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[2012] ZASCA 101
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Cassimjee v Minister of Finance (455/11) [2012] ZASCA 101; 2014 (3) SA 198 (SCA) (1 June 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 455/11
Reportable
In the matter
between:
MOHAMMED
CASSIMJEE
….................................................................
Appellant
and
THE MINISTER OF
FINANCE
…........................................................
Respondent
Neutral citation:
Cassimjee v Minister of Finance
(455/11)
[2012] ZASCA 101
(1 June 2012)
Coram:
Mthiyane
DP, Brand and Cachalia JJA, Southwood and Boruchowitz AJJA
Heard:
22 May
2012
Delivered:
1
June 2012
Summary:
Procedure – inordinate delay in prosecuting claim –
inherent power of the court to prevent abuse of its process –
whether discretion properly exercised to dismiss action for want of
prosecution.
____________________________________________________________________
_____
ORDER
__________________________________________________________________
On appeal from:
KwaZulu-Natal High Court, Durban (Seegobin AJ sitting as court of
first instance):
The appeal is
dismissed with costs.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
BORUCHOWITZ AJA
(MTHIYANE DP, BRAND and CACHALIA JJA, SOUTHWOOD AJA concurring)
[1]
This
is an appeal against the decision of a high court to dismiss an
action for want of prosecution. The order was granted by the
KwaZulu-Natal High Court, Durban (Seegobin
AJ)
on 29 July 2010 and the appeal is with leave of that court.
[2]
On
23 March 1977 officers of the Department of Customs and Excise seized
two tankers from the appellant who operated a transport
business. On
16 November 1977 the appellant instituted an action against the
Commissioner for South Africa Revenue Service (the
Commissioner) in
the then Durban and Coast Local Division of the Supreme Court in
which he claimed return of the tankers that had
been seized,
alternatively, a sum of money which then represented their value. In
addition, the appellant sought payment of an
amount as damages
representing the loss of the use of the tankers from the date of
their seizure on 23 March 1977.
[3] Over 32 years
have passed between the date of the institution of the action and the
delivery of the judgment appealed against.
What transpired during the
intervening period is largely common cause and can be briefly stated.
The Commissioner delivered a request
for further particulars to the
summons on 25 January 1978 and the appellant furnished a response
thereto on 13 October 1978. On
2 May 1979 the Commissioner delivered
its plea and a claim in reconvention. The reconventional claim was
for the payment of duty
in respect of diesel oil that the appellant
had supplied to certain unidentified persons during the period 6 May
1976 to June 1977.
A request for further particulars to the plea and
claim in reconvention were thereafter delivered, and on 31 March 1980
an application
was brought to compel the furnishing of the further
particulars. The particulars were furnished on 23 July 1980. The
Commissioner
took no steps to secure the delivery of a plea to the
counter-claim and the pleadings were never closed. On 27 January 1981
the
appellant delivered a notice calling upon the Commissioner to
produce certain documents referred to in the plea and counter-claim
but this request elicited no response.
[4] A period of some
20 years then elapsed during which no steps were taken by either
party to
advance
the action. On 27 November 2001 a firm of attorneys
placed themselves on record for the appellant and gave notice
purporting to
place the matter on the awaiting trial roll. In the
absence of a plea to the claim in reconvention the placement on the
trial role
was premature. In consequence this step did nothing to
bring the matter nearer to completion. In February 2002 the state
attorney
specifically enquired from the appellant’s then
attorneys ‘is your client serious in pursuing this matter’,
whereupon
the appellant’s attorney confirmed in April 2002 that
he was. A further four-year period was permitted to elapse during
which
neither party took steps to advance the action.
[5] On 11 August
2006 a new firm of attorneys placed themselves on record on behalf of
the appellant and a notice of intention to
amend the particulars of
claim was delivered. On the same day the Commissioner delivered a
notice of objection to the proposed
amendment which notice, it is
common cause, did not comply with the provisions of rule 28(3) of the
Uniform Rules of Court. On
3 September 2006 the appellant issued
a notice in terms of rule 30(2)(
b
)
to set aside the respondent’s notice of objection as an
irregular proceeding. The appellant then brought an application
in
terms of rule 30 to set aside the objection as an irregular
proceeding.
[6] On 28 November
2006, the Commissioner delivered an application in which the
following relief was claimed: that the Commissioner
for South African
Revenue Service be substituted for the Minister of Finance (the
respondent); that the application to set aside
the notice of
objection as an irregular step be dismissed with costs; that both the
action and claim in reconvention in the main
action be dismissed and
that the appellant pay the costs of the application.
