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Theory, practice and the legal enterprise 381
constitutional analysis and the theoretical importance of these stages. Even if it
has such a grasp, the failure to indicate the differences between them in the
judgment leads to confusing doctrine, a matter that foreshadows developments
in the last case we consider.
Mohlomi was followed by Beinash v Ernest and Young. 63 That case
considered another kind of fetter on the right of access to courts, namely,
a provision of the Vexatious Proceedings Act. This provision essentially
allowed for an application to be made to a judge to bar a particular
applicant from instituting actions in court where such an applicant had
persistently and without reasonable grounds instituted legal proceedings.
Once such an order is made, an applicant may litigate in future only if a
judge is satisfied that the proceedings are not an abuse of the process of
the court and there are prima facie grounds for proceeding. 64 In this
case, the applicants had brought a significant number of cases against a
particular respondent and had been barred from bringing any further cases
unless the special circumstances envisaged in the Act were met. The
applicants challenged the constitutionality of this provision, arguing that
it unjustifiably infringed their right of access to courts (section 34 of the final
Constitution).
The Court, per Mokgoro J, dismissed the constitutional challenge to the
provision. There are a number of puzzling elements to its analysis. First, the
Court engages in constitutional analysis whilst purportedly seeking to decide
whether to grant leave to appeal. It would have seemed more sensible to grant
such leave and then engage in such constitutional analysis. This mode of
proceeding also leads the Court to conduct a more cursory analysis than may
have been required. Secondly, the Court does not engage in any detailed
analysis of the requirements of section 34: Rather, it simply moves directly
from the claim that the very purpose of the legislation was to limit the right of
vexatious litigants to access courts to the finding that a violation of section 34
had thus taken place. Notably, the judgment makes no mention of Mohlomi in
seeking to decide what falls within the ambit of section 34: This is a strange
omission considering that Mohlomi had articulated a test for when the right of
access to courts had been violated. 65 The Court appears here to avoid
engaging with even the existing applicable law governing the area. The Court
then conducts a brief limitation’s analysis and finds that the section in question
is a justifiable limitation of section 34. 66 Whilst the Court had placed much
emphasis on the less restrictive means component of the limitations analysis in
Mohlomi, it glosses over this question in Beinash, simply claiming that the Act
strikes ‘the appropriate balance of proportionality between means and ends’. 67
63 1999 2 SA 116 (CC).
64 Sec 2(1)(b) of the Vexatious Proceedings Act 3 of 1956.
65
Though Mohlomi was decided in terms of the interim Constitution, the wording
66
between the two Constitutions does not differ markedly.
Beinash (n 63 above) paras 17 - 21. For an earlier criticisms of this case see S Woolman
67
‘The right consistency’ in (1999) SAJHR 166.
Beinash (n 63 above) para 21.