In a December 2024 judgment, the High Court discusses the requirements for a successful application to dismiss a claim due to want of prosecution.
Quoting from the 2014 SCA judgement in Cassimjee v Minister of Finance there are three primary requirements that must be met:
“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. Ultimately, the enquiry will involve a close and careful examination of all the relevant circumstances, including the period of the delay, the reasons therefor, 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 use in order to bring the action expeditiously to trial.”
The court first examined whether there was a delay in the prosecution of the action. The plaintiff initiated the main action against the defendant and others in March 2017, seeking indemnity for damages suffered during 2014 and 2015. The action against the other defendants was settled in 2019, leaving the applicant for dismissal as the sole defendant. Since April 2019, there had been no significant developments in the prosecution of the action. The court noted that the last meaningful step in the litigation was the withdrawal of the action against the other defendants in April 2019. Since then, the plaintiff had not taken any substantial steps to progress the case, such as delivering new expert summaries or undertaking pre-trial steps. This prolonged inactivity constituted a clear delay in the prosecution of the action.
Regarding inexcusable delay, the plaintiff argued that it needed time to “re-strategise” and consult with experts. However, the court found this explanation inadequate. Despite claiming to have consulted experts for over two years, no expert reports were produced. The court deemed it improbable that such consultations would take this long without any filed expert summaries, concluding that the explanation was vague and the delay inexcusable.
The final requirement was to assess whether the defendant was “seriously prejudiced” by the delay. The court emphasised that the passage of time from the events in question (2014/2015) to the anticipated trial date (potentially 2026) would make it nearly impossible for the defendant to secure a fair trial, highlighting three key points of prejudice:
- Witness Availability: Identifying and securing the presence of relevant witnesses would be highly unlikely after such a long period as most potential witnesses where third parties to whom the defendant had no relationship.
- Reliability of Testimony: Even if witnesses could be located, their ability to provide reliable accounts of the events would be significantly compromised due to the passage of time.
- Documentary Evidence: There was no documentary evidence nor would there ever have been, available on the issues in contention, which served to exacerbate the prejudice suffered regarding the availability and reliability of witness testimony.
The court concluded that the delay had caused significant prejudice to the defendant, making a fair trial impossible. The prolonged delay meant that crucial evidence and reliable witness testimony would be unattainable, thereby undermining the fairness of the trial process. Accordingly, having successfully shown all the requirements where met, the court granted the application to dismiss the claim due to want of prosecution.
This judgment underscores the importance of timely prosecution in litigation and the potential consequences of prolonged inactivity. It serves as a reminder that the interests of justice require that claims be pursued diligently and without unnecessary delay.
SASRIA SOC v TUHF (2023-046891) [2024] ZAGPJHC — (23 December 2024)