Joseph Leon Beinash and J B & L Nominees CC v Ernst and Young and Others

Between 7 May 1992 and 12 January 1998, the applicants (Joseph Leon Beinash and J B & L Nominees CC) instituted 45 different legal proceedings against various parties, including the respondents. Of these, 27 had been unsuccessful, only one (an application for leave to appeal) had been successful but the ensuing appeal was dismissed, and the remaining 17 had not been completed. On 12 January 1998, the Witwatersrand High Court (Fevrier AJ) granted an order under section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956, requiring the applicants to obtain leave of a court before instituting any further legal proceedings against any person in any court. The applicants unsuccessfully applied for leave to appeal to the Supreme Court of Appeal and petitioned the Chief Justice. They then applied to the Constitutional Court for leave to appeal, arguing that section 2(1)(b) of the Vexatious Proceedings Act infringed their right of access to courts under section 34 of the Constitution. The applicants failed to obtain a certificate from the High Court as required by former Rule 18, and failed to join or give notice to the Minister of Justice.

• Whether section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 violates the right of access to courts guaranteed by section 34 of the Constitution
• Whether a limitation of access to courts for vexatious litigants is reasonable and justifiable under section 36 of the Constitution
• Whether the applicants had complied with procedural requirements for leave to appeal to the Constitutional Court (Rule 18 certification)
• Whether the Minister of Justice should have been joined or given notice of the constitutional challenge

The application for leave to appeal was refused with costs, such costs to include the costs of two counsel.

Section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956, which requires a vexatious litigant to obtain leave of court before instituting legal proceedings, limits the right of access to courts protected by section 34 of the Constitution, but constitutes a reasonable and justifiable limitation under section 36. The limitation serves the dual purpose of protecting victims of vexatious litigation and safeguarding the functioning of courts and administration of justice. The requirement that a vexatious litigant demonstrate that proposed proceedings are not an abuse of process and have prima facie merit is proportionate and justifiable, as it is precisely tailored to address the harm caused by persistent groundless litigation while providing a mechanism for legitimate claims to proceed. Courts have a constitutional duty to protect bona fide litigants and the functioning of courts against vexatious proceedings.

The Court assumed for purposes of the judgment that the Vexatious Proceedings Act only permits an order prohibiting all actions against all persons in all courts without leave, rather than permitting more narrowly tailored orders. However, the Court indicated that there is much to be said for the respondents' contention that the Act encompasses power to make more limited orders, and expressly left this question open for determination by the High Court should the occasion arise. The Court also observed that it was unnecessary in light of the case facts to consider the effect, if any, that the enactment of the Vexatious Proceedings Act had on the common law remedy for vexatious litigants. The Court noted that the application for leave to appeal from the Supreme Court of Appeal's refusal of a petition, and for an order compelling that court to hear the appeal, were not vigorously pursued by counsel, and commented (without deciding) that it would seem such a decision refusing a petition is final under section 21(3)(d) of the Supreme Court Act 59 of 1959. The Court explained the purpose of Rule 18 certification, noting it assists the Court in deciding whether to grant leave to appeal, and observed that failure to comply is not necessarily fatal as the Court may condone non-compliance.

This case establishes important principles concerning the constitutionality of vexatious litigant provisions in South African law. It confirms that: (1) the right of access to courts under section 34 is not absolute and may be reasonably limited to prevent abuse of court processes; (2) section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 is constitutionally valid under the 1996 Constitution as a justifiable limitation under section 36; (3) courts have a constitutional duty under section 165(3) to protect the functioning of courts against vexatious proceedings; (4) the restriction of access for vexatious litigants actually serves to protect and secure access to courts for bona fide litigants; (5) the requirement that a vexatious litigant demonstrate bona fides and a prima facie case before proceeding with litigation strikes an appropriate balance between individual rights and the public interest; (6) the Court confirmed procedural requirements for constitutional challenges including Rule 18 certification and joinder of the relevant organ of state (though these may not always be fatal); and (7) costs may be awarded against unsuccessful litigants in constitutional matters where the litigation was vexatious. The judgment demonstrates the Court's approach to balancing constitutional rights with the need for functional administration of justice.