Abstract

This contribution traces the historical evolution and presents a present day outline of the South African doctrine of abuse of court process, a body of law developed over more than a century to protect the integrity of judicial proceedings and uphold the interests of justice. Pre-Union and early-Union case law addressing procedural misuse, vexatious litigation and unlawful arrest and prosecution already revealed the need to prevent court processes from being misused for ulterior purposes. Throughout the development of the law on this doctrine, the judiciary has emphasised that court procedures are designed to resolve genuine disputes and vindicate rights, not to enable harassment, intimidation or the suppression of public participation. The 2022 judgment of the Constitutional Court in Mineral Sands Resources (Pty) Ltd v Reddell [2022] ZACC 37 brought much needed conceptual clarity by identifying five distinct species of abuse of process: The abuse of court rules and procedures, vexatious proceedings, illegal conduct, malicious prosecution and abusive litigation, which encompass the novel class of strategic litigation against public participation (SLAPP) suits. Against this backdrop, the contribution provides an in-depth evaluation of the historical development and modern application of the law on two of the species of the abuse of process doctrine, namely vexatious proceedings and abusive litigation. The South African law on vexatious proceedings demonstrates the complex, yet essential, interplay between the common law and the Vexatious Proceedings Act 3 of 1956. Abusive litigation, and most prominently the SLAPP suit, emerges as the newest form of the doctrine of abuse of court process. The contribution concludes that across all five species, the courts’ inherent power, informed by the Constitution of the Republic of South Africa, 1996, remains indispensable to protecting judicial processes, preserving access to justice and safeguarding the functioning of South Africa’s constitutional democracy.