REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-093687
In the matter between:
EFN INVESTMENTS (PTY) LTD
(formerly CADAC (PTY) LTD) Applicant
and
MITTAL STEEL SOUTH AFRICA LIMITED Respondent
This judgment was handed down electronically by circulation to the parties’
representatives by email and by uploading the judgment onto CaseLines. The date of
delivery of the judgment is deemed to be 25 March 2026.
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES:NO
(3) REVISED: NO
25 March 2026 _________________________
DATE SIGNATURE
2
SOUTHWOOD, AJ:
Introduction
[1] This is an application by EFN Investments (Pty) Ltd, formerly Cadac (Pty)
Ltd, for leave to appeal against the whole of my judgment and order
delivered on 23 February 2026, in terms of which the application to dismiss
the action for want of prosecution was refused.
[2] The applicant seeks leave to appeal to the Supreme Court of Appeal
although its counsel, Mr De Oliveira, indicated that if leave is given in terms
of section 17(1)(a)(i) of the Superior Courts Act 1, it would be in order to
grant leave to the full court whereas if leave is granted in terms of section
17(1)(a)(ii) of the Superior Courts Act , leave should be granted to the
Supreme Court of Appeal.
[3] The principal issue is whether the applicant has demonstrated that leave to
appeal ought to be granted under section 17(1)(a) of the Superior Courts.
Applicable legal principles
[4] Section 17(1)(a)(i) provides that leave to appeal may only be given where
the court is of the opinion that the appeal would have a reasonable prospect
of success.
[5] In Smith,2 the Supreme Court of Appeal held that:
1 Act 10 of 2013
2 Smith v S (475/10) [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) (15 March 2011) at [7]
3
‘What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a court of
appeal could reasonably arrive at a different conclusion to that of the
trial court and that those prospects are not remote but have a realistic
chance of succeeding. More is required than that there is a mere
possibility of success, that the case is arguable on appeal or that the
case cannot be categorised as hopeless. There must, in other words,
be a sound, rational basis for the conclusion that there are prospects
of success on appeal’.
[6] In the judgment, which is the subject of this application, the principles stated
in Cassimjee3 were applied, namely that a court considering dismissal for
want of prosecution must consider whether there was an inordinate delay,
whether the delay was inexcusable, whether serious prejudice was
established, and whether the delay constituted an abuse of process.
[7] It must also be borne in mind that the decision whether to dismiss an action
for want of prosecution is quintessentially a discretionary one. An appellate
court is therefore not entitled to interfere merely because it may have come
to a different conclusio n on the same facts. Interference is justified only
where the discretion was not exercised judicially or was influenced by a
wrong principle of law or a material misdirection on the facts. 4
[8] Section 17(1)(a)(ii) provides that leave to appeal may only be given where
the court is of the opinion that there is some other compelling reason why
3 Cassimjee v Minister of Finance 2014 (3) SA 198 (SCA)
4 Cassimjee fn 3 at [23]
4
the appeal should be heard, including conflicting judgments on the matter
under consideration.
[9] In SALC,5 the Supreme Court of Appeal found that the jurisprudence in
relation to mootness is a useful guide. The usual ground for exercising a
discretion in favour of leave is that the case raises a discrete issue of public
importance that will have an effect on future matters . However, the Court
indicated that merely because a High Court determines an issue of public
importance this does not mean that it must grant leave to appeal. The
merits of the appeal remain vitally important and will be decisive . If the
purpose of the appeal is to raise fresh arguments that have not been
canvassed before the High Court, consideration must be given as to
whether the interests of justice favour the grant of leave to appeal although
it is undesirable that an appeal court is asked to decide legal issues as a
court of both first and last instance. However, if a point of law emerges from
the papers, it is undesirable that the case be determined without
considering that point.
