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[2020] ZAGPPHC 42
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Killarney Country Club v Morris (57671/2010) [2020] ZAGPPHC 42 (14 February 2020)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
Case
No: 57671/2010
14/2/2020
In the matter
between:
KILLARNEY
COUNTRY CLUB
APPLICANT
and
MORRIS F.S
RESPONDENT
In re:
MORRIS F.S
PLAINTIFF
And
KILLARNEY
COUNTRY CLUB
DEFENDANT
JUDGMENT
KUBUSHI
J,
[1]
The applicant seeks an order to dismiss
the respondent's action against it (the applicant) for want of
prosecution. The action in
question pertains to a claim for damages
in respect of bodily injuries suffered by the respondent when he was
assaulted on 18 October
2007 by Mr Joseph Ndlovu ("Mr Ndlovu"),
a security guard who was in the employ of the applicant at the time.
Mr Ndlovu
is said to have been acting in the course and scope of his
employment with the applicant when he assaulted the respondent.
Hence,
the claim against the applicant is brought on the ground that
it (the applicant) is vicariously liable for the conduct of Mr
Ndlovu.
[2]
On 4 October 2010 the respondent
launched an action against the applicant or an amount of
approximately R3, 8 million together with
interest thereon at the
rate of 15, 5%
per annum.
The
amount claimed is said to be for compensation for the injuries
allegedly suffered by the respondent as a result of the assault.
This
is the action the applicant seeks to dismiss.
[3]
The applicant is defending the action
and has raised a two-pronged defence, namely self-defence and
provocation. The contention
is that when Mr Ndlovu allegedly
assaulted the respondent he was acting in self-defence alternatively
was provoked by the
respondent as a consequence of the respondent's
own conduct, the assault on him, verbal abuse and racial slurs.
[4]
What occasioned the assault and how it
happened is a matter of great dispute between the parties. This,
however, is a matter that
cannot detain this court as the dispute
should be resolved in the action proceedings. What, however, has come
to light, which is
known to all parties, is that Mr Ndlovu passed
away in October 2018.
[5]
The factual matrix on which the
applicant is basing its claim is that, as earlier stated, the action
referred here above was instituted
in October 2010 and more than
eight years later, in October 2019, when this application was heard,
the action had not been finally
prosecuted. The present application
is, thus, premised on the delay in prosecuting the action.
[6]
The applicant avers that as a result of
the delay, it has suffered irreparable trial prejudice which has
primarily been occasioned
by the death of Mr Ndlovu. The applicant
has, consequently, approached court seeking an order dismissing the
action of the respondent
together with costs, such costs to include
the wasted costs occasioned by the postponement of the trial on 19
March 2013, and to
include costs of senior counsel.
[7]
In opposition to the relief sought by
the applicant , the respondent seeks the dismissal of the application
with costs. The respondent
concedes that there has been an inordinate
delay in prosecuting the action but attributes all blame for the
delay to his lack of
funds to pay his attorneys and the dilatory
conducts of his various previous attorneys who failed to heed his
instructions and
take the matter forward to finality. He suggests
that no delay was caused by him personally, and that he did
everything in his
power to proceed to trial. He also belatedly seeks
to blame the applicant for not being proactive in forcing to bring
the action
to finality.
[8]
I am in agreement with the argument by the respondent's counsel in
his heads of argument
that the application is premised on the fact
that the delay in the present matter must be evaluated not as the
foundation forming
part of the right to have the claim dismissed on
account of delay but as an element in determining whether, in all the
circumstances,
the delay inevitably and irremediably taints the
overall substantive fairness of the trial if it were to commence. It
is my view
that at the heart of the dispute is whether the applicant
will, without the
viva voce
evidence of Mr Ndlovu, be afforded
a fair trial.
[9]
This element of fairness of the trial is
what distinguishes the current matter from
Cassimjee,
[1]
a judgment of the Supreme Court of Appeal that was extensively quoted
by counsel for both parties in support of their respective
arguments.
