| br!ghtshark |

We have all heard the stories; the anecdotes lawyers regale their friends with at dinners of the weird characters that seem to revel in the drama of litigation: the vexatious litigant.

While most people try to avoid becoming embroiled in legal proceedings, there are some that seemingly cannot get through the day without their fix of issuing summons or launching some application. And no, this does not only happen in America or on television – even boutique firms in Cape Town get the odd enquiry from a person that wants to sue the Minister of Justice (and everybody else) for a R100 million because, ever since his father apparently shot him ten years ago on their front lawn to impress random girls walking by, everybody has conspired against him and caused him to lose his marbles. “Everybody” will inevitably also include the attorney who shall, after listening politely to his ramblings for an hour, decline the offer to represent him.

The ones that are dependant on attorneys are easy enough to stop – most attorneys simply won’t act on their behalf if it is clear that the intended legal proceedings are frivolous or vexatious. But beware the person with some legal background (usually an unfinished law degree or sometimes simply some self-taught knowledge of the court rules) that represents himself – they usually have fools for counsel.

Last year the Cape Argus reported of a Cape Town man that was apparently involved in 15 legal proceedings at the time, including several labour-related matters against his former employer, Mr. Delivery, proceedings The Cape Town International Convention Centre and a R300 million action against Media 24 after Die Burger published a report about him. The man was apparently a part-time law student that drafted his own documents.

Most attorneys or advocates who have been chastised in court by a judge or magistrate would admire the thick skin and tenacity of the average vexatious litigant. Continued lack of success and criticism from the bench just do not seem to stifle their lust for litigation. In reviewing the plethora of proceedings instituted by a particular set of litigants, the Court in Ernst & Young and Others v Beinash and Others 1999 (1) SA 1114 (W) characterised the proceedings, variously, as an abuse of Court procedure to wage a personal vendetta; proceedings launched without reasonable grounds constituting persistent and vexatious proceedings or proceedings which had the effect of being vexatious; proceedings aimed at harassing and inconveniencing the respondents involved in them; action launched recklessly and without any reasonable grounds at all and without any prospect of success; proceedings constituting an expensive source of inconvenience and aggravation in the relentless pursuit of the their ulterior purpose; and an irrational, unbalanced and reckless devotion to a vendetta they had decided to wage against their opponents. At that stage their tally was such: of the 45 different proceedings they had instituted 27 had been unsuccessful, they succeeded in one application for leave to appeal (although the appeal was later dismissed) and 17 matters were unresolved.

Luckily the Vexatious Proceedings Act (Act 3 of 1956) offers some manner of protection against these litigious fiends. The State Attorney or any other person may, in the circumstances set out in Sections 2(1)(a) and (b) respectively, apply for an order against a vexatious litigant to the effect he or she may not institute legal proceedings without the leave of the court. If that person then does institute any proceedings in contravention of the order, shall be guilty of contempt of court liable for a fine or to imprisonment for not more than six months.

But seriously, what would the practice of law be without the likes of Mr Fitchet in the saga of Fitchet v Fitchet 1987 (1) SA 450 (E)? Every now and then, for the sake of practitioners’ morale, we do need someone to claim that a random third person conspired with his ex-fiancée’s mother to assassinate him by driving his car out in front of Mr Fitchet while he was travelling down a hill on his bicycle, and thereby trying to cover up the attempt on his life as a motorcar accident; and, four years later when the driver emigrated to Australia (apparently because the details of the attempt on Mr. Fitchet’s life leaked out); the driver and the ex-fiancée’s mother then conspired to get the ex-fiancee’s mother’s attorney’s daughter to induce Mr. Fitchet to marry her solely in order to obtain false mental illness diagnosis, by getting Mr. Fithcet ill with drugs and lying to a doctor regarding his bahaviour; his wife then divorced him with a “summons filled with lies” and he lost everything.

The learned judge, to his credit, remarked that he was “satisfied that plaintiff’s claim against [Mrs. Fitchet] is one standing outside the region of probability altogether”.