[7] The dismissal of
the appellant’s action was sought on the ground that it had
been dormant since 1981 and that to permit
its revival would give
rise to irremediable prejudice amounting to an abuse of the process
of court. The appellant’s answering
affidavit to this
application was filed 18 months later in June 2009.
[8] The high court
has the inherent power, both at common law and in terms of the
Constitution (s 173), to regulate its own process.
This includes the
right to prevent an abuse of its process in the form of frivolous or
vexatious litigation (see
Western Assurance Co
v Caldwell’s Trustee
1918 AD 262
at
271;
Corderoy v Union Government (Minister of
Finance)
1918 AD 512
at 519;
Fisheries
Development Corporation of SA Ltd v Jorgensen & another
1979 (3) SA 1331
(W) at 1338F-G;
Beinash
& another v Ernst & Young & others
1999
(2) SA 116
(CC) paras 10 and 17).
[9] Section 34 of
the Constitution provides that everyone has the right to have a
dispute that can be resolved by the application
of law decided by a
court or tribunal in a fair public hearing, but a limitation of the
protected right is permissible provided
that such limitation is
reasonable and justifiable. The right of a high court to impose
procedural barriers to litigation on persons
who are found to be
vexatious was recognised in
Beinash
(supra
para 17). In that matter it was held that restricting access to
vexatious litigants was indispensable to protect and secure
the
rights of those with meritorious disputes and necessary to protect
bona fide
litigants, the processes of the courts
and the administration of justice. Compare also
Giddey
NO v JC Barnard and Partners
[2006] ZACC 13
;
2007 (5) SA 525
(CC) paras 15-18. The same considerations, I believe, would apply to
an abuse of court procedures.
[10] An inordinate
or unreasonable delay in prosecuting an action may constitute an
abuse of process and warrant the dismissal of
an action. See,
Verkouteren v Savage
1918 AD 143
at 144;
Schoeman &
andere v Van Tonder
1979 (1) SA 301
(O) at 305C-E;
Kuiper &
others v Benson
1984 (1) SA 474
(W) at 476H-477B;
Molala v
Minister of Law and Order
1993 (1) SA 673
(W) at 676B-679I;
Bissett & others v Boland Bank Limited & others
1991
(4) SA 603
(D) at 608C-E;
Sanford v Haley NO
2004 (3) SA 296
(C) para 8;
Gopaul v Subbamah
2002 (6) SA 551
(D) at 558F-J;
Golden International Navigation SA v Zeba Maritime Co Ltd
;
2008 (3) SA10 (C)
Zakade v Government of the RSA
[2010] JOL
25868
(ECB).
[11] There are no
hard and fast rules as to the manner in which the discretion to
dismiss an action for want of prosecution is to
be exercised. But the
following requirements have been recognised. First, there should be a
delay in the prosecution of the action;
second, the delay must be
inexcusable and, third, the defendant must be seriously prejudiced
thereby. Ultimately the enquiry will
involve a close and careful
examination of all the relevant circumstances, including, the period
of the delay, the reasons therefore
and the prejudice, if any, caused
to the defendant. There may be instances in which the delay is
relatively slight but serious
prejudice is caused to the defendant,
and in other cases the delay may be inordinate but prejudice to the
defendant is slight.
The court should also have regard to the
reasons, if any, for the defendant’s inactivity and failure to
avail itself of remedies
which it might reasonably have been expected
to do in order to bring the action expeditiously to trial
[12] An approach
that commends itself is that postulated by Salmon LJ in the
English case of
Allen v Sir Alfred McAlpine & Sons Limited
;
Bostic v Bermondsey & Southwark Group Hospital Management
Committee. Sternberg & another v Hammond & another
[1968]
1 All ER 543
(CA), where the following was stated at 561e-h:
‘
[A]
defendant may apply to have an action dismissed for want of
prosecution either
(a)
because of the plaintiff's failure to comply with the Rules of the
Supreme Court or
(b)
under the Court's inherent jurisdiction. In my view it matters not
whether the application comes under limb
(a)
or
(b)
,
the same principles apply. They are as follows: In order for such an
application to succeed, the defendant must show:
(i)
that
there has been inordinate delay. It would be highly undesirable and
indeed impossible to attempt to lay down a tariff - so
many years or
more on one side of the line and a lesser period on the other. What
is or is not inordinate delay must depend on
the facts of each
particular case. These vary infinitely from case to case, but it
should not be too difficult to recognise inordinate
delay when
it occurs.
(ii) that this inordinate
delay is inexcusable. As a rule, until a credible excuse is made out,
the natural inference would
be that it is inexcusable.
