THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 455/11
Reportable

In the matter between:

MOHAMMED CASSIMJEE                                                           Appellant

and

THE MINISTER OF FINANCE
Respondent

Neutral citation: Cassimjee v Minister of Finance (455/11) [2012] ZASCA
101 (1 June 2012)

Coram: Mthiyane DP, Brand and Cachalia JJA, Southwood and Boruchowitz
AJJA

Heard:
22 May 2012

Delivered: 1 June 2012

Summary:       Procedure – inordinate delay in prosecuting claim – inherent
power of the court to prevent abuse of its process – whether discretion
properly exercised to dismiss action for want of prosecution.

_________________________________________________________________________

ORDER
__________________________________________________________________

On appeal from: KwaZulu-Natal High Court, Durban (Seegobin AJ sitting as
court of first instance):

The appeal is dismissed with costs.

_________________________________________________________________

JUDGMENT
_________________________________________________________________

BORUCHOWITZ AJA (MTHIYANE DP, BRAND and CACHALIA JJA,
SOUTHWOOD AJA concurring)

[1] This is an appeal against the decision of a high court to dismiss an
action for want of prosecution. The order was granted by the KwaZulu-Natal
High Court, Durban (Seegobin AJ) on 29 July 2010 and the appeal is with
leave of that court.

[2] On 23 March 1977 officers of the Department of Customs and Excise
seized two tankers from the appellant who operated a transport business. On
16 November 1977 the appellant instituted an action against the
Commissioner for South Africa Revenue Service (the Commissioner) in the
then Durban and Coast Local Division of the Supreme Court in which he
claimed return of the tankers that had been seized, alternatively, a sum of

money which then represented their value. In addition, the appellant sought
payment of an amount as damages representing the loss of the use of the
tankers from the date of their seizure on 23 March 1977.

[3] Over 32 years have passed between the date of the institution of the
action and the delivery of the judgment appealed against. What transpired
during the intervening period is largely common cause and can be briefly
stated. The Commissioner delivered a request for further particulars to the
summons on 25 January 1978 and the appellant furnished a response thereto
on 13 October 1978.  On 2 May 1979 the Commissioner delivered its plea and
a claim in reconvention. The reconventional claim was for the payment of
duty in respect of diesel oil that the appellant had supplied to certain
unidentified persons during the period 6 May 1976 to June 1977. A request for
further particulars to the plea and claim in reconvention were thereafter
delivered, and on 31 March 1980 an application was brought to compel the
furnishing of the further particulars. The particulars were furnished on 23 July
1980. The Commissioner took no steps to secure the delivery of a plea to the
counter-claim and the pleadings were never closed. On 27 January 1981 the
appellant delivered a notice calling upon the Commissioner to produce certain
documents referred to in the plea and counter-claim but this request elicited no
response.

[4] A period of some 20 years then elapsed during which no steps were
taken by either party to advance the action. On 27 November 2001 a firm of
attorneys placed themselves on record for the appellant and gave notice
purporting to place the matter on the awaiting trial roll. In the absence of a
plea to the claim in reconvention the placement on the trial role was
premature. In consequence this step did nothing to bring the matter nearer to
completion. In February 2002 the state attorney specifically enquired from the

appellant’s then attorneys ‘is your client serious in pursuing this matter’,
whereupon the appellant’s attorney confirmed in April 2002 that he was. A
further four-year period was permitted to elapse during which neither party
took steps to advance the action.

[5] On 11 August 2006 a new firm of attorneys placed themselves on
record on behalf of the appellant and a notice of intention to amend the
particulars of claim was delivered. On the same day the Commissioner
delivered a notice of objection to the proposed amendment which notice, it is
common cause, did not comply with the provisions of rule 28(3) of the
Uniform Rules of Court. On 3 September 2006 the appellant issued a notice in
terms of rule 30(2)(b) to set aside the respondent’s notice of objection as an
irregular proceeding. The appellant then brought an application in terms of
rule 30 to set aside the objection as an irregular proceeding.

[6] On 28 November 2006, the Commissioner delivered an application in
which the following relief was claimed: that the Commissioner for South
African Revenue Service be substituted for the Minister of Finance (the
respondent); that the application to set aside the notice of objection as an
irregular step be dismissed with costs; that both the action and claim in
reconvention in the main action be dismissed and that the appellant pay the
costs of the application.

[7] The dismissal of the appellant’s action was sought on the ground that it
had been dormant since 1981 and that to permit its revival would give rise to
irremediable prejudice amounting to an abuse of the process of court. The
appellant’s answering affidavit to this application was filed 18 months later in
June 2009.

