Neven v University of Cape Town (10977/05) [2008] ZAWCHC 33 (5 June 2008)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 33
|

|

Neven v University of Cape Town (10977/05) [2008] ZAWCHC 33 (5 June 2008)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD
HOPE PROVINCIAL DIVISION)
CASE NO: 10977/05
In the matter
between
CRAIG NEVEN
Plaintiff
and
THE UNIVERSITY
OF CAPE TOWN
Defendant
JUDGMENT delivered this 5
th
day of June 2008
________________________________________________________________
NDITA, J
INTRODUCTION
[1]
This is an application brought by the defendant for the dismissal of
the plaintiff’s
action on the basis that he has failed to provide
security for costs as ordered by the Court.
[2]
Mr Nevin appeared in person while Mr Howie represented the defendant.
At the commencement
of the hearing this Court enquired from the
plaintiff whether he wished to obtain legal representation and he
responded that he did
not. He also indicated that he did not wish to
file an answering affidavit. The Court explained that this is purely
a legal application
and suggested that it would be advisable for the
plaintiff to obtain legal representation. The plaintiff was none the
less adamant
that he did not wish to engage services of a legal
practitioner.
FACTUAL
BACKGROUND
[3]
In 1995, the plaintiff was accepted by the defendant as registered a
student pursuing
the degree of Doctor of Philosophy (“PhD”) in
the Research Unit for Exercise Science and Sports Medicine. On 8
October 2001 the
plaintiff submitted a thesis for examination
entitled “
Initiation and Control of Gait from First Principles –
a Mathematically Animated Model of the Foot.”
The defendant, in
terms of its procedures appointed three experts to examine the
plaintiff’s thesis and make recommendations. The
findings of the
experts were unfavourable to the plaintiff. An independent assessor
appointed by the plaintiff to reconsider the
plaintiff’s thesis
reached the conclusion that “
there were no reasonable prospect
that the plaintiff’s thesis would be a contribution to science and
that it therefore lacked the
necessary standard of proficiency for
the defendant to confer a PhD upon the plaintiff.”
THE
ACTION
[4]
After the plaintiff was advised that he had not been awarded a PhD,
he instituted action
against the defendant claiming various forms of
relief (including monetary claims totaling R 19 651 550.00). The
action arises directly
out of the plaintiff’s relationship with the
defendant as
a student and the
fact that he was not awarded a PhD.
THE
APPLICATION FOR SECURITY FOR COSTS
[5]
The defendant’s contention was that in every aspect the plaintiff’s
claims were
unsustainable and his action is therefore vexatious.
Accordingly on these grounds the defendant launched an application
seeking an
order that the plaintiff provide it with security for
costs in the amount of R75 000, 00 in respect of the action. The
plaintiff
opposed the application and at the preliminary hearing of
the application in the Third Division of this Court on 3 July 2007
the
Court ordered that:
1.
the application be postponed to 15 November 2007 for hearing on the
semi-urgent
roll;
2.
the plaintiff file an answering affidavit by 31 August 2007;
3.
the defendant file its replying affidavit by 19 October 2007;
4.
heads of argument be file; and
5.
costs of the application stand over for later determination, save for
the fact
that the plaintiff was ordered to pay the costs of the
hearing on 3 July 2007.
[6]
The plaintiff did not file an answering affidavit and the matter was
argued before Saldanha
AJ on15 November 2007 on only the defendant’s
papers and what the plaintiff submitted in person from the bar.
Subsequent to the
full hearing of the application Saldanha AJ found
in favour of the defendant and made the following order, that:
1.
the plaintiff provide the defendant with security for costs in
respect of the action
in the amount of R75 000,00 by 31 January 2008;
2.
that the action be stayed until such time that the plaintiff complied
with sub-paragraph
1 above; and
3.
Should the plaintiff fail to comply with sub-paragraph 1 above, then
the defendant
was given leave to apply to this Court on the same
papers amplified as may be necessary for the dismissal of the
plaintiff’s action.
THE
APPLICATION FOR DISMISSAL OF THE PLAINTIFF’S CLAIM
[7]
It is common cause that the plaintiff failed to provide the defendant
with the security
for costs by 31 January 2008. Accordingly, on 11
February the defendant launched an application for the dismissal of
the plaintiff’s
claim as a result of his failure to provide
security for costs as ordered by the Court. The matter was placed on
the Third Division
roll of this Court for the 14
th
day of
February 2008. The plaintiff appeared in person and stated that he
wished to oppose the application. As a result of the plaintiff’s
opposition and by agreement between the parties an order was granted
by Motala J in terms of which:
1.
the application was postponed to 4 June 2008 for hearing on the
semi-urgent roll;
2.
the plaintiff was obliged to file his answering affidavit by no later
than 31 March
2008;
3.
the defendant could file a replying affidavit by no later than 5 May
2008;
4.
the parties were obliged to file heads of argument in accordance with
Court Notice
10 (1) bis; and
5.
costs stood over for later
determination.
[9]
The plaintiff failed to file his answering affidavit by 31 March
2008, and has until
the hearing of this matter on 4 June 2008 not
filed any answering affidavit. Accordingly, the plaintiff has not
advanced any evidence
in opposition to the application and the
defendant has therefore not filed a replying affidavit. At the
hearing of this application
the defendant asked for an order that:
1.
the plaintiff’s claim be dismissed;
2.
the costs of the action be paid by the plaintiff; and
3.
the costs of the application for dismissal be paid by the plaintiff.