In
Cassimjee
the
debate centred mainly around whether the inordinate delay of 20 years
justified the dismissal of the action for want of prosecution;
whereas in this matter the delay occasioned serve only as an element
in determining whether, in all the circumstances, the delay
has an
effect on the overall substantive fairness of the trial if it were to
commence.
[10]
The principles enunciated in
Cassimjee
relating to the dismissal of the
matter for want of prosecution, remain apposite. Therefore, before
considering the question of
whether the trial will be fair or not,
the issue of whether the applicant is entitled to the dismissal of
the matter for want of
prosecution ought first to be considered
because it is what the applicant seeks in the ultimate.
[11]
In terms of section 173 of the
Constitution the High Court has the inherent power to protect and
regulate its own process and to
develop the common law, taking into
account the interest of justice. The court's inherent jurisdiction to
control its own proceedings
includes the power to dismiss an action
on account of delay in or want of prosecution.
[2]
[12]
The Supreme Court of Appeal in
Cassimjee
when setting out the
jurisdictional facts required when dismissing an action for want of
prosecution, held that an inordinate or
unreasonable delay in
prosecuting any action may constitute an abuse of court process and
that, in certain narrowly defined circumstances,
may justify
dismissal of the action. In coming to such a decision the court
reasoned as follows:
"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
"
[13] Therefore
the requirements for the dismissal of action for want of prosecution,
as enunciated
in
Cassimjee,
are simply that:
13.1
Firstly, there should be a delay in the
prosecution of the action - the delay must be as unreasonable or
inordinate as to constitute
an abuse of the process of court;
13.2
Secondly, the delay must be inexcusable;
and
13.3
Lastly, the defendant must be seriously
prejudiced thereby.
[14]
In this instance, the question of whether there was an inordinate
delay does not arise as it
has been conceded by the respondent. What
arise as issues for determination by this court is whether such
inordinate delay is inexcusable
and whether the applicant has been
seriously prejudiced thereby. I deal hereunder with the two questions
in turn.
[15] The
chronology of events, which is not denied by the respondent, that
signal the respondent's
inordinate delay, is succinctly summarised in
the applicant's heads of arguments as follows: the incident giving
rise to the respondent's
action took place on 18 October 2007.
Summons was only issued nearly three years later on 4 October 2010, a
few days before the
claim would prescribe. The matter was set sown
for trial on 19 March 2013 but the respondent was not aware of the
scheduled trial
and did not prepare for it. The trial was, as a
result, postponed at his cost. The second trial date in this matter
is 19 February
2020, seven years after the first trial date.
[16]
The next development in the matter took
place three years after the postponement of the first trial date when
De Meyer De Vries
Attorneys were substituted as attorneys of record
of the respondent in May 2016. The total of their action related to
serving discovery
notices in May 2016 and asking for a copy of the
applicant's plea in January 2017. Another sixteen months passed
before De Broglio
Attorneys took over the matter ln April 2018.
Between April 2018 and July 2018, De Broglio Attorneys took active
steps in relation
to trial preparation on behalf of the respondent.
In October 2018 Mr Ndlovu died.
[17]
The applicant's case is that until April
2018, when attorneys De Broglio took over the case, the respondent
was culpably supine
in bringing his action to trial. The contention
is that the respondent's belated effort to bring the matter to trial
is too late
and the delay is thus inexcusable . It thus appears that
the only period where there was actually a delay, which period the
applicant
ls complaining about, is between October 2010 and April
2018.
[18]
In his explanation why the inordinate
delay should be excused, the respondent has advanced three principal
reasons that contributed
to the delay. First, that the injuries he
suffered and the resultant
sequelae
thereof contributed to the loss of
his job and accordingly his income; second, that he was left
impecunious because he had no job
and had to depend on the attorneys
to act for him on a contingency basis and had to borrow money to
obtain the medico-legal reports
required to institute the action;
lastly, the neglect of his attorneys who failed to take the matter
forward even when instructed
to do so.
