Amamugam Govender v The KwaZulu Natal Office of the Premier

Mr Govender was found to have been unfairly dismissed by the KwaZulu-Natal Office of the Premier (KOTP) in an arbitration award issued by the General Public Service Sector Bargaining Council on 16 August 2023. The award ordered his reinstatement and payment of backpay amounting to R9,449,977.48. On 19 October 2023, the KOTP filed a review application to set aside the award. Following attachment proceedings initiated by Govender, the Court issued an order on 8 November 2023 suspending the operation of the award pending determination of security payment by the KOTP, restraining Govender from removing attached property, and setting timelines for filing affidavits. The KOTP furnished security but failed to take steps to finalize the security issue. Govender filed contempt applications on 7 February 2024 (withdrawn without prejudice on 16 February 2024) and 4 March 2024. In response, the KOTP filed an application on 13 March 2024 to declare Govender a vexatious litigant under section 2(1)(b) of the Vexatious Proceedings Act, 3 of 1956. The review application was dismissed on 16 July 2024, and the KOTP filed for leave to appeal on 19 September 2024. Govender filed another contempt application on 27 November 2024.

• Whether Govender should be held in contempt of court for failing to comply with the arbitration award
• Whether Govender had persistently and without reasonable grounds instituted legal proceedings against the KOTP so as to qualify as a vexatious litigant under section 2(1)(b) of the Vexatious Proceedings Act, 3 of 1956
• Whether the KOTP's application to declare Govender a vexatious litigant was brought in bad faith
• The proper interpretation and application of section 2(1)(b) of the Vexatious Proceedings Act, 3 of 1956

1. The contempt application filed by Govender on 27 November 2024 is dismissed. 2. The application to declare Govender a vexatious litigant is dismissed. 3. No cost orders were made.

For a person to be declared a vexatious litigant under section 2(1)(b) of the Vexatious Proceedings Act, 3 of 1956, the applicant must establish: (1) that the respondent has persistently and without reasonable cause instituted legal proceedings, where 'persistent' means 'recurring' or 'constantly repeated or continuous' institution of legal proceedings; and (2) that further litigation has been brought or is reasonably contemplated. The relief is prospective in nature and does not apply to existing proceedings. Courts must proceed very cautiously and only in clear cases grant such relief, as it curtails the constitutional right of access to courts. Legal proceedings instituted to enforce a valid arbitration award where the losing party has failed to furnish security to suspend the operation of the award cannot be characterized as persistent and unreasonable litigation. An application to declare a party vexatious brought in bad faith may justify refusing to make cost orders against that party even where their applications are dismissed.

The court observed that the KOTP, having furnished security under section 145(7) of the LRA (as evidenced by their agreement to pay costs of execution), failed to take any steps to have the security issue enrolled and finalized despite the court order of 8 November 2023. The court noted that this important matter was left to languish for almost 10 months until the review was heard. The court also commented that while the KOTP was not legally obliged to file a replying affidavit, they were obliged to take steps to finalize the matter. The court made an implicit observation about litigants in person attempting to enforce their rights 'in his own lay manner', suggesting some latitude should be given to self-represented litigants in procedural matters. The court also noted that the fact that the KOTP agreed to pay the costs of execution incurred by Govender 'speaks for itself' regarding the legitimacy of Govender's initial enforcement attempts.

This judgment is significant for clarifying the requirements for declaring a litigant vexatious under section 2(1)(b) of the Vexatious Proceedings Act, 3 of 1956 in the labour law context. It reinforces that such relief is prospective in nature and must be approached cautiously as it curtails a litigant's constitutional right of access to courts. The case demonstrates that employees attempting to enforce arbitration awards through legal proceedings, even if numerous, cannot be deemed vexatious litigants where they have reasonable grounds for such proceedings, particularly where the employer has failed to comply with statutory requirements (such as furnishing security under section 145(7) of the LRA). The judgment also serves as a warning that applications to declare a party vexatious brought in bad faith may result in adverse cost consequences for the applicant. It emphasizes the importance of employers complying with court orders and taking necessary procedural steps to finalize matters rather than allowing them to languish.