Is all fair in love and lawfare? Court clamps down on litigation abuse
There must be an end to litigation. This is a fundamental doctrine in South African law and has been reiterated by our judiciary in numerous cases. But what happens when a litigant refuses to abide by court orders and resorts to ‘lawfare’ tactics to circumvent any relief granted against them?
Image source: Freepik
This question arose before the high court in the case of CRW v LMW and Another.
Facts
The parties in the case of CRW v LMW are former spouses who were embroiled in acrimonious divorce proceedings for the better part of six years, and whose divorce was eventually finalised on 26 August 2020.
The divorce order provided that CRW (the former husband) is required to pay an amount of R16.8m to LMW (the former wife) in respect of her accrual claim. CRW had also couched his personal property in a trust in order to ensure that LMW had no claim to such assets during the divorce.
Judge Salie-Hlophe however found that the trust was clearly CRW's alter ego and that he was the beneficial holder of the assets in the trust. As a result, the divorce order stipulated that all the assets and liabilities of the trust were to be transferred to him in his personal capacity within 60 days of the divorce order.
Not only were the assets and liabilities held by the trust never transferred to CRW's personal estate, but he attempted to circumvent the terms of the divorce order by instituting a barrage of litigation.
Various court applications launched
CRW launched an application for leave to appeal the divorce order which was refused by the judge that presided over the trial. Thereafter, he petitioned the Supreme Court of Appeal with an application for leave to appeal, and special appeal to the Judge President of SCA and ultimately the Constitutional Court. These applications were all dismissed with costs.
The fundamental legal principle following the refusal of CRW's various applications for leave to appeal the divorce order is that the issues determined by Judge Salie-Hlophe in the divorce matter are res judicata, meaning the matter is judged, and cannot be reconsidered by another court.
Unsatisfied with his strategy at evading the divorce order being thwarted, CRW instituted an urgent application on New Years Eve, no less, to stay the provisions of the divorce order for a period of six months. Fortunately, this application was dismissed, and CRW was ordered to pay LMW's legal costs in opposing the urgent application.
Thereafter, CRW instituted no fewer than three different applications in the maintenance court, in which he sought to amend or stay the divorce order or to reduce the maintenance he was liable to pay his former spouse. These applications were also dismissed with cost orders being awarded to LMW in each one.
Next step: reporting the legal team
Having found no success in challenging the divorce order, CRW then shifted his focus to the legal representatives. He lodged complaints against LMW's attorneys and advocates, all of which were dismissed.
CRW, continuing his streak of refusing to accept any finding against him, appealed the Legal Practice Council rulings in favour of LMW's attorneys, the outcome of which is still pending.
When this process brought him no joy, CRW turned on his own legal team and reported his attorney and advocate to the Legal Practice Council and Cape Bar Council respectively, as well as his former financial expert to the South African Institute of Charted Accountants. He filed a further complaint against Judge Salie-Hlophe with the Judicial Services Commission.
He referred each of the legal practitioners who had been involved in this matter, as well as Judge Salie-Hlophe, to the Office of the Legal Services Ombud and accused them of perjury, fraud and malfeasance in defrauding high net-worth litigants in family law matters.
CRW clearly embarked on a barrage of litigation in an attempt to secure some form of punishment against those who he believed had colluded against him and refused to entertain his baseless requests for overturning the divorce order.
Family Law
Divorce orders v Schools Act: Who can schools hold liable for unpaid fees?
Isabel van den Ende 8 Apr 2025
The current application before the court
Having gone almost four years without obtaining any of the relief set out in the divorce order, LMW successfully applied to court in 2024 for an order in terms of Rule 46A to declare a property held by the trust to be executable. This would allow the property to be auctioned in order for the funds due to her in terms of the divorce order to be realised.
CRW, no doubt unable to accept that LMW is entitled to any of the funds awarded to her in the divorce order, launched an application to rescind the 2024 Order declaring the property executable. The application was set down to be heard in September 2025, however the auction was scheduled for 4 July 2025.
CRW consequently launched an urgent application to stay the execution of the 2024 Order, seeing as the rescission application would only be heard after the auction.
LMW opposed the application and launched a counter-application, in which she sought the court to direct CRW to furnish reasons as to why he should not be declared a vexatious litigant, preventing him from launching any further litigation against her and directing that he furnish security for her legal costs.
Family Law
Declaring insolvency - legitimate or elaborate ruse to avoid paying child support?
Kaamilah Paulse 1 Oct 2024
The application to stay the execution of the property
CRW's argument in this application centred around the fact that the auction would allegedly cause him irreversible harm and that the property sought to be sold in execution belongs to the trust and not himself.
He further alleged that the fact that the trust was found to be his alter ego would be challenged in the rescission application and that the counter-application launched by LMW was part of a pattern of bad-faith litigation as per his complaints to the Legal Practice Council and the Ombud.
Our courts are clothed with the power to suspend the operation and execution of any order for such period as they may deem fit in terms of Rule 45A. The court considered the facts before it to determine whether, in this case, real and substantive justice required a stay of the execution of the 2024 Order.
CRW averred that the grounds for the rescission application are that the divorce order is impossible to comply with, it facilitates fraudulent enrichment by legal practitioners and renders him vulnerable to legal and financial ruin and homeless.
The court found these grounds to be entirely untenable due to the fact that the trust was found to be his alter ego in the divorce order, the correctness and enforcement of which is res judicata, and that the evidence of his financial means was before the court when the divorce order was granted.
As such, the court found the application to stay the execution to be nothing more than CRW's furtive attempt to take a second bite at the cherry. The court found that real and substantive justice demands that the execution of the 2024 Order declaring the property executable must proceed, and CRW's application was dismissed with costs.
Vexatious litigant
Having found that CRW's application was nothing more than yet another attempt to rewrite the terms of the divorce order, the court naturally found that the lawfare perpetrated by CRW caused serious prejudice to LMW, who had no option but to defend the proceedings.
The court also took a stern view to CRW's flagrant disregard for previous court orders, while still embarking on a barrage of litigation, and found him to have abused the court processes in an attempt to evade his obligations in terms of a court order.
As such, it ordered that CRW is called upon to show cause why he should not be declared a vexatious litigant and why an order should not be taken to preclude him from launching any legal proceedings against LMW.
Conclusion
Let this case be a warning to all litigants: one cannot use a Stalingrad approach to evade compliance with court orders or attempt to out-litigate another. This judgment serves as confirmation that justice must always prevail, abuse of court in the form of unending litigation will be punished and no one is above the law.
About the author
Bronwyn Samuel is an Associate and Kaamilah Paulse, a Director, at Herold Gie Attorneys.