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[2023] ZAFSHC 370
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Member of the Executive Council of the Department of Human Settlements, Free State Province v Cem Brink CC and Others (4973/2013) [2023] ZAFSHC 370 (2 October 2023)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Reportable:
yes/no
Circulate
to other Judges: yes/no
Circulate
to Magistrates: yes/no
Case
Number 4973/2013
In
the matter of:
THE
MEMBER OF THE EXECUTIVE COUNCIL OF
THE
DEPARTMENT OF HUMAN SETTLEMENTS,
FREE
STATE PROVINCE
Applicant
and
CEM
BRICK CC
1
st
Respondent
BUNKER
HILLS INVESTMENTS 115 (PTY) LTD
2
nd
Respondent
MOELETSI
TRADING CC
3
rd
Respondent
BOKANG
Q TRADING CC
4
th
Respondent
PEOPLE
FIRST INVESTMENTS CC
5
th
Respondent
REHAUWE
CONSTRUCTION &
DEVELOPMENT
CC
6
th
Respondent
KAELO
CONSTRUCTION & PROJECTS CC
7
th
Respondent
SEDITI
CONSTRUCTION SERVICES CC
8
th
Respondent
ZIQOQE
CONSTRUCTION CC
9
th
Respondent
CORAM:
BERRY, AJ
HEARD
ON:
04 MAY 2023
DELIVERED
ON:
02
OCTOBER 2023
JUDGMENT
BY:
BERRY, AJ
JUDGMENT
INTRODUCTION
[1]
I refer to the parties as they are cited in this Application and not
as
they are cited in the main action proceedings.
[2]
The Applicant instituted action against the 1
st
to 9
th
Respondent on 2 December 2013.
[3]
The claim against the 1
st
Respondent is for payment in the
sum of R56,643,232.51 together with interest and costs.
[4]
Orders are sought against the Respondents for delivery and debatement
of accounts.
[5]
The 1
st
and 9
th
Respondents defend the action.
[6]
The Applicant pursued the action by requiring the 9
th
Defendant in the action to deliver its Plea and by applying for
default judgment against those Defendants who did not defend the
matter.
[7]
The legal representatives of the 1
st
Respondent were
informed by e-mail that the Application for Default Judgment would
proceed on 1 October 2015, but that judgment
would not be sought
against the 1
st
Respondent.
[8]
Default judgment was granted against the 3
rd
, 5
th
,
6
th
, and 7
th
Respondents on 1 October 2015.
[9]
The Applicant brought an Application to Self-Review and set aside the
contracts and various decisions taken by its officials on 21 December
2016 under case number 241/2016.
[10]
The Action under case number 4973/2013 was placed on hold, pending
the outcome of the Review
Application.
[11]
The Court granted an order against certain Respondents in the
Self-Review Application on
26 August 2019, setting aside the various
agreements and decisions.
[12]
The Self-Review Application in relation to the 1
st
Respondent was postponed to 2 December 2019.
[13]
A further Order setting aside the agreement between the Applicant and
the 1
st
Respondent, (65
th
Respondent in the
Self-Review Application under case number 241/2016) was granted on 2
December 2019.
[14]
The order of 2 December 2019 was erroneously granted in respect of
the 1
st
Respondent as there was an agreement between the
legal representatives of the Applicant and the 1
st
Respondent, to postpone the matter further for opposition.
[15]
The legal representative for the 1
st
! Respondent directed
a letter to the Applicant's legal representative confirming that in
their view, the Order dated 2 December
2019 in respect of the 1
st
Respondent had to be rescinded.
[16]
The Applicant served a Notice of its intention to amend its
Particulars of Claim on 5 October
2022.
[17]
The 1st Respondent delivered a Notice of Objection in terms of Rule
28(3) to the intended
amendment of the Applicant’s Particulars
of Claim, on 4 November 2022.