[19]
The respondent avers in his answering
affidavit that he personally did everything in his power to bring the
matter to trial. In
support of this contention, he has chronicled
details of and furnished a paper trail of multiple enquiries made to
his attorneys
over the period June 2013 to March 2017. The applicant
accepts that all the enquiries were made by the respondent to his
attorneys.
I shall, as a result, not go into each of the said
enquiries in detail.
[20]
However, the applicant's argument is
that the matter could only be moved forward by external outward or
objective manifestations
by the respondent's attorneys. Consequently,
inasmuch as the respondent enquired about progress of his case, and
inasmuch as the
respondent intended to progress his case, absent
communication between his attorneys and the applicant's attorneys or
taking steps
in the litigation, the matter was not moved forward.
[21]
In this regard, the applicant relied for
support for this argument in the judgement of the Supreme Court of
Appeal in
Mothupi
[3]
where in the context of waiver the
court held that intention to waive like intention generally is to be
adjudged by its outward
manifestations, and mental reservations not
communicated, are of no legal consequence; and that outward
manifestations of intention
are adjudged from the perspective of the
other party concerned.
[22]
The contention, therefore, by the
applicant is that the respondent's attorneys gave no outward
manifestation of the respondent's
intentions and desires relating to
the conduct of the litigation. As such, so it is argued, the
respondent conducted his case through
his attorneys. They were his
agents. The respondent must therefore accept responsibility, as
principal, for what his legal representatives
did or did not do. The
respondent's attorneys' failures must be attributed to him and bind
him. Their lack of diligence is his
lack of diligence and offers no
valid excuse.
[23]
I am however of the view that this
current case is not one of those where the respondent must be held
liable for the consequences
of his attorneys' ineptitude, remissness
and lack of diligence. It is apparent from the explanation and
reasons furnished by the
respondent in his answering affidavit that
what mainly constituted the attorney's ineptitude, remissness and
lack of diligence
was mainly because of his impecuniousness.
[24]
The various attorneys had to act on a
contingency basis because the respondent was unable to pay their fees
due to not being employed.
It is also evident that the respondent did
not lie supine and did nothing as the applicant wants to suggest.
Firstly, it should
be accepted that the respondent is a lay person
when it comes to matters of law. He had to depend on the advice of
his attorneys
and accept whatever it is they told him. From what he
was told by the attorneys it could not have been easy for him to
fathom that
his matter was not being attended to. He actually went
from one attorneys' firm to another with no real progress being made.
[25]
Secondly, the respondent explains in his
answering affidavit that from inception of the matter the various
attorneys he instructed
were unable to make any progress. He had to
terminate the mandate of the first attorneys he instructed, Bagraims
Attorneys, when
he found out that they specialised in labour law. He
then consulted with Mr Boshoff of Cornelius Boshoff Attorneys who
accepted
to represent him on a contingency basis. In order to proceed
with the institution of the claim Mr Boshoff required the medical
records pertaining to the injuries suffered during the assault.
Because of lack of funds he was only able to furnish the said medical
reports within days before the claim could prescribe. Summons was, as
a result, issued on 4 October 2010.
[26]
From 4 October 2010 until 19 October
2015, when Mr Boshoff withdrew as his attorney of record, the
respondent was made to understand
that the matter was on track and
that it was being dealt with. This is evident from the various email
communications filed of record
by the respondent, and accepted by the
applicant. The matter had even been set down for hearing, even though
postponed, on 19 March
2013. There was thus, no way that the
respondent could have suspected that the matter was not being carried
forward.