APPLICABLE
LAW AND ANALYSIS
[10]
It is trite law that the Court has inherent jurisdiction to dismiss
actions where there had been
a failure to furnish security which had
been ordered by the Court. (See
Wallace NO v Commercial Union CO
of SA LTD
1999 (3) SA 804
(C) paragraph (B – D);
Excelsior
Meubels BPK v Trans Unie Ontwinkels
1957 (1) SA 74)
(T). However,
this discretion must be exercised judiciously, bearing in mind that
courts are open to all, and it is truly in exceptional
cases that
doors will be closed to anyone who desires to prosecute an action.
See
Commercial Union
supra
at 810 A – B).
[11]
In the present case, as I earlier stated in this judgment, the
plaintiff was ordered by a Court
to furnish security for costs by 31
January 2008, failing which the defendant was given leave to apply to
this Court for the dismissal
of the plaintiff’s action. Mr Howie,
for the defendant argued that on this basis alone, the defendant is
entitled to the dismissal
of the plaintiff’s action. I am not
persuaded to dismiss the plaintiff’s action on this basis alone.
Trollip J, in
S.A Scottish Finance Corporation Ltd v Smit
1966
(3) SA 634
D – F, remarks that the dismissal of a plaintiff’s
action has serious consequences – the waste of costs, time and
effort already
expended on the action, usually the liability to pay
the defendant’s costs, and having to re-institute the action if the
plaintiff
wishes to proceed. These consequences have to be borne in
mind when a Court exercises its discretion and as such the action
should
not be dismissed unless
“
the
plaintiff has recklessly disregarded his obligations, or … the case
appears to be hopeless, or the Court is convinced that the
plaintiff
does not seriously intend to proceed.”
These
remarks bring me to the second leg of Mr Howie’s argument that a
dismissal is warranted on the basis that the plaintiff has
recklessly
disregarded his obligations.
[12]
It is not in dispute that up until the hearing of this matter on 4
June 2008, the plaintiff had
neither furnished the security for costs
nor tendered any explanation. In his submission (from the bar), the
plaintiff indicated
that he did not wish to file any affidavits.
Furthermore, he did not consider the order by Saldanha AJ as applying
to him because
it referred to “having heard argument from both
counsel” whereas he was not legally represented. The puzzling
aspect of the plaintiff’s
submission is that he has not appealed
against the judgment.  Furthermore, in that judgment, Saldanha
AJ, literally implored
the plaintiff to consider legal representation
in further hearings but he remained adamant that he did not wish to
be legally represented.
From the day the judgment was delivered on 14
December 2007 until the matter was heard on 4 June 2008, the
plaintiff had more than
six months to either furnish security as
ordered or put up a proper defence or appeal against the judgment. In
my view, he was reckless
in not taking any action despite the
existence of a court order. This Court is in the dark as to why he
failed to comply with an
order by Motala J, that he should file his
answering affidavit and heads of argument as stipulated. Furthermore,
when the application
was served on him he presumptuously made use of
the opportunity to oppose it. The plaintiff cannot therefore be
allowed to keep an
action which the court ordered he could only
prosecute if he provided security for the plaintiff’s costs. The
following remarks
by Cillie J in
Exelsior Meubels
supra at 77
D – E are appropriate in the circumstances of the present case.
“
In
this case, it must have been the intention of the Court, when the
provision of security was ordered, that the respondent was not
to
proceed with the action unless and until he provided security for the
plaintiff’s costs. The respondent was given time to find
the amount
of money, but the security was not provided, it is illogical that the
respondent should proceed with his action and inequitable
that by
disregarding the Court order he should be allowed to alive that
action which the Court had ordered he could only prosecute
if he
provided security for the applicant’s costs.”
13]
I turn now to consider the plaintiff’s submission that dismissing
the action is tatamount
to a violation of his right to litigate or be
heard. It should be noted that right to be heard operates within the
context of court
procedures. The converse of it is that a litigant is
entitled to have closure on litigation and after an inordinate delay
he is entitled
assume that the losing party (in this case the
plaintiff in the security for costs application) has accepted
finality of the order
and does not intend to pursue the matter any
further. The principle of finality of litigation was applied by the
Constitutional Court
in
Van Wyk v Unitas Hospital and Another
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at 479 H and 480 A – B. Although it was
applied in the context of an application for condonation, Mr Howie
has correctly submitted
that it is relevant in the instant matter and
is set out as follows:
“
This
is an important principle involved here. An inordinate delay induces
a reasonable belief that the order has become unassailable.
This is a
belief that the hospital entertained and it was reasonable for it to
do so. It waited for some time before it took steps
to recover the
costs. A litigant is entitled to have closure in litigation. The
principle of finality in litigation is intended to
allow parties to
get on with their lives. After an inordinate delay a litigant is
entitled to assume that the losing party accepted
finality of the
order and does not pursue the matter any further. To grant
condonation after an inordinate delay in the absence of
a reasonable
explanation, would undermine the principle of finality and cannot be
in the interests of justice.
In
applying this principle to the facts of the present matter, I must
reiterate that in view of the fact that the plaintiff failed
to give
a reasonable explanation, the defendant was entitled to assume that
the plaintiff had accepted the finality of the order
to pay costs.
[13]
Finally, Mr Howie submitted that if the Court is not inclined to
dismiss the plaintiff’s claim,
then the defendant would still be
satisfied if the court ordered an absolution from the instance.
Taking into account the drastic
effect of a dismissal of an action,
in my view the appropriate order is that of an absolution from the
instance.
CONCLUSION
[14]
In view of the above findings, I make the following order:
1.
Absolution from the instance is granted in the plaintiff’s action
against the
defendant under case number 10977/05 (“the action”)
2.
The costs of the action shall be paid by the plaintiff.
3.
The costs of the application shall be paid by the plaintiff.
NDITA,
J