[18]
The Applicant served an Application for Leave to Amend its
Particulars of Claim on 17 November
2022.
[19]
This Application was met with an Answering Affidavit in opposition to
the intended amendment,
and a Counter Application by the 1
st
Respondent for the action instituted under Case Number 4973/2013, to
be struck down for lack of prosecution.
[20]
The Applicant opposes the Counter Application.
[21]
These two Applications served before Court on 04 May 2023.
[22]
As often happens in matters that take years to resolve, the
Application to Review the Order
erroneously granted against the 1
st
Respondent on 02 December 2019 under Case Number 241/2016, served
before another Court by the time these Applications were heard.
[23]
The Honourable Justice Van Zyl granted an Order setting aside the
Order against the 1
st
Respondent, which was erroneously
granted on 02 December 2019, on 28 April 2023.
[24]
Thus, on the date of hearing this Application, the Applicant
abandoned its Application
for Leave to Amend its Particulars of Claim
and tendered costs for the Application.
[25]
This leaves the Counter Application and its costs to be determined.
THE
COUNTER APPLICATION FOR THE CASE TO BE STRUCK DOWN
[26]
The Counter Application to strike down the claim is based on the
following grounds:
(a) The Applicant
failed to take any further step in the prosecution of the action
proceedings relevant to the 1
st
Respondent for more than
eight years.
(b) The Applicant,
as
dominus litus
, failed to take the necessary steps to ensure
close of pleadings in the action proceedings.
(c) The Applicant
attempts to breathe life into the action proceedings by trying to
amend its Particulars of Claim in circumstances
where the proposed
amendment would introduce a new cause of action, which has
prescribed.
(d) The Applicant’s
failure to prosecute the action proceedings are causing prejudice to
the 1
st
Respondent in that the delay is so inordinate and
in excusable to the extent that it constitutes an abuse of process.
Consequently,
the action proceedings stand to be dismissed for want
of prosecution.
(e) More than ten
years have lapsed at the time of hearing the Application, without the
1
st
Respondent filing its Plea.
[27]
In
Cassimjee
v Minister of Finance
[1]
the Supreme Court of Appeal held that an inordinate or unreasonable
delay in prosecuting an action may constitute an abuse of process
and
warrant the dismissal of the action.
[28]
The Court
held that this power stems from the Court’s inherent
jurisdiction to control its proceedings to prevent abuse of
process,
particularly in the form of vexatious or frivolous litigation
[2]
.
[29]
The
exercise of this power is discretionary and ought to be exercised
when there is an inexcusable delay in the prosecution of the
action,
which seriously prejudices the defendant
[3]
.
[30]
The enquiry involves a careful examination of all the relevant
circumstances, including,
the period of the delay, the reasons
therefor and the prejudice caused to the Defendant.
THE
APPLICANT’S OPPOSITION TO THE COUNTER APPLICATION
[31]
The Applicant contents that there is no merit to the Counter
Application and that it stands
to be dismissed with costs for the
following reasons:
(a) The relief
sought unjustifiably infringes on the Applicant's Constitutional and
Common Law rights to have the dispute
fairly adjudicated in a Court
of Law.
(b) The relief
sought is a drastic and extraordinary remedy which should be
exercised sparingly and in exceptional cases and
only when there has
been a clear abuse of the process of Court.
(c) The test is
stringent, and dismissal should not easily be granted.
[32]
The Applicant submits that on proper examination of all the relevant
facts and circumstances
that this is not a case in which dismissal of
the action would be appropriate or warranted, because:
(a) The Applicant
gives detailed and justifiable reasons to fully explain all periods
of ostensible delay.
(b) The Applicant
never abandoned the action.
(c) The action is
not frivolous or vexatious.
(d) The action
involves substantial amounts of public funds and public interest.
(e) The 1
st
Respondent relies on vague and unsubstantiated allegations of
prejudice, without any detail or supporting evidence.