[27]
New attorneys, De Meyer De Vries
Attorneys, came on board on 30 October 2015 and were substituted as
attorneys of record in May
2016. The respondent signed a contingency
agreement with them. From the time they came on board these attorneys
concerned themselves
with the discovery process and pre-trial
conference but never proceeded to set the matter down for hearing. In
preparation for
trial the attorneys referred the respondent to Dr
Fine for the evaluation of his psychiatric damages. Therefore, from
the time
De Meyer De Vries Attorneys came on board until in March
2018 when the respondent's file was taken over by De Broglio
Attorneys,
the respondent was in constant communication with his
attorneys and had no reason to believe that they were not advancing
his case.
[28]
On 29 April 2018, the respondent
substituted De Broglio Attorneys as attorneys of record. De Broglio
Attorneys sought to advance
the matter, by calling for discovery,
convening a pre-trial conference, and applying for a trial date. A
pre-trial conference was
held, a new trial date allocated and
discovery documents exchanged.
[29] On 22
February 2019, De Broglio Attorneys withdrew as attorneys of record,
as they were no longer
prepared to act on contingency. Hamel
Attorneys were then appointed as attorneys of record for the
respondent. The matter was then
set down for trial on 19 February
2020.
[30]
During the intermittent periods when the
matter made no progress, the respondent is able to show by means of
the various emails
filed of record, and to explain in detail all the
steps he took, together with his brother Marc Morris, to expedite the
matter
and the numerous enquiries he made to the attorneys. This, in
my view, is indicative of the fact that the respondent was not supine
but took the necessary steps in bringing the matter to finality.
Under the circumstances, the delay is, in my view, excusable.
[31]
The approach taken by the court in
applying the three requirements was enunciated in the
Gopaul,
[4]
where the court expressed itself
like this -
''It appears to me that the proper approach
is for the court to weigh up the period of the delay and the reasons
therefor, on the
one hand and the prejudice, if any, caused to the
defendant, on the other. Thus, there may be cases in which the delay
is relatively
slight but serious prejudice has been caused to the
defendant. This will often be so where the plaintiff's cause of
action arises
from assault or
a
motor vehicle collision (to mention
but two examples) where the events giving rise to the claim occurred
in the space of
a
few
seconds and much depends upon the testimony of eye-witnesses, whose
memories may become blurred in the course of time."
[32]
The approach was adopted with approval
in
Cassimjee.
[5]
In that judgment, the court stated
as follows :
"Ultimately the inquiry 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."
[33]
Having found the delay excusable I had
to weigh it against the prejudice the applicant stand to suffer
should the matter proceed
to trial. I found, in my view, that the
prejudice is material and outweighs the excusable delay. This will
become apparent from
the reasons I advance hereunder for such
findings.
[34]
The applicant avers that it has been
seriously and adversely prejudiced by the delay in the prosecution of
the respondent's claim.
The contention is that since this is a
delictual claim based on an alleged assault - involving two
individuals - causing injury
and damages, the evidence of Mr Ndlovu
is critical to prove the applicant's defences of self-defence and
provocation. Mr Ndlovu
is the person implicated in the fracas, and
upon whom the defences of self-defence and provocation rest. The
death of Mr Ndlovu,
as such, precludes the applicant from taking
instructions from him, and most significantly, calling him as a
witness. This, according
to the applicant is highly prejudicial to
its case.
[35] I agree with
the sentiments expressed by the applicant in the heads of argument to
the effect
that in order to illustrate the prejudice that the
applicant will suffer, if trial is to commence without the evidence
of Mr Ndlovu,
it is important to assess the issues on the pleadings
on the basis of the facts that are in dispute.
[36]
In assessing the said issues, the
applicant in its heads of argument outlined the common cause factors
between the parties and the
facts that are in dispute. The issues in
dispute are important for this purpose in the sense that they will
require determination
at the hearing and evidence in respect thereof
must be adduced. The common cause facts outlined by the applicant are
that: the
incident occurred at approximately 5h30 on 18 October 2007,
at the entrance of the applicant's premises; Mr Ndlovu was at the
time
of the incident in the employ of the applicant as a security
guard and that at the time of the incident he was stationed at the
entrance of the applicant's premises; and that Mr Ndlovu struck the
respondent with a wooden implement.
