Dismissal For Want Of Prosecution In South African Law: A Strategic Imperative For Defendants

1. INTRODUCTION

In a recent Johannesburg High Court judgment, the plaintiff, Karanie, instituted action against the life insurer, the defendant, in December 2012 for payment of benefits allegedly due under a life insurance policy. The Defendant defended the action and filed a counterclaim to recover payments already paid under the policy. The matter was then enrolled for trial on 4 May 2015. The case was, however, postponed to a future unknown date with the Plaintiff being ordered to pay the costs for postponement. The costs were then taxed, but the Plaintiff failed to pay these taxed costs.

For several years, the Plaintiff took no meaningful steps to advance the matter and the matter remained dormant. In 2023, the court stayed the proceedings pending the payment of the taxed costs. Despite an undertaking in 2024 to settle the costs, the Plaintiff still failed to do so, leaving the matter effectively stalled and incapable of progression. The Defendant consequently applied for dismissal of the Plaintiff’s claim due to inordinate delay and failure to prosecute. The question before the court was whether it should exercise its discretion and dismiss the Plaintiff’s claim for want of prosecution.

2. THE LAW & THE REQUIREMENTS FOR BRINGING SUCH AN APPLICATION

The court confirmed that courts have inherent jurisdiction to dismiss the action for want of prosecution. However, the power should still be used sparingly. The court referred to the case of Cassimjee v Minister of Finance wherein the Supreme Court of Appeal held that the following requirements must be present:

1. There should be a delay in the prosecution of the action.
2. The delay must be inexcusable.
3. The Defendant must be seriously prejudiced by such delay.

The court stated that this will involve a close examination of all the relevant circumstances and these include the length of the delay, the reasons thereof and prejudice caused. The court confirmed that no hard-and-fast rules and nor is a single factor decisive. All the relevant factors should be weighed together holistically.

3. FINDINGS OF THE COURT

The court held that the requirements for dismissal for want of prosecution were satisfied and exercised its discretion to dismiss the Plaintiff’s claim. The court first made it clear that even where delay is inordinate, the application will not succeed in the absence of serious prejudice to the defendant. However, in the present case, prejudice to the Defendant was not only “real but substantial”. More than thirteen years had elapsed since the institution of the action, and nearly eleven years since the matter was last enrolled for trial. During this period, the plaintiff took no meaningful steps to advance the proceedings.

The explanations advanced by the Plaintiff were found to be inadequate and unsupported by the objective facts. The Court emphasised the Plaintiff’s persistent failure to comply with the costs order, which resulted in a stay of proceedings and rendered the action incapable of progression. The Court found that the Defendant had suffered serious prejudice, as the claim arose from events dating back to 2009, and the passage of time had adversely affected the availability and reliability of evidence, especially expert testimony. The Defendant also faced ongoing uncertainty due to the unresolved claim and was procedurally constrained from progressing the matter while the stay remained in place.

4. CONCLUSION

The decision illustrates a compelling and justified application of the Court’s discretion in circumstances of prolonged and unexplained delay. Several years had passed without any concrete progress being made and without justified reasons. Litigants should not be prejudiced by inordinate delays. The Defendant did everything on its part to comply with court procedures, however, the same was not done by the Plaintiff. Since the Plaintiff did not comply with the costs order and the proceedings were stayed as a result thereof, the Defendant was also not able to finalise its counterclaim. Therefore, the continued existence of the action is inconsistent with fairness and proper administration of justice, as the delay was evidently inordinate, Inexcusable and prejudicious to the Defendant.

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