Hardisty and Another v Jiyana and Another

The first and second respondents had previously been declared vexatious litigants by the High Court on 9 March 2023 under the Vexatious Proceedings Act 3 of 1958, after launching multiple unsuccessful applications against the applicants across various courts regarding an immovable property. The respondents had lost their property through a sale in execution by Absa Bank, and the applicants purchased and registered it in their names in 2016. Despite the vexatious litigant order, the respondents brought an urgent application in December 2023 seeking to interdict the applicants from taking occupation after eviction and to regain access to the property. That application was dismissed with costs. In February 2024, the respondents again filed an application for leave to appeal without obtaining leave from the court as required by the Vexatious Proceedings Act. The applicants then brought this interlocutory application under Rule 47(3) seeking security for costs in the sum of R250,000 and a stay of proceedings pending provision of such security.

• Whether the applicants are entitled to an order directing the respondents to furnish security for costs under Rule 47(3) of the Uniform Rules.
• Whether the respondents' institution of proceedings without leave of court, contrary to the Vexatious Proceedings Act, constitutes an abuse of court process warranting security for costs.
• What weight should be given to the respondents' failure to disclose their financial position in opposing the security for costs application.

The first and second respondents were jointly and severally directed to furnish security for the applicants' costs in the main application. The amount, form, and manner of security to be determined by the Registrar. Should the respondents fail to provide security within 15 days of the Registrar's determination, the main application including the application for leave to appeal shall be stayed, and the applicants are entitled to apply for dismissal of the respondents' main application and any further proceedings. The respondents were ordered to pay the costs of this application on a party and party scale.

Where a party has been declared a vexatious litigant and institutes proceedings without obtaining the required leave of court, and persists in advancing the same arguments that have been repeatedly dismissed across multiple courts, a court is entitled, in exercising its discretion under Rule 47(3), to order such party to furnish security for costs in order to protect the opposing party, the integrity of court processes, and the administration of justice. The failure of a party to disclose their financial position when resisting a security for costs application weighs against them.

The court noted that restricting vexatious litigants' access to courts is indispensable to protect and secure the right of access for those with meritorious disputes, and that courts have both an inherent jurisdiction and a constitutional duty to prevent abuse of process.

The case illustrates how courts can use security for costs orders under Rule 47(3) as a mechanism to manage vexatious litigants and enforce compliance with orders made under the Vexatious Proceedings Act. It reinforces the constitutional principle that court orders bind all persons and must be obeyed until set aside, and that courts have a duty to protect both bona fide litigants and the administration of justice from abuse of process.