- Proceedings instituted without leave under the Vexatious Proceedings Act are a nullity, even where the underlying dispute predates the restriction order.
- Default judgments granted in the minister’s absence were erroneously made and exposed the public purse to severe financial risk.
- Despite advancing strong defences, the minister was denied costs to avoid rewarding delay or encouraging vexatious litigation.
The Western Cape High Court has set aside default judgments exceeding R100 million against the Minister of Police, ruling that the claims were legally void because they were instituted by a declared vexatious litigant without the required leave of court.
In a judgment that sharply criticises both abusive litigation and failures within the State Attorney’s office, Acting Judge Ajay Bhoopchand held that the orders should never have been granted and warned of the grave consequences such procedural lapses can have for public finances.
The matter came before the Western Cape High Court between the Minister of Police, as applicant, and Gary Walters van der Merwe, as respondent. Van der Merwe pursued claims against the minister arising from property seized during a police investigation, despite having been declared a vexatious litigant and prohibited from instituting legal proceedings without prior leave of court.
Long-running dispute over seized helicopter data plates
The dispute originated in March 2008 when the South African Police Service and the Hawks conducted a raid on Van der Merwe and seized several items, including helicopter data plates. Litigation over the lawfulness of the search, seizure, and retention of the items extended over more than a decade and ultimately culminated in findings against the authorities.
Judge Bhoopchand recorded that the warrants litigation reached finality in the higher courts. “The apex court delivered its judgment on 7 June 2011. While the court cases were ongoing, the registrar of this court kept the seized items, and the respondent regularly inspected them.”
Despite the conclusion of that litigation, disputes over the fate of the seized property persisted. On 21 September 2021, Van der Merwe was declared a vexatious litigant in terms of Section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956, barring him from instituting any legal proceedings without first obtaining leave of court.
Default judgments obtained without leave
In August 2022, Van der Merwe nevertheless launched a fresh application under Section 31(1)(a) of the Criminal Procedure Act, seeking the return of the seized items or compensation for their alleged loss. He did so without applying for or obtaining leave to litigate, despite the standing restriction order.
In July and November 2024, default orders were granted in his favour. These included declarations that the Minister of Police was liable for the missing helicopter data plates and that Van der Merwe was entitled to compensation exceeding R100 million. Neither the minister nor the prosecuting authorities were represented when the orders were granted.
The minister subsequently approached the court for rescission under Rule 42(1)(a) of the Uniform Rules of Court and the common law. Judge Bhoopchand explained the applicable threshold. “The threshold to succeed, considering all factors, is not insurmountable. The minister had to convince this court under Rule 42(1)(a) that the first and second orders were erroneously sought or erroneously granted, failing which, he had to demonstrate good or sufficient cause for the default orders to be rescinded.”
The Vexatious Proceedings Act as a strict procedural bar
Central to the court’s reasoning was the operation of the Vexatious Proceedings Act. Judge Bhoopchand stressed that the statutory restriction is absolute and not a mere technicality. “The phrase ‘no legal proceedings shall be instituted’ is linguistically absolute as a peremptory ban against the initiation of proceedings,” he held.
The judgment records that Van der Merwe “did not file a formal application for leave to litigate his section 31 CPA application.” Although his vexatious litigant status was raised during the hearing and the restriction order was handed up, the court found this was insufficient. “Disclosure, and here too, at the instance of the Court, is not equivalent to compliance with a requirement that seeks to protect the Court’s integrity.”
Arguments that the proceedings were merely a continuation of earlier litigation were rejected. “The Respondent’s failure to seek leave when he instituted the proceedings in 2022 cannot be retroactively cured by asserting historical continuity,” Judge Bhoopchand wrote. “The Act applies to all proceedings instituted after the restriction order. It does not ask when the cause of action arose, nor does it make an exception for a pre-existing cause of action.”
Minister unaware as state attorney fails to act
The court accepted that the Minister of Police was not wilfully absent when the default orders were granted and placed responsibility squarely on the State Attorney. “The minister did not know about the proceedings as the State Attorney did not inform him of them,” Judge Bhoopchand found.
He added that this version was not disputed. “There was no election on the part of the minister to be absent, and the first order was obtained on the incorrect assumption that the minister had been properly informed.” The court held that the default judgments were granted on a fundamentally flawed procedural footing.
Speculative damages and weak valuation evidence
Beyond the procedural defects, the court found that the minister advanced “several bona fide defences with more than reasonable prospects of success.” These included disputes over liability for the alleged loss of the data plates and the validity of the quantum claimed.
Judge Bhoopchand was particularly critical of the valuation evidence. “The respondent, as his own expert on the quantification of the damages, lacked the qualifications or the independence to value the lost data plates.” He concluded that “the claim advanced, seeking damages in excess of R100 million for the alleged loss of helicopter data plates, is on the papers, beset with legal and factual deficiencies.”
Costs and protection of the public purse
On costs, the court declined to favour either party. Judge Bhoopchand emphasised that fairness lay between the extremes. “The minister should not be rewarded for his tardiness, nor should the respondent be encouraged in his vexatious approach to litigation. Each party must therefore bear its own costs.”
In conclusion, the judge underscored the public interest implications of allowing procedurally defective claims to stand. “The respondents’ claim, instituted without the requisite leave and burdened by substantial legal and factual defects, cannot be permitted to stand by default, particularly where its consequences for the public purse are potentially profound.”
Final order
The order granted on 31 July 2024 was rescinded in its entirety and the default judgment was set aside. Paragraphs 3 and 4 of the order granted on 20 November 2024 were also rescinded.
Paragraph 3 stated that if the minister and prosecuting authorities did not file any appearance to oppose the amount claimed by Van der Merwe within five days before the postponed hearing date, the hearing would proceed on an unopposed basis. Paragraph 4 reserved the issue of costs for later determination. Each party was ordered to bear its own costs.
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