Grounds advanced and evaluation
[10] The grounds for leave to appeal, in essence, are the following:
a. there was no or insufficient regard to the principle that inactivity on
the party of the defendant, where no procedural step is called for is
not to be regarded as conduct inducing the plaintiff to believe that
5 Minister of Justice and Constitutional Development and Others v Southern African Litigation
Centre and Others 2016 (3) SA 317 (SCA) at [23]-[24]
5
the defendant intends to proceed to trial , with particular reference
to the period between the two pre -trial conferences held on 17
January 2023 and 25 April 2024, respectively ; and that anterior
delay is not irrelevant if the plaintiff is subsequently guilty of further
unreasonable delay;
b. there was no or insufficient regard for the fact that delay may be
slight but the prejudice may be serious and cases where delay is
inordinate but prejudice is slight;
c. there was no or insufficient regard to the fact that the most
egregious delays were not explained;
d. the court erred in refusing to admit the confirmatory affidavit of Mr
Jonosky;
e. the allegations in regard to the applicant’s prejudice was met with
bare denials.
[11] Mr De Oliveira, for the applicant, clarified that the applicant did not rely on
any error of fact in the judgment. He indicated, further, that he was not
contending that the court did not apply the traditional requirements or
consider these requirements but, rather, that the approach was ‘ one-
dimensional’.
[12] In my view, the grounds do not indicate that the court did not exercise its
discretion in a judicial manner or that the discretion was exercised on a
wrong principle of law or a misdirection of the facts. In the absence of these
factors, the applicant does not have reasonable prospects of success.
6
[13] The applicant's principal contention is that I erred in treating the period prior
to the pre-trial conference of 25 April 2024 as not, without more, decisive in
its favour.
[14] That contention cannot be sustained when regard is had to the full
procedural history and to the principle, recognised in Cassimjee, that the
conduct of the defendant is always relevant when dismissal for want of
prosecution is sought.
[15] In the principal judgment I did not hold that the earlier history was irrelevant
for all purposes. What I found was that, on the facts before me, the applicant
could not rely on that earlier delay (as well as others) in isolation when it
had, subsequently, participated in the litigation, including the pre -trial
processes, in such a way that it induced a reasonable belief that it was
continuing with the trial . If it did not establish that the respondent was
thereafter guilty of such further unreasonable del ay, it could not obtain
dismissal of the action.
[16] The applicant now wishes to focus on the period between the two pre -trial
consultations of 2023 and 2024 despite this not being a period highlighted
in the founding affidavit. The judgment found that the applicant had on
many occasions, including at the pre-trial conference held on 25 April 2024,
conducted itself so as to indicate that it was going to proceed with the trial.
Accordingly, any delays prior to 25 April 2024, in the absence of the
respondent’s delay, thereafter, cannot serve as a basis for dis missing the
action.
7
[17] The applicant does not take issues with these findings . This ground does
not indicate that the court did not exercise its discretion judicially or was
influenced by a wrong principle of law or a material misdirection on the
facts. At most, the applicant advances an argument that another court might
weigh the facts differently. That is insufficient, especially where the
impugned conclusion formed part of the exercise of a judicial discretion.
[18] The same applies to the second ground. There is nothing to indicate that
the court’s discretion was not exercised judicially or was influenced by a
wrong principle of law or a material misdirection on the facts.
[19] As to the complaint concerning the personal knowledge of Mr Lombard, the
respondent’s witness, and his failure to explain certain delays, the analysis
of the first ground is applicable here.
[20] Again, this ground fails to establish that the court did not exercise its
discretion judicially or was influenced by a wrong principle of law or a
material misdirection on the facts.
[21] The applicant also attacks my refusal to admit the confirmatory affidavit
deposed to by Mr Jonosky which was delivered the day before the hearing.
That ruling too involved the exercise of a discretion. The affidavit was
delivered out of time and out of sequence, without an application for leave
that it be admitted. The applicant has not shown that the court’s discretion
was exercised capriciously, upon a wrong principle, or because of a
misdirection of fact.
8
[22] The challenge directed at my findings on prejudice also does not indicate
that the court’s discretion was not exercised judicially or was influenced by
a wrong principle of law or a material misdirection on the facts.
[23] In the principal judgment I held that the applicant's allegations of prejudice
lacked the necessary detail to establish serious and irreparable prejudice
rendering a fair trial impossible. Mr De Oliveira contended that the court
should simply accept the vague allegations of the applicant’s witness in the
face of bare denials. Mr Posthumus contended, correctly, that the applicant
must make out its case in the founding affidavit. The judgment found that
the applicant had failed to establish its prejudice cau sed by the delays in
this matter, particularly given the indications of trial readiness at the pre -
trial conferences held in 2023 and 2024.
