Sipho Gcora and Gobo-Gcora Construction and Project Management CC v The Nelson Mandela Bay Municipality and Others

The applicants were Sipho Gcora and Gobo-Gcora Construction and Project Management CC (the close corporation), which had been engaged as a subcontractor by WK Construction to build houses for the Nelson Mandela Bay Municipality (NMBM). Disputes arose between the close corporation and WK regarding payment. The close corporation unsuccessfully attempted to recover money directly from NMBM despite having no contractual nexus with the municipality. The Public Protector investigated and directed NMBM to pay the close corporation, but this directive was later found to be ultra vires in a review application. Over several years, the applicants launched multiple unsuccessful applications challenging various judgments and cost orders, leading to Potgieter J declaring them vexatious litigants on 16 May 2023 pursuant to section 2(1)(b) of the Vexatious Proceedings Act, 3 of 1956. The applicants then submitted two requests for leave to institute further legal proceedings: (1) an interdict to prevent NMBM from enforcing cost orders; and (2) enforcement proceedings relating to mediation outcomes. Eksteen ADJP refused both requests in rulings dated 5 February 2025. The applicants then sought leave to appeal against both rulings.

• Whether the applicants satisfied the requirements under section 2(1)(b) of the Vexatious Proceedings Act to obtain leave to institute legal proceedings
• Whether requests for leave to institute proceedings must be supported by affidavits and proper court process
• Whether the proposed interdict proceedings constituted an abuse of process and had prima facie grounds
• Whether rulings by a judge in chambers on requests under the Vexatious Proceedings Act are appealable
• Whether the applicants had any contractual nexus with NMBM to ground the proposed claims
• Whether mediation outcomes between NMBM and WK Construction created enforceable rights for the subcontractor (close corporation)
• Whether the rule 7 challenge to the authority of attorneys was brought timeously

Both applications for leave to appeal dismissed with costs, limited to costs of one counsel to be taxed on scale B.

A vexatious litigant seeking leave to institute proceedings under section 2(1)(b) of the Vexatious Proceedings Act, 3 of 1956 must: (1) make a proper application supported by affidavit evidence; (2) discharge the evidential burden of demonstrating a bona fide claim; and (3) show that the proposed proceedings have prima facie merit and are not an abuse of process. The evidential burden cannot be discharged through mere legal argument. A ruling by a judge in chambers under the Act does not constitute a judgment and does not determine issues between parties - it merely screens the application to assess whether the vexatious litigant has overcome the threshold requirements. Where previous litigation has been pursued to finality with all appeal channels exhausted, attempts to relitigate the same issues under a different guise constitute an abuse of process regardless of how the proposed claim is formulated.

The court expressed significant doubt about whether rulings by judges in chambers under section 2(1)(b) of the Vexatious Proceedings Act are appealable, noting that allowing appeals involving the proposed defendants would defeat the very purpose of the Act by exposing victims to ongoing litigation about litigation before litigation even commences. However, the court assumed in favour of the applicants, without deciding, that such rulings were appealable and proceeded to address the applications on their merits. The court also commented that where a complete defence (such as prescription) is readily available to proposed defendants, this should be considered when assessing whether there are prima facie grounds for the proposed litigation, notwithstanding that under section 17(1) of the Prescription Act courts do not take notice of prescription of their own motion - this prohibition does not apply when a judge in chambers is assessing the merit of a potential claim rather than adjudicating a dispute.

This case provides important guidance on the procedural requirements for vexatious litigants seeking leave to institute proceedings under section 2(1)(b) of the Vexatious Proceedings Act, 3 of 1956. It confirms that such applications must be properly made ex parte, supported by affidavit evidence demonstrating both a bona fide claim and prima facie merit. The judgment reinforces the Constitutional Court's ruling in Beinash that the Act serves the dual purpose of protecting victims of vexatious litigation from repeated harassment and costs, and preserving the efficient functioning of courts. The case also emphasizes the principle of finality in litigation and demonstrates the court's approach to preventing abuse of process through repeated litigation of the same issues under different guises. It clarifies that rulings by judges in chambers under the Vexatious Proceedings Act do not constitute judgments and do not adjudicate disputes between parties, raising questions about their appealability.