n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Security for costs in corporate litigation and the right of access to courts : Giddey v J C Barnard and Partners : case comment

Abstract

Section 34 of the Constitution of the Republic of South Africa, 1996 gives every person 'the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum'. (For a general discussion of the right of access to courts, see GE Devenish The South African Constitution (2005) in pars 151-6 at 168-73). However, s 36 of the Constitution permits a limitation by way of a law of general application, provided that the limitation is reasonable and justifiable. An example of such a limitation can be found in s 2(1)(a) of the Vexatious Proceedings Act 3 of 1956, which provides that a court may order that no legal proceedings be instituted if it is satisfied that a person has 'persistently and without any reasonable ground instituted legal proceedings'. This limitation was held to be reasonable and justifiable, taking into account all the relevant factors (Beinash & Another v Ernst & Young & Others 1999 (2) SA 116 (CC) in par 16 at 122-3).