[37]
The applicant further delineated the
issues in dispute in respect of the two defences raised by the
applicant. In regard to the
defence of self-defence the facts at
issue are:
37.1
Whether the respondent and/or his
brother, Mr Marc Morris verbally and physically assaulted Mr Ndlovu;
37.2
Whether, in the course of and as a
consequence of such assault, Mr Ndlovu believed he was in physical
danger and defended himself
against the assault;
37.3
Whether Mr Ndlovu had reasonable grounds
of defending himself as he did and whether he was entitled to do so;
37.4
Whether Mr Ndlovu's conduct in defending
himself was justified in the circumstances;
37.5
Whether the item that Mr Ndlovu struck
the respondent with was a knobkerrie or other wooden implement;
37.6
Whether Mr Ndlovu struck the plaintiff
on the head or elsewhere;
37.7
Whether Mr Ndlovu's striking of the
respondent constituted an unlawful and intentional assault; and
37.8
Whether Mr Ndlovu was acting in the
course and scope of his employment with the applicant.
[38]
Insofar as the applicant's
alternative
defence of provocation is concerned,
in the event that the trial court finds that Mr Ndlovu was acting in
the course and scope of
his employment with the applicant, and in the
event that it is found that Mr Ndlovu assaulted the respondent and
caused him injury,
the contention by the applicant is that the
following issues will also arise, namely
38.1
Whether the assault occurred as a result
of Mr Ndlovu being provoked into such assault; and
38.2
Whether such provocation is to be taken
into account in mitigation of the respondent's damages, as well as
any costs to which he
might be entitled.
[39]
It is quite clear from the above
analysis that the issues in dispute are both factual and legal in
nature. Firstly, in my view,
the factual issues cannot be determined
otherwise than with the
viva voce
evidence of Mr Ndlovu. Secondly, the
failure to determine the factual issues will result in the legal
issues, which would rest upon
such findings, not being decided as
well. The applicant is, thus, correct in contending that the
prejudice is manifest.
[40]
With such glaring manifestation of
prejudice which the applicant stands to endure, the question is
whether it (the applicant) will
be afforded a fair hearing at such
trial. I do not think so.
[41]
The gravamen of the applicant's
complaint is that as a result of the delay, it has suffered
'irreparable trial prejudice' which
has primarily been occasioned by
the death of Mr Ndlovu. In this regard, the applicant relies on the
definition of 'irreparable
trial prejudice' proffered by the
Constitutional Court in the context of criminal trials. In that
judgment, the court defined 'irreparable
trial prejudice ' as the
prejudice suffered by an accused mainly because of witnesses becoming
unavailable and memories fading
as a result of delay, in consequences
whereof such accused may be prejudiced in the conduct of her or his
trial.
[6]
[42]
'Irreparable trial prejudice' in the
context of the current matter is said to be occasioned by the death
of Mr Ndlovu as his
viva voce
evidence will not be available.
[43]
The Constitutional Court in
Bothma
[7]
when dealing with the concept of
alleged 'irreparable trial prejudice' remarked as follows:
"[68] Irreparable
prejudice must refer to something more than the disadvantage caused
by the
loss
of
evidence that can happen in any trial. Thus, irretrievable
loss
of
some
evidence, even if associated with
delay,
is
not
determinative of irreparable trial prejudice. irreparability should
not be equated with irretrievability. Clearly, potential
witnesses
who have died cannot be revived. Documents that have gone permanently
astray
may
not
be capable of recreation . irreparability in this context must
therefore relate
to
insurmountable
damage caused not to the
source of
testimony
as
such, but to the fairness and
integrity of
a
possible
trial. Put another way, to
say
that
the trial has been irreparably prejudiced
is
to accept that there
is
no way in which the fairness of the
trial could be sustained.
"
[44]
Section 34 of the Constitution provides that-
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."
