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| the inevitable frivolity |

 

The legal world is a conservative one based on rules, principles and procedures; so much so that all decisions made within court need to be justified within the construct of an entrenched legal system. Despite its tradition, sense of establishment and consistent respect from a vast array of professionals and general society, it is still subject to ‘the inevitable frivolity’.

 

The courts are sometimes faced with claims that are so bizarre in nature that the only ruling that they can give is “dismissed as frivolous”. In the case of United States ex rel. Gerald Mayo v. Satan and His Staff[1], the plaintiff filed a suit against Satan and his staff for violation of his civil rights. Mr. Mayo made the following allegations: 1) that Satan had on numerous occasions caused him misery and unwarranted threats, all of which were against his will; 2) that Satan had placed deliberate obstacles in his path that caused Plaintiff’s downfall; and 3) that by reason of the foregoing facts, Satan had deprived him of his constitutional rights.

 

Even within the context of such blatant frivolity, we can admire the respect that the court grants to the tradition and practice of law. In Mr. Mayo’s case the court noted that, “…even if plaintiff’s complaint reveals a prima facie recital of the infringement of the civil rights of a citizen of the United States, the Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court.” The court went on to state that, “…we question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district… the plaintiff has failed to include with his complaint the required form of instructions for the United States Marshal for directions as to the service of process.” It appears that Mr. Mayo and Hansie Cronje may have had the same legal advise at some stage.

 

As stated, the case was dismissed as frivolous, yet as shown it was justified within the constructs of the legal world. Respect was shown to the nature of the matter despite its frivolity. Fortunately this is one “area” that no court can establish jurisdiction.

 

In the case of Miller v. Silverstein[2] a court again had no problem dismissing a case as frivolous. In this case the plaintiff, who was a Vietnam War veteran, instituted action for damages to the amount of $49 million against the following persons: Larry Silverstein, the alleged owner of “Runway 69”, a Queens dance club, WNBC-TV Channel 4 television station, the City of New York, Presidents Bill Clinton and Richard Nixon, H. Ross Perot, John W. Vessey and Gen. Colin Powell. The court summarized the plaintiff’s claim as follows:

 

     "The gravamen of Miller's complaint is that the named defendants committed or aided others in committing illegal acts, including assassinations, over a twenty-five year period, beginning amidst the Vietnam War, in furtherance of a conspiracy to distribute Laotian heroin. He asserted that the defendants are still engaged in heroin trafficking today and that 'Goldfingers International,' a business that supplies nude dancers to nude dance clubs, is laundering the proceeds of the conspiracy through 'Runway 69.' Miller alleged that the proceeds are used for such purposes as covering up the 'Watergate scandal' and buying the 'cooperation' of the NYC Police Department."

 

Sometimes it are the attorneys who, as officers of the courts are supposed to be the custodians of legal tradition, that abuse the nature of the legal system with hilarious effect. 

 

In the case of Stein v Willow Beach/Colorado River Recreation Association[3], an attorney trying to recover his fees represented himself but had his case dismissed due to the fact that he failed to appear for a scheduled court hearing. He appealed his decision to dismiss his case on the basis that it would be unfair to penalize the client for the mistakes of his attorney. In opposing his appeal the defendant summarized the ridiculous nature of his claim as follows:

 

     "Uniquely, Plaintiff herein, an attorney litigating in pro se, is alleging that he has caused his client (himself) irreparable harm for which he should not be made to bear the mistakes of his attorney (also himself). Defendants, jokingly, have dubbed this the 'Sybil' defense."

The majority of claims are in fact legitimate and lack frivolity, yet what can still make up for “the inevitable frivolity” is the response of the court itself. Take for example the method of dispute resolution to resolve a silly dispute which was barring progress in a legitimate claim in the following case of Avista Management v. Wausau Underwriters Insurance.[4]

 

In this case a hotel investment firm sued an insurance company for allegedly not paying an insurance claim fast enough after Hurricane Charley, attorneys for the parties seemed at odds with each other from the get-go. When it came down to where to depose a witness, the attorneys would do no better. Not being able to select a location between themselves, the court was asked to intervene. U.S. District Judge Gregory A. Presnell was not amused. After chastising the attorneys for not being able to agree on even the most simplest of things, Judge Presnell issued his written ruling:

 

     "[T]he Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the [Courthouse]. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of 'rock, paper, scissors.' The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006."

 

The two lawyers met on June 7, 2006, a day later, and agreed to the location for the deposition, making the game unnecessary. For fear of being held in contempt of court, defense counsel filed a motion asking the judge to call the game off. Plaintiff's counsel joined in the motion. The judge vacated his previous ruling with the following, "With civility restored (at least for now), it is ordered that the motion is granted." 

