Amamugam Govender v The KwaZulu-Natal Office of the Premier

An arbitration award issued by the General Public Service Sector Bargaining Council on 16 August 2023 found that the KwaZulu-Natal Office of the Premier (KOTP) had unfairly dismissed Mr Govender and ordered his reinstatement with backpay exceeding R9.4 million. The KOTP launched a review application and obtained an interim court order on 8 November 2023 suspending the operation of the award pending the furnishing of security under section 145(7) of the Labour Relations Act. Although security was evidently furnished, the KOTP failed to take steps to finalise the security issue or file a replying affidavit. Govender brought several contempt applications seeking to enforce compliance with the arbitration award and the court order. One contempt application was dismissed, and the review application was ultimately dismissed with costs. Thereafter, Govender brought a further contempt application on 27 November 2024. In response, the KOTP applied to have Govender declared a vexatious litigant under section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956.

The contempt application filed on 27 November 2024 was dismissed. The application to declare Mr Govender a vexatious litigant in terms of section 2(1)(b) of the Vexatious Proceedings Act was dismissed. No adverse costs order was made against Mr Govender.

The judgment reinforces the cautious and narrow approach South African courts must adopt when asked to limit a litigant’s constitutional right of access to courts through vexatious proceedings legislation. It clarifies that repeated attempts by a lay litigant to enforce an existing court order or arbitration award do not, without more, constitute vexatious litigation. The case also illustrates judicial intolerance for state litigants invoking vexatious proceedings provisions defensively or in bad faith.