Beinash and Another v Ernst & Young and Others

• Jurisdiction: South Africa
• Court: Constitutional Court
• Judge: Chaskalson P, Langa DP, Ackermann J, Golstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J, Yacoob J
• Judgment Date: 02 December 1998
• Citation: 1999 (2) SA 116 (CC)
• Hearing Date: 08 September 1998
• Docket Number: CCT 12/98
• Counsel: DN Unterhalter (with him M Chaskalson) for the applicants WH Trengove (with him SM Sutner) for the respondents

Mokgoro J:

Introduction

[1] On 12 January 1998 in the Witwatersrand High Court, Fevrier AJ granted the respondents before this Court an D order against, among others, Mr Joseph Leon Beinash and J B & L Nominees CC, the applicants in this matter. The order was in the following terms:

'No legal proceedings shall be instituted by the first, second and third respondents [the first and third respondents are E the applicants before this Court] against any person in any Provincial or Local Division of the High Court of South Africa or any inferior court, without the leave of that court or any Judge of the High Court.'

This order, until the constitutional challenge now before us, brought respite to the respondents and others who had F been awash in a sea of litigation launched by the applicants between 7 May 1992 and 12 January 1998. When Fevrier AJ heard the matter the applicants had already launched 45 different proceedings of which 27 had been unsuccessful and only one, an application for leave to appeal, had been successful. Even in this instance the G ensuing appeal was dismissed. The remaining 17 matters had not been completed. A number of these unsuccessful proceedings had been instituted against the respondents but some of them had also been against other parties, including four different individuals, a Taxing Master, two commercial firms, a firm of attorneys, a firm of H accountants, a trust and a bank. All were characterised by Fevrier AJ as being vexatious. Costs were awarded by Fevrier AJ on the attorney and client scale.

[2] Following an unsuccessful application on 27 February 1998 for leave to appeal to the Supreme Court of Appeal against the order of Fevrier AJ, the applicants also unsuccessfully petitioned the Chief Justice for similar relief. I The applicants then, without taking the steps required by the Rules of this Court to obtain a certificate from the Witwatersrand High Court, and without joining the Minister of Justice, who heads the relevant organ of State, as a party to these proceedings, or giving him notice thereof, applied to this Court for leave to appeal. J

Mokgoro J

[3] The order in the High Court was made in terms of s 2(1)(b) of the Vexatious Proceedings Act [1] ('the Act'), A which provides:

'If, on an application made by any person against whom legal proceedings have been instituted by any other person or who has reason to believe that the institution of legal proceedings against him is contemplated by any other person, the Court is satisfied that the said person has persistently and without any reasonable ground instituted legal proceedings B in any Court or in any inferior court, whether against the same person or against different persons, the Court may, after hearing that other person or giving him an opportunity of being heard, order that no legal proceedings shall be instituted by him against any person in any Court or any inferior court without the leave of that Court, or any Judge thereof, or that inferior court, as the case may be, and such leave shall not be granted unless the Court or Judge or the C inferior court, as the case may be, is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings.'

It was argued that this provision infringes the right guaranteed in s 34 of the Constitution of the Republic of South Africa Act 108 of 1996. Section 34 provides: D

'Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.'

[4] The application seeks three forms of relief in the alternative: leave to appeal against the whole of the High E Court judgment; leave to appeal against the rejection of the petition for leave to appeal to the Supreme Court of Appeal; and an order directing that Court to hear the applicants' appeal. In principle, however, the matter can be disposed of by considering only the application for leave to appeal against the judgment of the High Court. F

[5] Three separate hurdles, which I shall discuss in the course of this judgment, stand in the way of the applicants' obtaining leave to appeal from this Court. The first and, in my view, the most substantial hurdle is the requirement that the applicants have a reasonable prospect of success.129 [2] On this hurdle alone, and for the reasons set out below, I am of the opinion that leave to appeal should not be granted. The second is their failure to comply with G former Rule 18 of this Court. The third is their failure to join or give notice to the Minister of Justice. I now proceed to deal with the first hurdle.

Prospect of success H

[6] The applicants mounted their attack on the High Court's judgment on two grounds. Firstly, they sought to impugn the constitutionality of the provision of the Act in terms of which the order was made and, secondly, should they fail to have the provision declared unconstitutional,

Mokgoro J

they sought to have the matter referred back to Fevrier AJ for reconsideration. I will deal with these issues in A turn.

[7] The applicants argued that s 2(1)(b) of the Act violates the right of access to courts, protected by s 34, in that the only power it vests in a court is to order an absolute bar against instituting any legal proceedings '. . . against B any person in any Court or any inferior court without the leave of that Court, or any Judge thereof, or that inferior court . . .'. [3] In other words, the statute permits only an absolute order which prohibits all further legal proceedings against all persons in all courts at any time without prior authorisation of the court. The sweeping scope of the provision, they argued, goes further than necessary to deter vexatious litigation, has a chilling effect on potential C actions, including those with substantial merit, and is not justifiable. Reading the entire statute, and especially the provisions of s 2(1)(c) [4] and 2(4), [5] the applicants argued that there were four possible dimensions to an order permitted by the Act and which limit a person's right of access to court. These relate to (i) the parties against D whom the litigation is barred; (ii) the court(s) in which the access is limited; (iii) the subject-matter to which the prohibition applies; and (iv) the time period for which the bar is applicable. On the applicants' construction of the provision, a Judge has no discretion to tailor the order to suit the particular circumstances of the case other than the E discretion allowed by s 2(1)(c), which relates to the period of the order. The Act, so the applicants contended, creates an instrument by which a litigant's right of access to a court is reduced to a privilege that might be taken away at any time.

[8] Counsel for the respondents submitted that, even if the Act has the meaning contended for by the applicants, F there are cases, and the present is such a case, in which an order prohibiting a vexatious litigant from instituting any legal proceedings against any person in any court without leave of a court would be appropriate. The fact that there might be cases in which it would not be appropriate to make such an order against a person who has engaged in vexatious litigation does not make the provision unconstitutional. If on the facts of a particular case an G order in such terms is not warranted, a Court could decline to make an order under the Act. Moreover, he argued that the Act also embodies a power to make a narrower order. He contended that a power to prohibit all proceedings against all persons in all courts necessarily encompasses a power to make a more limited order H prohibiting some proceedings against some parties in some courts.

Mokgoro J

[9] There is much to be said for this contention. In the view that I take of the matter, however, it is unnecessary to A decide this issue, which can properly be left open for consideration by the High Court should the occasion to do so ever arise. I am prepared to assume in favour of the applicants that the Act has the meaning for which they contend and that the only order that can be made under the Act is one prohibiting all actions against all persons in B all courts without leave of the court.

[10] A High Court has the inherent power to regulate its own process. Under the existing common law, however, an order regulating a vexatious litigant 'should not go beyond the immediate requirements of the case'. [6] As pointed out in the judgment of Fevrier AJ, the Act was passed in 1956 largely in response to the perceived shortcomings of C the common-law position that had obtained until then. The position is aptly illustrated in In...