[24] The applicant has not shown any material misdirection in that evaluation.
This is pertinent given the concession by Mr De Oliveira that the applicant
was not contending that the judgment was wrong on the facts.
Discretion and appellate restraint
[25] The relief sought in the main application was not one to which the applicant
was entitled as of right upon proof of any single factor. The court was
required to undertake a composite evaluation of delay, explanation,
prejudice, the parties' conduct, and th e interests of justice, and then to
determine whether dismissal of a long-standing action was justified.
[26] That evaluative judgment involved the exercise of a true discretion.
9
[27] In those circumstances, an appeal court cannot simply interfere because it
may itself have attached greater weight to the age of the litigation, or lesser
weight to the significance of the April 2024 pre-trial conference, or because
it may have been more receptive to the applicant's allegations of prejudice.
The question is not whether another court could have reached a different
conclusion, but whether there are reasonable prospects that it would do so
on a proper basis for appellate interference.
[28] In my view, the applicant has not crossed that threshold. The grounds of
appeal reveal dissatisfaction with the outcome, but they do not identify a
demonstrable error of principle or material misdirection sufficient to justify
appellate intervention in a discretionary decision of this kind.
[29] Accordingly, leave to appeal cannot be granted in terms of section
17(1)(a)(i) of the Superior Courts Act.
[30] The basis for seeking leave in terms of section 17(1)(a)(ii) is that the
Supreme Court of Appeal has not pronounced on the question of whether
an action may be dismissed for want of prosecution in circumstances where
an inordinate or unreasonable delay does not, in and of itself, amount to an
abuse of court process.
[31] In my view, Cassimjee,6 has dealt with this proposition authoritatively.
[32] Cassimjee found that the source of a court’s power to dismiss an action for
want of prosecution i s its inherent power to regulate its own process
6 Cassimjee fn 3
10
including the right to prevent an abuse of its process in the form of frivolous
or vexatious litigation. 7
[33] Cassimjee went on to find that there are no hard and fast rules as to the
manner in which the discretion to dismiss an action for want of prosecution
should be exercised but indicated three requirements, namely whether
there was a delay in the prosecution of the action , whether the delay was
excusable and whether the defendant was seriously prejudiced thereby .8
Cassimjee held that the question to be determined is whether the delay is
so unreasonable or inordinate as to constitute an abuse of the process of
court.9 Cassimjee also held that the defendant’s conduct must also be
taken into account. 10
[34] Ultimately, held Cassimjee, the enquiry involves a close and careful
examination of all the relevant circumstances, including the period of delay,
the reasons therefor and the prejudice, if any, caused to the defendant. 11
[35] The applicant seeks leave to the Supreme Court of Appeal to persuade it
that relevant facts in addition to an inordinate delay, such as its own conduct
or the absence of prejudice , do not need to be considered in order for a
court to determine whether it is in the interests of justice to dismiss the
7 Cassimjee fn 3 at [8]
8 Cassimjee fn 3 at [11]
9 Cassimjee fn 3 at [13]
10 Cassimjee fn 3 at [21]
11 Cassimjee fn 3 at [11]
11
action. In my view, given the principles enunciated in Cassimjee, this
argument is unlikely to find favour with the Supreme Court of Appeal.
[36] Furthermore, this ground does fall within the circumstances contemplated
by SALC.
[37] Accordingly, in my view, there is no other compelling reason to grant leave
to appeal per section 17(1)(a)(ii) of the Superior Courts Act.
Order
[38] Accordingly, the following order is made:
1. The application for leave to appeal is dismissed.
2. The applicant is ordered to pay the respondent's costs of the
application for leave to appeal, including the costs consequent upon
the employment of counsel, on scale C.
___________________________
F SOUTHWOOD
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
12
Date of hearing: 24 March 2026
Date of judgment: 25 March 2026
For the Applicant: M De Oliveira
instructed by KWA Attorneys
For the Respondent: I Posthumus
instructed by Pagel Schulenberg Inc