(f) Any
evidentiary challenges which may be faced by the 1
st
Respondent in the action are neither conclusive nor sufficient to
justify the drastic relief sought and will be a factor that may
be
taken into consideration by the Trial Court.
(g) The 1
st
Respondent did not take any remedies available to it to bring the
action to trial.
[33]
The Applicant provides a detailed chronology of events dating back to
02 December 2013
stretching to 15 February 2023, which I do not
repeat.
[34]
There is no
Rule of Court, practice or Common Law that results in a summons
automatically becoming invalid should the Applicant
not proceed to
seek judgment thereon within the time which this is usually done
[4]
.
[35]
Under the
Common Law, Courts are open to all, and it is only in very
exceptional circumstances that the doors of Court will be closed
on a
party who desires to prosecute an action
[5]
.
[36]
This right has since been enshrined in our Constitution which
expressly grants a litigant
the right to have any dispute adjudicated
before a Court of law or any other appropriate forum.
[37]
Sec 34 of our Constitution provides:
“
Everyone has the
right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before
a Court or, where
appropriate, another independent and impartial tribunal or forum.”
[38]
A litigant’s right in terms of Sect 34 of the Constitution can
only be limited in
terms in terms of Sec 36 by a law of general
application to the extent that the limitation is reasonable and
justifiable in an
open and democratic society based on human dignity,
equality, and freedom.
[39]
Sec 173 of
the Constitution provides that the High Court has the inherent power
to protect and regulate its own process and to develop
the common
law, considering the interest of justice. As such it has the power to
dismiss a summons or an action on account of the
delay or want of
prosecution
[6]
.
[40]
The power
of a Court to strike down claim is an extraordinary remedy, which
should be exercised sparingly and in exceptional cases;
and only when
there has been a clear abuse of the process of Court
[7]
.
[41]
The test is
stringent, and dismissal should not be granted easily. It will depend
on the facts and circumstances of each case and
based on fairness to
both parties
[8]
.
THE
APPLICANT’S SUBMISSIONS ON COSTS
[42]
The Applicant tendered costs for the abandoned Application for Leave
to Amend its Particulars
of Claim.
[43]
The Applicant did not make any substantive submissions on costs of
the Counter Application,
other than that costs should be paid by the
1
st
Respondent on the basis that the Counter Application
should be dismissed.
[44]
The Applicant submitted that the costs should include the costs of
two counsel.
THE
1
ST
RESPONDENT’S SUBMISSIONS ON COSTS
[45]
The 1
st
Respondent submits that punitive cost Orders should be made for both
the Application for Leave to Amend and the Application to
strike the
claim in the light of the Applicant’s unambiguous concession
that the amendment was premised on an improperly
obtained Order and
that the Application to amend was hopeless
[9]
.
[46]
Counsel did not make any substantive submission on why costs at a
punitive scale for the
Application to strike the claim should be
awarded.
CONCLUSION
[47]
As the Applicant withdrew its Application to amend its Particulars of
Claim and tendered
costs.
[48]
Our Courts does not order a litigant to pay the costs of another
litigant on an attorney
and client scale, unless some special grounds
are present, such as dishonesty or fraud or the motives were
vexatious, reckless,
or malicious, or that the party has acted
unreasonably in the conduct of the litigation, or that its conduct
was in some way reprehensible.
[49]
The Counter Application seeks to dismiss a claim for Millions from a
public entity, without
the matter being properly ventilated at trial.
[50]
The 1
st
Respondent has provided the Applicant with
documents which consists of some 20 000 pages.
[51]
The 1
st
Respondent has not pleaded to the claim at the
time this matter was heard.
[52]
The 1
st
Respondent has not taken any steps to pursue the
matter. I am not suggesting that it is for the 1
st
Respondent to pursue the Applicant’s claim, but I consider this
to be a relevant aspect.