 

There will always be frivolous claims and ridiculous allegations and while most of these die a quiet death in a forgotten file in the corner of an attorney’s office, some of them will inevitably reach the steps of the court house. Whether it is heartening or frivolity in itself, it is clear that the courts will always attempt to show respect to its procedures, rules and principles, despite the losing party often feeling like the judges should have at least played the best of three rounds of rock, paper and scissors.

e have all heard the stories; the anecdotes lawyers regale their friends with at dinners of the weird characters that seem to revel in the drama of litigation: the vexatious litigant.

 

While most people try to avoid becoming embroiled in legal proceedings, there are some that seemingly cannot get through the day without their fix of issuing summons or launching some application. And no, this does not only happen in America or on television – even boutique firms in Cape Town get the odd enquiry from a person that wants to sue the Minister of Justice (and everybody else) for a R100 million because, ever since his father apparently shot him ten years ago on their front lawn to impress random girls walking by, everybody has conspired against him and caused him to lose his marbles. “Everybody” will inevitably also include the attorney who shall, after listening politely to his ramblings for an hour, decline the offer to represent him.

 

The ones that are dependant on attorneys are easy enough to stop – most attorneys simply won’t act on their behalf if it is clear that the intended legal proceedings are frivolous or vexatious. But beware the person with some legal background (usually an unfinished law degree or sometimes simply some self-taught knowledge of the court rules) that represents himself – they usually have fools for counsel.

 

Last year the Cape Argus reported of a Cape Town man that was apparently involved in 15 legal proceedings at the time, including several labour-related matters against his former employer, Mr. Delivery, proceedings The Cape Town International Convention Centre and a R300 million action against Media 24 after Die Burger published a report about him. The man was apparently a part-time law student that drafted his own documents.

 

Most attorneys or advocates who have been chastised in court by a judge or magistrate would admire the thick skin and tenacity of the average vexatious litigant. Continued lack of success and criticism from the bench just do not seem to stifle their lust for litigation. In reviewing the plethora of proceedings instituted by a particular set of litigants, the Court in Ernst & Young and Others v Beinash and Others 1999 (1) SA 1114 (W) characterised the proceedings, variously, as an abuse of Court procedure to wage a personal vendetta; proceedings launched without reasonable grounds constituting persistent and vexatious proceedings or proceedings which had the effect of being vexatious; proceedings aimed at harassing and inconveniencing the respondents involved in them; action launched recklessly and without any reasonable grounds at all and without any prospect of success; proceedings constituting an expensive source of inconvenience and aggravation in the relentless pursuit of the their ulterior purpose; and an irrational, unbalanced and reckless devotion to a vendetta they had decided to wage against their opponents. At that stage their tally was such: of the 45 different proceedings they had instituted 27 had been unsuccessful, they succeeded in one application for leave to appeal (although the appeal was later dismissed) and 17 matters were unresolved.     

 

Luckily the Vexatious Proceedings Act (Act 3 of 1956) offers some manner of protection against these litigious fiends. The State Attorney or any other person may, in the circumstances set out in Sections 2(1)(a) and (b) respectively, apply for an order against a vexatious litigant to the effect he or she may not institute legal proceedings without the leave of the court. If that person then does institute any proceedings in contravention of the order, shall be guilty of contempt of court liable for a fine or to imprisonment for not more than six months.

 

But seriously, what would the practice of law be without the likes of Mr Fitchet in the saga of Fitchet v Fitchet 1987 (1) SA 450 (E)? Every now and then, for the sake of practitioners’ morale, we do need someone to claim that a random third person conspired with his ex-fiancée’s mother to assassinate him by driving his car out in front of Mr Fitchet while he was travelling down a hill on his bicycle, and thereby trying to cover up the attempt on his life as a motorcar accident; and, four years later when the driver emigrated to Australia (apparently because the details of the attempt on Mr. Fitchet’s life leaked out); the driver and the ex-fiancée’s mother then conspired to get the ex-fiancee’s mother’s attorney’s daughter to induce Mr. Fitchet to marry her solely in order to obtain false mental illness diagnosis, by getting Mr. Fithcet ill with drugs and lying to a doctor regarding his bahaviour; his wife then divorced him with a “summons filled with lies” and he lost everything.

 

The learned judge, to his credit, remarked that he was “satisfied that plaintiff’s claim against [Mrs. Fitchet] is one standing outside the region of probability altogether”

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