[45]
The Constitutional Court in its judgment in
Chief
Lesapo,
[8]
recognised at least two aspects to
this right. The first right is that of 'the right of access to
court', that is, the right to
have one's case determined by a court
or other independent and impartial tribunal. The second component of
the section guarantees
a right of fair hearing. The second aspect of
the section is what is involved in this instance, hence the question
whether the
applicant will be afforded a fair hearing should the
action commence without the evidence of Mr Ndlovu.
[46]
Section 35 (3) of the Constitution also
recognises that a litigant (the section refers to an accused) should
be afforded the right
to adduce and challenge evidence. Further to
that, the esteemed author Erasmus,
[9]
opines as follows:
"In civil proceedings a trial is the
judicial investigation of the claim and defence of litigants
as
disclosed in the summons and plea;
and for that purpose, the hearing of such evidence as may be brought
forward by the parties;
after which the parties
or
their legal representatives (if they
so
desire)
are heard in argument, and the judgment of the court is given
"
[47]
It is trite that all testimony of
witnesses at the trial must be given orally. It follows, therefore,
that even in this instance
the evidence of the litigants must be
given orally. One of the rights of a fair trial, therefore, is the
ability of a litigant
to call witnesses to give oral evidence.
[48] The authors
OT Zefferet
and
AP Paizes,
[10]
in the chapter discussing 'The Rules of Trial' set out the order in
which evidence is tendered in court. According to the authors
"The chapter is principally concerned
with the mechanics of presenting evidence to the court. It deals with
the circumstances
in which the court may receive evidence given
before the trial, the rule governing the order in which patties
present their evidence,
the swearing or affirmation, examination in
chief, cross-examination, re-examination and impeachment of credit of
witnesses
"
[49] In essence
this is all what the applicant ought to do when it presents its
defence to the court.
It must proffer evidence in chief,
cross-examine the witnesses of its opponent and re-examine any of its
own witnesses. From the
aforesaid, it is, thus, apparent that the
challenges of the applicant will be insurmountable without the
assistance of Mr Ndlovu
as a witness.
[50] It is common
cause that the versions of the parties as they arise from the
pleadings are mutually
contradictory. Mr Ndlovu is the applicant's
single critical witness, from whom to take instructions to controvert
the respondent's
version, to call as a witness and give evidence on
behalf of the applicant.
[51]
Of cardinal importance is that the
defences raised by the applicant places the burden of proof on the
applicant. Surely, the applicant
cannot be expected to discharge the
onus
in
the absence of his only witness who would give evidence that would
have the effect of discharging that
onus.
Failure of the applicant to adduce
evidence goes to the integrity of the proceedings which cannot be
sustained under the circumstances.
[52]
All the issues arising in paragraphs
[37] and [38] of this judgment can be answered by Mr Ndlovu alone. It
cannot be expected of
the applicant, without Mr Ndlovu, to answer to
issues like, for example
52.1
Whether, in the course of and as a
consequence of such assault, Mr Ndlovu believed he was in physical
danger and defended himself
against the assault;
52.2
Whether Mr Ndlovu had reasonable grounds
of defending himself as he did and whether he was entitled to do so;
52.3
Whether Mr Ndlovu's conduct in defending
himself was justified in the circumstances;
52.4
Whether the assault occurred as a result
of Mr Ndlovu being provoked into such assault.
[53]
For instance, the writers
Neethling-Potgieter-Visser
opine
that although they support the general rule that mere provocation
should not justify a physical assault, they, however, believe
that
this should not be an inflexible principle. The basic norm should
still be the legal convictions of the community, and cases
may
certainly arise where the verbal incitement is of such a nature that
in the particular circumstances the resultant physical
assault might
be considered reasonable.
[11]
In this instance, the reasonableness of the assault can only be
determined on the evidence of Mr Ndlovu. Without such evidence,
it
will be difficult if not impossible, for the applicant to prove its
defence of provocation.