[53]
The
Constitutional Court held in
Mineral
Sands Resources (Pty) Ltd and Others v Reddell and Others
[10]
:
“
There are cases
where there is gross abuse by the procedure employed by a litigant to
the extent that the court, as a rare instance,
will dismiss the
claim, without any regard to the merits”.
[54]
The Court
held in
Molala
v Minister of Law and Order and Another
[11]
that in an Application for an order dismissing an action on the
ground of abuse of process in that there has been an unreasonable
delay in proceeding with the action, the approach the Court must
apply is not simply an enquiry into the delay.
[55]
It should be assessed whether a facility which is available to a
party was used, not as
an aid to the airing of disputes and in that
sense moving towards the administration of justice, but knowingly
used in such a manner
that the exercise of that right would cause
injustice.
[56]
The issue is whether there is behaviour which oversteps the threshold
of legitimacy. In
the premises the Applicant cannot be barred simply
because the 1
st
Respondent was/is prejudiced.
[57]
The increasingly difficult position of the 1
st
Respondent
is a factor which may or may not assist in justifying an inference
that the Applicant’s intentions were directed
at causing or
increasing such difficulties.
[58]
The loss or non-availability of relevant documents and/or one or more
witnesses due to
delay in prosecution is not decisive at this stage
as it constitutes speculation of what may happen or may not happen at
trial.
[59]
The trial
Court will be in a much better position to assess all relevant
factors, including any potential prejudice to the 1
st
Respondent
[12]
.
[60]
I do not find that the delay in prosecuting this case constitute a
gross abuse of procedure.
[61]
It will not be in the interest of justice to infringe on the
Applicant’s Constitutional
Right to have its matter properly
adjudicated in Court as such an Order should be granted in rare
instances.
[62]
The Counter Application was not necessarily ill conceived in view of
the long delay in
this matter. Therefore, I do not consider it
appropriate to make an Order of costs against the 1
st
Respondent at this stage.
ORDER
1. The
Applicant is ordered to pay the costs of the 1
st
Respondent for the Application to amend its Particulars of Claim,
which costs shall include the costs of two counsel.
2. The
Counter Application is dismissed.
3. The
costs of the Counter Application and its opposition are to be costs
in the cause.
AP
BERRY, AJ
APPEARANCES:
For
the Applicant:
Adv.
N Snellenburg SC
with
Adv. SMC Johnson
Instructed
by:
Phatshoane
Henney Attorneys
BLOEMFONTEIN
For
the Defendant:
Adv.
S Grobler SC
with
Adv. S Tsangarakis
Instructed
by:
HENDRE
CONRADIE INC
(Rossouws
Attorneys)
BLOEMFONTEIN
[1]
Cassimjee
v Minister of Finance
2014 (3) SA 98 (SCA).
[2]
Ibid at para 10.
[3]
Ibid at para 11.
[4]
Rigby
Engineering v Rockboring & Drilling (Pty) Ltd
1981 (1) SA 328
(0);
Morgan-Smith
v Elektro Vroomen (Pty) Ltd en 'n Ander NO
1977 (2) SA 191
(O) at 194.
[5]
Western
Assurance Co v Caldwell's Trustee
1918 AD 262
at 273.
[6]
Cassimjee
v Minister of Finance
2014 (3) SA 198
(SCA).
[7]
Kuiper
and Others v Benson
1984
(1) SA 474 (W).
[8]
Sanford
v Haley NO
2004 (3) SA 296
(C) at [9].
[9]
Public
Protector v South African Reserve Bank
2019 (6) SA 253 (CC).
[10]
Mineral
Sands Resources (Pty) Ltd and Others v Reddell and Others
-
2023 (2) SA 68
(CC) at Par [52].
[11]
Molala
v Minister of Law and Order and Another
1993 (1) SA 673
(W) at 667C-D.
[12]
Kuiper
and Others v Benson
1984 (1) SA 474
(W) at 475F and 477D.