(iii) that the defendants are
likely to be seriously prejudiced by the delay. This may be prejudice
at the trial of issues between
themselves and the plaintiff, or
between each other, or between themselves and the third parties. In
addition to any inference
that may properly be drawn from the
delay itself; prejudice can sometimes be directly proved. As a rule,
the longer the delay,
the greater the likelihood of serious prejudice
at the trial.’
[13] At issue in the
appeal is whether the court below had properly exercised its
discretion to dismiss the appellant’s claim
for want of
prosecution. This in turn depends on the factual question whether the
delay was so unreasonable or inordinate as to
constitute an abuse of
the process of court.
[14] The appellant
has advanced two principal reasons for the delay. First, that he had
problems with the attorneys he had instructed
in the matter, and
second, that he had experienced health problems which prevented him
from properly dealing with the matter. The
appellant has explained
that from the inception of the matter the various attorneys and
counsel that he instructed were unable
to make any progress. In 1992,
one of his attorneys died while another was struck off the roll in
1997. One of the several advocates
instructed on his behalf simply
left without anything being done in the matter, and repeated
inquiries regarding any progress elicited
no satisfactory responses.
The appellant went from one attorneys’ firm to another with no
real progress being made. Eventually
in 2001 the firm of attorneys
instructed by him succeeded in placing the matter on the awaiting
trial roll but this was done prematurely.
Their mandate was
subsequently terminated and another firm was instructed. Due to a
lack of progress this firm’s mandate
was terminated on 11
August 2006 and on the same day a new firm was appointed. The latter
firm of attorneys filed the rule 28 notice
purporting to amend the
particulars of claim but when no further progress was made in the
appellant terminated their mandate and
appointed his current
attorneys.
[15] From about 1998
the appellant claims to have suffered extensive health problems. He
claims that he has cardiac problems and
suffers from hypertension and
in 1998 he suffered a stroke and was diagnosed with Type II Diabetes
Mellitus. In 2000 he underwent
a coronary bi-pass and in 2000
underwent a second operation. He asserts that as a result of his poor
health and repeated admissions
to hospital it was not possible for
him to properly attend to the litigation.
[16] The appellant’s
inactivity especially during the 20 year period from 1981 has not
been adequately explained. Since 27
January 1981, when the notice to
produce certain documents was filed and until 2001, the appellant and
his legal representative
appear to have taken no steps whatever to
prosecute the action. The premature placement of the matter on the
awaiting trial roll
on 27 November 2001 did little to advance the
action and the further five year delay until August 2006 is not
explained. The appellant
fails to explain what steps he personally
took to expedite the matter and what enquiries he made of his
attorneys. It is difficult
to accept that he could not during the
long passage of time have taken steps to insist his legal
representatives to bring the matter
to finality. His alleged health
condition is not properly substantiated, but even if one were to
accept that he suffers from ill
health it is difficult to believe
that he was unable to communicate with and give instructions to his
legal advisers. In any event,
the problems regarding the appellant’s
health only surfaced in 1998 some twenty years after the action was
instituted.
[17] The appellant’s
version is characterised by a profound absence of detail. The court
below rightly observed that the appellant
has not produced a shred of
evidence to substantiate any of the allegations made by him. He
claims not to have had access to the
files that were in his
attorneys’ possession but has failed to explain what attempts
were made to obtain such access. In
my view, nothing the appellant
has said properly explains or excuses his inactivity. The inference
is irresistible that the appellant
had decided for some unexplained
reason not to proceed with the action or to advance it expeditiously
to trial.
[18] That, however,
is not the end of the enquiry. The court is required to consider
whether the delay has occasioned prejudice
to the respondent. The
court must also consider, in this regard, if there was any delay on
the respondent’s part and whether
the respondent has availed
itself of the remedies which it might reasonably have been expected
to do in order to bring the action
expeditiously to trial.
[19] That the
respondent had taken a conscious decision not to actively prosecute
the action is common cause. The respondent has
explained that at the
time of the seizure of the tankers and for some time thereafter the
conventional thinking had been that any
breach of regulation
410.04.04(
a
)
promulgated under the Customs and Excise Act 91 of 1964 automatically
constituted a contravention of the Act, and could lead to
a seizure
of the vehicles used in such contravention. The regulation provided,
inter alia, that any seller of fuel under rebate
had to obtain a
declaration from his purchasers that they would use the rebated fuel
in accordance with the regulations. This approach
to matters of this
nature was altered by the judgment of this court in the case of
BP
Southern Africa (Pty) Ltd v Secretary for Customs and Excise &
another
1985 (1) SA 725
(A) where it was held
that a failure to obtain such a declaration did not automatically
disentitle the seller (or the purchaser,
as the case may be) to the
rebate. It was only if the fuel was in fact not used for the purposes
of the regulations that a rebate
could not be claimed. The effect of
the judgment in
BP Southern Africa
supra was that the respondent could no longer rely
solely on the failure to obtain the declaration as a cause for the
seizure of
the tankers, but would have to go further and establish
that the persons to whom the appellant supplied diesel were not
entitled
to the rebate. The main question which will arise in the
action, should it be allowed to proceed, is whether the appellant
sold
diesel under rebate to persons who were not entitled thereto.