[54]
It can also not be expected of the
applicant to be able to properly cross examine the respondent
and any of his witnesses without
a proper consultation with Mr Ndlovu
to obtain his version. Nor will the applicant be able to
cross-examine properly without the
instruction of Mr Ndlovu in court.
[55]
The further argument raised by the
applicant in the heads of argument is that having regard to the
factual disputes, and the nature
of the dispute between the parties,
it is patent from the fact of Mr Ndlovu's death that the court's
ability to resolve the factual
dispute will be severely compromised.
And, the applicant is correct.
[56]
The respondent, relying on the judgement
in
Bothma
[12]
submits that it is premature for
this court to decide on the issues of irrefutable trial prejudice.
According to him, the trial
related prejudice must be established by
the trial court. This submission, in my view, has not merit. What the
respondent fails
to consider is that each case must be decided on its
own facts. In this instance, the challenges are insurmountable. The
applicant's
potential witness, Mr Ndlovu has died and cannot be
revived . His evidence is gone and can never be retrieved. There is
thus no
way in which the fairness of the trial can be sustained. By
allowing the trial court to decide this issue will be a waste of time
and resources when the issue can simply be decided at this stage of
the proceedings.
[57]
The respondent, in his answering
affidavit, further denies any prejudice attributable to the applicant
and suggests that the applicant
can still run its case by calling or
subpoenaing eyewitnesses who were present when the incident occurred.
[58]
This argument by the respondent misses
the point. The point is, the respondent has already admitted the
issues in dispute in the
action. The issues in dispute as already
said, are such that they can only be resolved by Mr Ndlovu's
evidence. In any event, the
eyewitnesses, if any, can only testify
about what they
saw
and heard. They would not be able to testify about Mr Ndlovu's state
of mind at the time in question - whether he believed he
was in
danger or the effect the racism and verbal assault alleged to have
been perpetrated by the respondent and his brother, had
on him. These
are all issues that are within the knowledge of Mr Ndlovu and no one
else.
[59] In any
event, the incident took place so long ago that it is unlikely that
any witness, should
any be found, would be able to give any reliable
evidence anymore. It will, in any way, be prejudicial to expect the
applicant
to rely exclusively on evidence not given by its primary
witness.
[60] A case in
point is that of
Molala,
[13]
where the plaintiff in that case, sued for damages arising,
apparently, out of a police assault. Summons was issued on 3 March
1987 thereafter nothing occurred (save for the exchange of attorneys)
until the further particulars were delivered on 23 September
1991 -
that is, after a lapse of nearly four and half years. An application
for an order dismissing the action was granted, the
defendant
deposing that due to the delay it had become practically impossible
to identify and locate records and potential witnesses.
[61] To make
matters worse for the respondent, the only eyewitness known to the
parties, Mr Ngubane
could not be traced. This is on record and
remains undisputed. It is common cause that the Mr Ngubane is not a
primary witness
in the applicant's case. As already stated, the
defences raised by the applicant are defences in which the evidence
of its primary
witness, Mr Ndlovu, would have the effect of
discharging that
onus
placed on the applicant. As such this
argument cannot be sustained.
[62] The
available body of statements and documents which are attributed to Mr
Ndlovu will not assist
either as they will not have much evidentiary
weight and their admissibility might be questioned.
[63]
The respondent brings an argument that
in considering the prejudice leg of the enquiry the court must also
consider if there was
any delay on the applicant's part and whether
the applicant has availed itself of the remedies which it might
reasonably have been
expected to use in order to bring the action
expeditiously to trial.
[64]
In an attempt to win this argument, the
respondent relied on the approach postulated in the English appeal
court case in
Allen,
[14]
where the following was stated at 260:
"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."
[65]
It is on record that the applicant has
not been responsible for any unnecessary delay in this matter. The
respondent's argument
in this regard is, thus, flawed.
