Abuse of Court Process: The Development of South African Law on Vexatious Proceedings and Abusive Litigation

by | Oct 5, 2026 | FUND, FUND V32 I1

Abuse of Court Process: The Development of South African Law on Vexatious Proceedings and Abusive Litigation

Author Andrea Bauling

ISSN: 2411-7870
Affiliations: BA LLB LLM (University of Pretoria) MEd (University of South Africa)
Source: Fundamina, Volume 32 Issue 1, p. 1-45
https://doi.org/10.47348/FUND/v32/i1a1

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.

Incoterms: Past, Present and Future

by | Oct 5, 2026 | FUND, FUND V32 I1

Incoterms: Past, Present and Future

Author Juana Coetzee

ISSN: 2411-7870
Affiliations: BA LLB LLM LLD. Emeritus Associate Professor and Research Fellow, Department of Mercantile Law, Stellenbosch University
Source: Fundamina, Volume 32 Issue 1, p. 46-91
https://doi.org/10.47348/FUND/v32/i1a2

Abstract

When tracing the history and development of trade terms, it becomes apparent that they mirror the development of international trade generally. The evolution of trade terms is not a legal matter, but has been shaped by commercial practice, which, in turn, is influenced by historical, economic, political and technological factors. Developments in transportation techniques, containerisation, technology and the movement towards e-commerce are the main drivers of evolving commercial practices that regulate the export and import of goods, and hence the form and content of the contracts of sale that control these transactions. This contribution tracks the historical development of trade terms, and more specifically that of international commercial terms (Incoterms) to show how this form of standardisation constantly reinvents itself to accommodate evolving mercantile practices of the day. By using their chronological development, predictions are made on how Incoterms will develop in the future. Their historical evolution is also used to analyse their legal nature and to determine whether the rules either constitute mercantile custom or trade usage or form part of a new lex mercatoria.

Law, Science, and Art

by | Oct 5, 2026 | FUND, FUND V32 I1

Law, Science, and Art

Author Jacques du Plessis

ISSN: 2411-7870
Affiliations: Professor in Private Law, Stellenbosch University
Source: Fundamina, Volume 32 Issue 1, p. 92-120
https://doi.org/10.47348/FUND/v32/i1a3

Abstract

The relationship between law, science and art has long been uncertain. In part by adopting a historical perspective, this contribution explores how various views on this distinction have differed over time, and what the potential implications of these views are for what lawyers do, or are supposed to do. The focus is first on what constitutes a science. It is indicated that the concept has various meanings, which differ according to how its methodology is defined. Nonetheless, the discipline of law could at least be described as a science in a broad sense, insofar as it makes use of systematic thinking and reasoning. An application of these methods may then reveal that a particular legal rule exists or that someone ought to do something. This practice then differs from the methods used by natural scientists to establish what exists or is in nature. It is further shown that jurists have at times heavily relied on so-called scientific methods to create highly abstract conceptual structures, which in turn elicited the response that law has no autonomous or independent nature, and should be viewed from the perspective of disciplines outside the law. It is concluded that this may be an over-reaction, but that there clearly is room for lawyers to derive some benefit from the perspectives of these disciplines. The relationship between law and art, unsurprisingly, is also contested and depends on how the elusive concept of art is defined. To some, the “art” of law involves nothing less than the creative practice of living according to justice, whereas others simply regard law as an “art” insofar as it entails the creative practice of applying rules skilfully. The contribution then explores to what extent the works of lawyers could be described as works of art, and conversely, to what extent the perspectives of the arts and humanities, as well as the creative works of artists may in turn advance an understanding of the law and its impact on society.

Omnia Mutantur, Nihil Interit. Les Transmissions Du Savoir Juridique En Occident Apres La Periode De Domination Romaine (Ve-Viiie Siecle)

by | Oct 5, 2026 | FUND, FUND V32 I1

Omnia Mutantur, Nihil Interit. Les Transmissions Du Savoir Juridique En Occident Apres La Periode De Domination Romaine (Ve-Viiie Siecle)

Author Ralph Évêque

ISSN: 2411-7870
Affiliations: Associate Professor of Legal History at Paris Nanterre University. A member of the Centre for Legal History and Anthropology (Centre d’Histoire et d’Anthropologie du Droit – CHAD)
Source: Fundamina, Volume 32 Issue 1, p. 121-192
https://doi.org/10.47348/FUND/v32/i1a4

Abstract

This contribution analyses the modes of transmission of legal knowledge in the Western Roman world from the moment when imperial authority ceased to exercise effective power over its western territories, mainly during the fifth century. It argues that while institutional forms of legal education rapidly disappeared after the beginning of this century, Roman legal culture did not. Instead, legal knowledge continued to circulate through non-academic channels, including administrative practices, documentary usages, ecclesiastical milieus and pragmatic forms of legal training connected to the exercise of power. Through a comparative approach, the study highlights both common patterns across the post-Roman West and significant regional variations between Italy, Gaul, North Africa and Spain.

Revisiting the History of Rape Law in South Africa: A Feminist Perspective Centring Women as Victims and Survivors

by | Oct 5, 2026 | FUND, FUND V32 I1

Revisiting the History of Rape Law in South Africa: A Feminist Perspective Centring Women as Victims and Survivors

Authors Pamela Nyawo and Liezl Wildenboer

ISSN: 2411-7870
Affiliations: BA LLB LLM (University of Pretoria). Senior lecturer, Department of Jurisprudence, University of South Africa; BLC LLB (University of Pretoria). Senior lecturer, Department of Jurisprudence, University of South Africa
Source: Fundamina, Volume 32 Issue 1, p. 193-236
https://doi.org/10.47348/FUND/v32/i1a5

Abstract

A vast body of work exists regarding the development of rape law. Historically, it used to be a crime perpetrated only on women. Despite this, for a long time, the law never placed women at the centre of this crime, and even, to some extent, further victimised the complainants during the prosecution of this crime by relying on gender stereotypical views. The rise of feminist theory has impacted on the development of rape law over the past few decades, and South African law is no exception. This contribution aims to give a broad overview of the historical legal development of the prosecution of rape in South Africa. It outlines the history of rape law by describing the development of the common law in this regard, and also studies the impact of the Transkei Penal Code Act 24 of 1886. This study also gives examples from old case law on how the courts viewed this crime, and specifically how the judicial system treated the women complainants in cases of rape. It further traces the impact of a gender-sensitive jurisprudence post 1994. An exploration of this nature stems from an understanding that even though there has been a substantial increase in the scholarship on rape law since 1994, a feminist historical account is lacking. This study seeks to fill this gap by putting women at the centre as both survivors and victims of this offence.