MAJIEDT J [70] There the Court found, in reliance on Beinash, that “[t]here can be no doubt that every Court is entitled to protect itself and others against an abuse of its processes”.73 But that dictum cannot be invoked as support of the respondents’ stance. That case is plainly distinguishable as it related to an exception to the Biowatch74 rule and this does not give rise to a defence to a substantive claim. This Court merely found that improper motive is a factor to be considered when costs orders are made in constitutional cases. Furthermore, Lawyers for Human Rights differs, because there, court procedures were abused, while in a typical SLAPP suit, litigation is used as a means to some end that might infringe rights. That case can therefore hardly be applied, without more, to the present instance as support for the submission that merits play no role in an abuse of process enquiry. [71] In Phillips,75 the facts were as follows. A private prosecution was initiated in relation to fraudulently drawn cheques. It was argued that the private prosecution was instituted as collateral, in order to extort money from the applicant in an amount greater than the fraudulent cheques rather than having criminal justice done to the offender. The Supreme Court of Appeal therefore had to determine whether the private prosecution instituted by the respondent against the applicant constituted an abuse of process. That Court held that “[w]here the Court finds an attempt made to use for ulterior purposes machinery devised for the better administration of justice it is the Court’s duty to prevent such abuse”.76 That power, however, was to be exercised with great caution and only in a clear case. The gravamen of the judgment is that although motive is irrelevant in the case of public prosecutions, it is not permissible to use the power to prosecute for personal financial gain. To do so undermines the objectivity of the prosecuting process. It is not the motive, but the independence of the private prosecutor which was the problem. Again, this case is clearly distinguishable. 73 Id at para 20. 74 Biowatch above n 71. 75 Phillips above n 18. 76 Id at 565G-H. 32