[66]
A further proposition by the respondent,
which in my opinion does not take the matter any further, is that the
court should take
into account the fact that the applicant proffered
no explanation for its failure to avail itself of the remedies to
bring the
matter to trial. The argument is that the applicant should
have set the matter down for trial in terms of the rules of court
within
six weeks after the close of pleadings.
[67]
It has been held that when an
application for dismissal is considered, the court should have regard
to the defendant's inactivity
in the matter. There are many
procedural devices open to a defendant during the course of an action
to force a dilatory plaintiff
to bring his action to finality. If a
defendant had failed to avail himself of these remedies when he might
reasonably have been
expected to do so, the court will look askance
at an application by him to dismiss the plaintiff's action merely
because of a delay
in prosecution. What is reasonable will depend on
the circumstances.
[15]
[68]
I do align myself with the reasoning of
the court as set out above. However, the difference in this matter is
that there are exceptional
circumstances that warrant the dismissal
of the respondent's action for want of prosecution. These exceptional
circumstances are
that Mr Ndlovu, a cardinal witness of the applicant
has died during this inordinate delay. His evidence, as it has been
said several
times in this judgment, is no longer available. Again,
as already indicated earlier in the judgement, the delay in this
judgement
was evaluated as an element in determining whether, in all
circumstances, it will taint the overall substantive fairness of the
trial if proceeded with. I find in this regard that it is so.
[69] The
prejudice is significant in the circumstances of this case. And on
this ground alone the
respondent's action ought to be dismissed for
want of prosecution.
[70]
In conclusion, it is my view that the
applicant has succeeded to prove its case and is entitled to the
relief it seeks. The delay
occasioned is unreasonable or inordinate
and although I found it to be excusable, the serious prejudice the
applicant stands to
suffer should the action proceed to trial,
outweighs such excuse.
[71]
In the premises l make the following
order:
1.
The
respondent's action is dismissed with costs, such costs to include
the wasted costs occasioned by the postponement of the trial
on 19
March 2013, and to include the costs of senior counsel.
2.
This
application is granted with costs.
E.M KUBUSHI
JUDGE
OF THE HIGH COURT
Appearance:
Applicant's
Counsel
: Adv. T. Dalrymple
Applicant's
Attorneys
: Everingham,
Rogers & Partners
Respondent's
Counsel
: Adv. L Kellermann
SC
Respondent's
Attorneys
: Hamel Attorneys
Date of
hearing
: 22 October 2019
Date
of judgment
: 14 February 2020
[1]
See Cassimjee v Minister of Finance 2014 (3) SA 198 (SCA).
[2]
Sinford v Hayley NO
2004 (3) SA 296
(C) para 8.
[3]
See The Road Accident Fund v Mothupi
2000 (4) SA 38
(SCA) at para
16.
[4]
See Gopaul v Subbamah
2002 (6) SA 551
(D & CLD) at 558A - B.
[5]
At para 11.
[6]
See S v Dzukuda and Others; S v Tshilo
[2000] ZACC 16
;
2000 (2) SACR 443
(CC) para
51.
[7]
See Bothma v Els and Another
2010 (2) SA 622
(CC) para 68.
[8]
See Chief Lesilpo v Northwest Agricultural Bank
[1999] ZACC 16
;
2000 (1) SA 409
(CC)
para 22.
[9]
Erasmus: Superior Court Practice 2ed Vol 2 at 01 521.
[10]
OT Zefferet and AP Paizes : The South African Law of Evidence 2ed at
883.
[11]
See Neethling Potgieter - Visser: law of Delict Ged at p100 lt 473.
[12]
See Bothma v Els and Another
2010 (2) SA 622
(CC) para 82.
[13]
See Molala v The Minister of Law and Order and Another 1993 (1) SA
673 (W).
[14]
See Allen v Sir Alfred McAlpine & Sons Ltd; Bostik v Bermondsey
and Southwark Group Hospital Management Committee; Sternberg
v
Hammond [1968] 1 All ER 543 (CA).
[15]
See Gopaul at 558G -I