The persistent and the vexatious – The ersatz litigant

ersatz litigation
01 Apr 2020

It is a tale as old as time if you are an ersatz litigator – you lose once, you try again, regardless of merit and good faith. The notorious second, third and fourth bite at the cherry. Litigation is an expensive exercise for all parties involved especially in view of the expense and risk all too common in litigious proceedings. More often than not a party (regardless of merits) has to throw in the proverbial towel due to the continuous and incessant plundering of resources by the ersatz litigation which your opponent has embroiled you in. The intransigence of an ersatz litigant is notorious. How can you stop them?

Any legal practitioner, be it in the IP field or elsewhere, will say that it is trite law that piecemeal litigation is to be avoided and that a party should not be “twice harassed”, or “vexed twice” in the same manner. But why does the thrust of these statements appear unbearably light? Has it become so that our opponents have a seemingly unlimited rainy-day fund for litigation – filled with alternative defences and/or attacks to be brought for the infamous second bite at the cherry?

Res Judicata

The questions posed above are in theory readily answered by way of the common law doctrine of res judicata, meaning “the matter has already been adjudicated upon”. The doctrine is founded on public policy which requires that litigation should not be endless and, on the requirement of good faith, would not permit some things being demanded (or adjudicated on) more than once.

The common law requirements for a plea of res judicata are as follows:

A final judgment by a competent court –

  • between the same parties;
  • based on the same cause of action; and
  • the same relief.

Justice Cameron, retired justice of our apex court, the Constitutional Court, held in a judgment regarding res judicata, in the context of a patent case, that “the doctrine of res judicata has ancient roots as an implement of justice” and its “roots lay in good sense and fairness”.

The doctrine of res judicata coincides with the Henderson-principle or “once and for all” rule (a long-standing principle of English law and our own) which confirmed that a party may not raise any claim in subsequent litigation which they aught properly to have raised in a previous action – litigants are obliged to present their entire case “once and for all”. The effect is accordingly to remedy the mischief of bringing a second action when the first should have sufficed.

Inherent jurisdictions of the High Courts of South Africa

It bears mentioning that the High Courts of South Africa are armed with the inherent jurisdiction to prevent the abuse of its own process in the form of vexatious litigation. It is open for the court to, amongst other things, dismiss an action, stay proceedings, interdict threatened proceedings and the like.

Statutory Remedies

There are furthermore also statutory remedies available under the apt-named Vexatious Proceedings Act 3 of 1956 (“VP Act”), the Patents Act 56 of 1978 (“Patents Act), and the Designs Act 195 of 1993 (“Designs Act”).

VP Act:

Although a vexatious action is not defined in the VP Act, it authorises a court to prohibit proceedings by any person who has persistently and without any reasonable ground instituted legal proceedings against another. Accordingly, in order for relief to be obtained in terms of the VP Act, an applicant bears the onus of proving two threshold requirements:

  • the respondent has ‘persistently’ instituted legal proceedings; and
  • that such proceedings have been ‘without reasonable ground’.

Patents Act and Designs Act:

Section 70(1) of the Patents Act and sections 37 (1) and (2) of the Designs Act provide special provisions to counter unfounded threats of legal proceedings for the alleged infringement of a patent right/registered design right.

In essence the respective sections provide that if any person by circular, advertisement or otherwise threatens any other person with proceedings for infringement of a patent/registered design, any person aggrieved by such a threat may, whether the person making the threat is or is not entitled to or interested in a patent / registered design or an application for a patent / registered design, institute proceedings. The following relief may be sought:

  • a declaration to the effect that the threats are unjustifiable;
  • an interdict against the continuance of the threats; and
  • damages, if any, he has sustained in consequence of the threats.

A party facing an onslaught of ersatz litigation does indeed have an array of remedies at its disposal and should seek legal advice as to how to ensure that it is not “vexed twice”.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
At van Rooy

At van Rooy is a Director and Patent Attorney at Kisch IP. His expertise includes: Patent litigation; Plant Breeders’ Rights and Plant Variety protection and litigation; Patent filing, prosecution and... Read more about At van Rooy

Izaan Kuschke

Izaan Kuschke is an associate at Kisch IP's patent department. She is an Assistant for the University of Pretoria’s Centre for Intellectual Property Law. Her technical areas of expertise include:... Read more about Izaan Kuschke


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