Cohen v Cohen and Another

• Jurisdiction: South Africa
• Citation: 2003 (1) SA 103 (C)

Cohen v Cohen and Another
2003 (1) SA 103 (C)

2003 (1) SA p103

Citation	2003 (1) SA 103 (C)
Case No	4383/2002
Court	Cape Provincial Division
Judge	Griesel J
Heard	August 22, 2002
Judgment	August 26, 2002
Counsel	F J Gordon-Turner for the applicant.; D A Stephens for the first respondent.; No appearance for the second respondent.

Flynote : Sleutelwoorde G

Practice — Withdrawal and dismissal of proceedings — Dismissal of — Vexatious proceedings — Order in terms of Vexatious Proceedings Act 3 of 1956, s 2(1)(b) — When granted — Purpose of Act to stop persistent and ungrounded institution of legal proceedings by allowing H Court to screen, as opposed to bar, person who persistently and without any reasonable ground instituting legal proceedings in any Court or inferior court — Screening mechanism necessary to protect interests of victims of vexatious litigant who repeatedly subjected to costs, harassment and embarrassment of unmeritorious litigation and public I interest that functioning of courts and administration of justice proceed unimpeded by burden of groundless proceedings — Applicant to meet two threshold requirements in order to obtain relief in terms of s 2(1)(b) of Act, ie show that respondent 'persistently' instituting legal proceedings and that such proceedings 'without reasonable ground'. J

2003 (1) SA p104

Headnote : Kopnota

The applicant and respondent had been granted a decree of divorce, incorporating a consent paper, in November 1994. The A consent paper set out various maintenance obligations owed to the applicant by the respondent and contained a 'dum casta' clause providing for the cessation of the maintenance obligation upon, in addition to the death or remarriage of the applicant, the applicant living with another man as husband and wife for a stipulated period of time. The parties subsequently became embroiled in numerous court applications, mostly related to the B respondent's obligation to maintain the applicant. One of the actions instituted by the respondent, in which he sought an order declaring that his obligations to pay maintenance had ceased as the 'dum casta' clause had come into operation, had been dismissed by the Court. He was, however, granted leave to appeal C against the decision. The applicant then launched the present application, alleging that the proceedings instituted by the respondent were vexatious, as contemplated by the Vexatious Proceedings Act 3 of 1956 (the Act), and seeking an order in terms of s 2(1)(b) of the Act.

Held, that at common law the courts enjoyed an inherent power to strike out claims that were vexatious, ie frivolous, improper, instituted without sufficient ground or to serve solely as an annoyance to the defendant. As a complement to the common law, D the Act provided a court with a mechanism for the prevention of the institution of vexatious legal proceedings. (Paragraphs [14] and [15] at 108D - E/F.)

Held, further, that the purpose of the Act was to put a stop to the persistent and ungrounded institution of legal proceedings by allowing the Court to screen, as opposed to bar, a person who had E persistently and without any reasonable ground instituted legal proceedings in any Court or inferior court. This screening mechanism was necessary to protect at least two important interests: the interests of the victims of the vexatious litigant who have been repeatedly subjected to the costs, harassment and embarrassment of unmeritorious litigation and the public interest that the functioning F of the courts and the administration of justice proceed unimpeded by the burden of groundless proceedings. (Paragraph [16] at 108H - 109B/C.)

Held, further, that the applicant had to meet two threshold requirements in order to obtain relief in terms of s 2(1)(b) of the Act. She had to show that the respondent had 'persistently' instituted legal proceedings and that such proceedings have been 'without reasonable ground'. (Paragraph [17] at 109C - D.) G

Held, further, that it appeared from the history of the matter that since November 1995 the respondent had instituted nine different processes against the applicant, five of them in the maintenance court and all of them aimed at discharging his maintenance obligations towards the applicant. At no stage had more than a five-month period elapsed between court procedures or the threat of court procedures being initiated. Having regard to the frequency and timing of the procedures, therefore, the respondent had certainly H been 'persistent'. (Paragraph [18] at 109D - E/F.)

Held, further, that the respondent had refused to furnish a detailed schedule of his income, expenses, assets and liabilities in order to demonstrate his inability to afford his maintenance obligations. His refusal did not assist him in the present proceedings in his efforts to try and establish his bona I fides and the reasonableness of the litigation instituted by him. Having regard to the overall pattern of litigation between the parties, the inference was irresistible that such litigation had, by and large, been instituted and prosecuted 'without any reasonable ground'. (Paragraphs [22] and [24] at 110E/F - G and 111A - B.)

Held, further, that, having regard to the history of the matter as a whole as it J

2003 (1) SA p105

appeared from the papers in the instant application, the applicant had amply demonstrated that she had A repeatedly been subjected to the costs, harassment and embarrassment of unmeritorious litigation and was entitled to invoke the protection of s 2(1)(b) of the Act. (Paragraph [30] at 112B - C.)

Held, further, that the applicant had applied for the appropriate order for an indefinite period and was entitled thereto. The respondent would not suffer any great inconvenience or B prejudice in the process as he would still be entitled to prosecute his pending appeal and could approach the Court at any time for leave to institute further proceedings against the applicant. (Paragraph [31] at 112C - E/F.) Application granted.

Cases Considered

Annotations

Reported cases C

AA Alloy Foundry (Pty) Ltd v Titaco Projects (Pty) Ltd 2000 (1) SA 639 (SCA): considered

Beinash and Another v Ernst & Young and Others 1999 (2) SA 116 (CC) (1999 (2) BCLR 125): dictum in para [15] applied D

Ben McDonald Inc and Another v Rudolph and Another 1997 (4) SA 252 (T): referred to

Bisset and Others v Boland Bank Ltd and Others 1991 (4) SA 603 (D): referred to

Cohen v Cohen 2002 (2) SA 571 (C): referred to E

Fisheries Development Corporation of SA Ltd v Jorgensen and Another; Fisheries Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and Others 1979 (3) SA 1331 (W): dictum at 1339E - F applied.

Statutes Considered

Statutes

The Vexatious Proceedings Act 3 of 1956, s 2(1)(b): see Juta's Statutes of South Africa 2001 vol 1 at 1-81. F

Case Information

Application for an order in terms of s 2(1)(b) of the Vexatious Proceedings Act 3 of 1956. The facts appear from the reasons for judgment.

F J Gordon-Turner for the applicant.

D A Stephens for the first respondent.

No appearance for the second respondent. G

Cur adv vult.

Postea (August 26). H

Judgment

Griesel J:

[1] In this application the applicant is seeking an order against the first respondent in terms of s 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 (the Act). She also seeks an order directing that proceedings instituted by the first respondent against her in the maintenance court in Cape Town under case No 01/816/95 be postponed pending the determination of this I application. The relevant maintenance court magistrate has formally been joined herein as second respondent, but does not oppose the application and no relief is claimed against her. I shall accordingly refer to the first respondent herein simply as 'the respondent'. J

2003 (1) SA p106

Griesel J

The facts A

[2] The applicant, who is presently an estate agent, was formerly married to the respondent, a businessman, for some 21 years. On 10 February 1995 this Court granted a decree of divorce, incorporating the terms of a consent paper, entered into between the parties on 4 November 1994. In terms of the consent paper, custody of the two minor children born of the marriage was awarded to the B applicant. The respondent was obliged to pay maintenance to the applicant in respect of the minor children. In addition, the respondent had to pay maintenance to the applicant personally at...