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[2023] ZAFSHC 47
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Lesela v Terblanche (3394/2022) [2023] ZAFSHC 47 (10 February 2023)
FLYNOTES:
DELAY
IN PROSECUTING ACTION
CIVIL
PROCEDURE – Action – Delay in prosecuting – Six
years after summons – Motor collision claim
relying on
vicarious liability – Driver’s whereabouts unknown –
Defendant would be seriously prejudiced
– Plaintiff failing
to properly explain delay – Delay amounting to an abuse of
process – Action dismissed.
IN
THE HIGH COURT OF SOUTH AFRICA
,
FREE
STATE DIVISION
,
BLOEMFONTEIN
Case
number: 3394/2022
Reportable:
YES/NO
Of
Interest to other Judges:
Circulate
to Magistrates: YES/NO
In
the matter between:
MATHE
MACARTHUR
LESELA
Applicant
And
DEIDRE
TERBLANCHE
Respondent
HEARD
ON:
15
SEPTEMBER 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 16h30 on 10 February 2023
[1]
The applicant ("defendant")
seeks an order for the dismissal of the action instituted against him
by the respondent ("plaintiff'')
in the magistrate's court on
the basis of an inordinate delay by the plaintiff in prosecuting the
matter.
[2]
The following issues are generally
of common cause: the action arises from an accident which took place
on 27 January 2012.
In the particulars of claim the plaintiff claims
payment of the amount of R78 308.32 as damages she sustained when the
defendant's
vehicle there and then driven by the defendant's employee
acting
within
the course and scope of his employment with the defendant collided
with her vehicle. Two years after the accident, on 12
September 2014
the plaintiff issued summons against the defendant and his employee
as a co-defendant. The summons was served a
year later on 9 January
2015 by way of affixing a copy thereof to the principal door of the
defendant's residence. The action was
undefended.
[3]
The action went cold until approximately
six years later in August 2021 when the plaintiff delivered an
application for the amendment
of the particulars of claim. The
defendant responded by objecting to the proposed amendment. The
amendment application was not
proceeded with then on 6 July 2022 the
defendant was served with a Notice of Bar. This step prompted the
defendant to invoke the
provisions of Rule 60A of the Magistrates'
Court Rules of Court objecting to the regularity of the procedures
adopted by the plaintiff.
No further steps were taken by the
plaintiff since then
[4]
It is the defendant's case there has been an inordinate and
unreasonable delay in
the prosecution of the action. There is nothing
that the defendant could have done to expedite the finalisation of
the matter as
he was not even aware of the pending action against him
until he was served with the amendment application. There has been a
further
delay since the sought amendment in that, after the defendant
delivered the notice to oppose the amendment on 17 August 2021 the
plaintiff still did nothing to advance the matter but merely filed a
notice of bar a year later on 6 July 2022 without the amendment
application being finalized.
[5]
The defendant submits that he would be
severely prejudiced in the conduct of his defence if the action is
not dismissed because
he is not privy to the details
of the accident
as he was not the driver
of his motor vehicle
when
the
alleged accident occurred. The driver is no longer in his employ and
due to the considerate lapse of time, the driver cannot
be traced
.
[6]
The application is opposed. In the heads
of argument, the plaintiff raises a point
in
limine
objecting to this court's
jurisdiction to entertain this action or interfere with the
proceedings pending in the magistrate's court.
In the answering
affidavit the plaintiff's legal representative avers that the
defendant is not entitled to the order he seeks
because the
superannuation procedure has been scrapped, the defendant is
responsible for the delay by failing to plead to the summons
and to
settle the claim and, the defendant has failed to set out the reasons
why he did not take further steps to bring this matter
to finality
instead of bringing this application.
[7]
With
regard to the plaintiff's defence
in
limine,
the
applicant's case must appear in her answering affidavit, heads of
argument are purely submissions made in favour or against
the relief
sought they do not constitute evidence. That aside, the court has an
inherent jurisdiction to control court proceedings
to prevent an
abuse of court process including to dismiss an action for want of
prosecution if it is satisfied that: there has
been an inexcusable
delay in the prosecution of the action and that the defendant has
been seriously prejudiced thereby.
[1]
[8]
On the facts germane to this matter, the fact that cumulatively,
there has been delay
of over six years between the date of the
institution of the action and these proceedings is indisputable.
A
delay in prosecuting an action is inexcusable and constitutes an
abuse of process warranting a dismissal of the action unless,
the
plaintiff set outs a credible explanation for the delay
.
[2]
[9]
The
plaintiff's
contention
that
the
defendant
is
responsible
for
the
delay
by
failing to plead or settle the action is
sound. Pursuant to the service of the summons the defendant did not
defend the action.
In terms of rule 12 (1) (a) a plaintiff is
entitled to apply for a default judgment where a defendant has failed
to deliver a notice
of intention to defend the action. There is no
Rule which provides for action by the defendant who has not defended
an action.
[10]
The plaintiff has not even made an attempt to provide an explanation
for the delay in prosecuting
the action. Absent a credible excuse,
the ineluctable inference is that the delay in prosecuting the action
is merely a deliberate
abuse of court process and of the defendant's
constitutional right to have his trial begin and conclude without
unreasonable delay.
[3]
[11]
It is accepted that the defendant is sued on the basis of vicarious
liability. The delay is extreme
and due to the dormancy of the
action, the defendant would be seriously prejudiced in the conduct of
his defence if the stale action
is allowed to continue as his driver
whose evidence is essential in the context of this matter is no
longer in his employ and his
whereabouts are unknown.
[12]
The prospects of success do not favour the plaintiff and this is
based on the plaintiff's failed
attempt to amend the particulars of
claim.
[13]
I am persuaded that the delay in expediting the action to trial is
extreme. The plaintiff has
failed to explain fully and reasonably the
delay in order to enable the court to interrogate the responsibility
and the reasons
of her ineptitude. I have consequently arrived at the
conclusion that the application ought to succeed. There is no reason
why
the costs should not follow the result.
[14]
In the circumstances, I grant the following order:
1
.
The action instituted
against the applicant
in the magistrate's
court under case number 23811/14 is
dismissed with
.
costs.
APPEARANCES:
Counsel
on behalf of the applicant:
Mr
NW Phalatsi
Instructed
by
:
NW
PHALATSI & PARTNERS
BLOEMFONTEIN
Counsel
on behalf of the respondent:
Adv
GC Steenkamp
Instructed
by:
HONEY
ATTORNEYS
BLOEMFONTEIN
[1]
Section 173 of the Constitution of the Republic of South Africa Act
No, 108 of 1996;
Sanford
v Haley NO
2004
(3) SA 296
(CRD)
at paras [8] to [9];
Cassimjee
v Minister of Finance
2014
(3) SA 198
(SCA).
[2]
Gopaul
v Subbamah
2002
(6) SA 551
(DJ.
[3]
S35 supra at fn1.