the children’s psychological well-being. The judge also noted that the respondent’s current partner had been implicated in allegations of sexual abuse against the children. While not making a formal finding on this matter, the judge observed that the respondent had repeatedly evaded scrutiny of her home environment and relationship by initiating new legal actions or ignoring existing court orders and settlement agreements.
The judge expressed concern over the ongoing separation of the minor children and criticised the respondent’s attorney for sending correspondence directly to the judge in an inappropriate manner. The judge clarified that they could not alter the existing court order regarding the children’s primary residence or remove the appointed parental coordinator, as no such application had been made. The judge emphasised that both experts and courts had already made decisions on these matters, and further litigation or assessments concerning the children should now be regulated. The judge also indicated that there was every reason to believe that the respondent would continue her current strategy indefinitely unless action was taken to stop it. The judge concluded that it was in the best interests of the minor children to bring an end to this conduct and that the purpose of section 2(1)(b) of the Act, which aims to protect innocent persons, should also serve the children’s best interests in this case.
The judge had issued the following order:
The respondent had been declared a vexatious litigant under section 2(b) of the Vexatious Proceedings Act, 3 of 1956.
The respondent had been prohibited from initiating any legal proceedings against the first or second applicants or any related parties in any court without prior approval from the Court or any Judge of the Court. Such approval would only be granted if the Court or Judge was convinced that the intended proceedings were not an abuse of the court’s process and that there was a prima facie basis for the proceedings.
The order was to be brought to the attention of the South African Police Services if the respondent filed any further criminal charges against the first and/or second applicants.
The respondent had been ordered to pay the costs of the application.
Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by Lawsplash, for more information on Family Law read more here.