This will entail an examination of approximately 180 transactions
and
would require the respondent to interview and take statements from
the many unidentified persons to whom the appellant sold
diesel. In
view of these evidential difficulties, a decision was taken by the
respondent in 1985 ‘not to force the pace of
the action’.
[20] To permit the
appellant an opportunity to revive the action, whether in an amended
form or otherwise, would in my view be extremely
prejudicial to the
respondent. A number of officials who were tasked with investigating
the matter are now deceased or cannot recall
the events in question.
The relevant invoices which are necessary for the purpose of
preparing for trial have been mislaid, and
to complicate matters
further, the seized tankers are no longer available for inspection.
Counsel for the appellant also conceded
that the proposed amended
claim is ill conceived and that a new notice of amendment will have
to be prepared.
[21] It was further
argued on behalf of the appellant that any prejudice to the
respondent was of its own making and a consequence
of its decision
not to force the pace of the action. I do not agree. Although the
respondent’s conduct is a factor that must
be taken into
account, its conduct cannot be viewed in isolation from the
appellant’s failure to expeditiously prosecute
the action. In
this regard the following remarks of Diplock LJ in his separate
judgment in
Allens
supra (at 556g) are apposite:
‘
Since
the power to dismiss an action for want of prosecution is only
exercisable on the application of the defendant his previous conduct
in the action is always relevant. So far as he himself has been
responsible for any unnecessary delay, he obviously cannot rely
on
it.
Moreover,
if after the plaintiff has been guilty of unreasonable delay the
defendant so conducts himself as to induce the plaintiff
to incur
further costs in the reasonable belief that the defendant intends to
exercise his right to proceed to trial notwithstanding
the
plaintiff’s delay, he cannot obtain dismissal of the action
unless the plaintiff has thereafter been guilty of further
unreasonable delay. For the reasons already mentioned, however, mere
non-activity on the part of the defendant where no procedural
step on
his part is called for by the rules of court is not to be regarded as
conduct capable of inducing the plaintiff reasonably
to believe that
the defendant intends to exercise his right to proceed to trial. It
must be remembered, however, that the evils
of delay are cumulative,
and even where there is active conduct by the defendant which would
debar him from obtaining dismissal
of the action for excessive delay
by the plaintiff anterior to that conduct, the anterior delay will
not be irrelevant if the plaintiff
is subsequently guilty of further
unreasonable delay. The question will then be whether as a result of
the whole of the unnecessary
delay on the part of the plaintiff since
the issue of the writ, there is a substantial risk that a fair trial
of the issues in
the litigation will not be possible.’
[22]
Applying the approach postulated by Diplock LJ to the facts of the
instant case, the conclusion must inevitably be reached
that it is
the appellant’s failure to expeditiously prosecute the action
that is the primary cause of the respondent’s
prejudice.
Should
the appellant be given leave to reinstate the action there is a
substantial risk that a fair trial of the issues will not
be
possible.
[23] The appellant
has failed to demonstrate that the discretion exercised by the court
below – which is a discretion ‘in
a strict sense’
was not judicially exercised or was based upon a wrong principle of
law or wrong facts. (See
Kini Bay Village
Association v Nelson Mandela Metropolitan Municipality & others
[2008] ZASCA 66
;
2009 (2) SA 166
(SCA) para 11 and cases there
cited.) I am therefore satisfied that the court below correctly
exercised its inherent power to dismiss
the appellant’s action
and that it also correctly dismissed the rule 30 application.
Consequently the appeal cannot succeed.
Though the respondent asked
for the costs of two counsel, I do not believe that such order is
justified.
[24] The following
order is therefore made:
The appeal is
dismissed with costs.
__________________________
P BORUCHOWITZ
ACTING JUDGE OF
APPEAL
Appearances:
For Appellant: J A
Julyan SC
Instructed by:
Gounder &
Associates, Durban
Claude Reid
Incorporated, Bloemfontein
For Respondent: C J
Pammenter SC (with him M Ngqanda)
Instructed by:
The State Attorney,
Durban
The State Attorney,
Bloemfontein