[8] The high court has the inherent power, both at common law and in
terms of the Constitution (s 173), to regulate its own process. This includes the
right to prevent an abuse of its process in the form of frivolous or vexatious
litigation (see Western Assurance Co v Caldwell’s Trustee 1918 AD 262 at
271; Corderoy v Union Government (Minister of Finance) 1918 AD 512 at
519; Fisheries Development Corporation of SA Ltd v Jorgensen & another
1979 (3) SA 1331 (W) at 1338F-G; Beinash & another v Ernst & Young &
others 1999 (2) SA 116 (CC) paras 10 and 17).

[9] Section 34 of the Constitution provides that everyone has the right to
have a dispute that can be resolved by the application of law decided by a
court or tribunal in a fair public hearing, but a limitation of the protected right
is permissible provided that such limitation is reasonable and justifiable. The
right of a high court to impose procedural barriers to litigation on persons who
are found to be vexatious was recognised in Beinash (supra para 17). In that
matter it was held that restricting access to vexatious litigants was
indispensable to protect and secure the rights of those with meritorious
disputes and necessary to protect bona fide litigants, the processes of the
courts and the administration of justice. Compare also Giddey NO v JC
Barnard and Partners 2007 (5) SA 525 (CC) paras 15-18. The same
considerations, I believe, would apply to an abuse of court procedures.

[10] An inordinate or unreasonable delay in prosecuting an action may
constitute an abuse of process and warrant the dismissal of an action. See,
Verkouteren v Savage 1918 AD 143 at 144; Schoeman & andere v Van
Tonder 1979 (1) SA 301 (O) at 305C-E; Kuiper & others v Benson 1984 (1)
SA 474 (W) at 476H-477B; Molala v Minister of Law and Order 1993 (1) SA
673 (W) at 676B-679I; Bissett & others v Boland Bank Limited & others 1991
(4) SA 603 (D) at 608C-E; Sanford v Haley NO 2004 (3) SA 296 (C) para 8;

Gopaul v Subbamah 2002 (6) SA 551 (D) at 558F-J; Golden International
Navigation SA v Zeba Maritime Co Ltd; 2008 (3) SA10 (C) Zakade v
Government of the RSA [2010] JOL 25868 (ECB).

[11] 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. Ultimately the
enquiry 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

[12] An approach that commends itself is that postulated by Salmon LJ in
the English case of Allen v Sir Alfred McAlpine & Sons Limited; Bostic v
Bermondsey & Southwark Group Hospital Management Committee.
Sternberg & another v Hammond & another [1968] 1 All ER 543 (CA),
where the following was stated at 561e-h:
‘[A] defendant may apply to have an action dismissed for want of prosecution either (a)
because of the plaintiff's failure to comply with the Rules of the Supreme Court or (b)
under the Court's inherent jurisdiction. In my view it matters not whether the application
comes under limb (a) or (b), the same principles apply. They are as follows: In order for
such an application to succeed, the defendant must show:

(i)
that there has been inordinate delay. It would be highly undesirable and indeed
impossible to attempt to lay down a tariff - so many years or more on one side of the line
and a lesser period on the other. What is or is not inordinate delay must depend on the facts
of each particular case. These vary infinitely from case to case, but it should not be too
difficult to recognise inordinate delay when it occurs.
(ii)
that this inordinate delay is inexcusable. As a rule, until a credible excuse is made
out, the natural inference would be that it is inexcusable.
(iii)
that the defendants are likely to be seriously prejudiced by the delay. This may be
prejudice at the trial of issues between themselves and the plaintiff, or between each other,
or between themselves and the third parties. In addition to any inference that may properly
be drawn from the delay itself; prejudice can sometimes be directly proved. As a rule, the
longer the delay, the greater the likelihood of serious prejudice at the trial.’

[13] At issue in the appeal is whether the court below had properly
exercised its discretion to dismiss the appellant’s claim for want of
prosecution. This in turn depends on the factual question whether the delay
was so unreasonable or inordinate as to constitute an abuse of the process of
court.

[14] The appellant has advanced two principal reasons for the delay. First,
that he had problems with the attorneys he had instructed in the matter, and
second, that he had experienced health problems which prevented him from
properly dealing with the matter. The appellant has explained that from the
inception of the matter the various attorneys and counsel that he instructed
were unable to make any progress. In 1992, one of his attorneys died while
another was struck off the roll in 1997. One of the several advocates
instructed on his behalf simply left without anything being done in the matter,
and repeated inquiries regarding any progress elicited no satisfactory
responses. The appellant went from one attorneys’ firm to another with no
real progress being made. Eventually in 2001 the firm of attorneys instructed
by him succeeded in placing the matter on the awaiting trial roll but this was

done prematurely. Their mandate was subsequently terminated and another
firm was instructed. Due to a lack of progress this firm’s mandate was
terminated on 11 August 2006 and on the same day a new firm was
appointed. The latter firm of attorneys filed the rule 28 notice purporting to
amend the particulars of claim but when no further progress was made in the
appellant terminated their mandate and appointed his current attorneys.

[15] From about 1998 the appellant claims to have suffered extensive health
problems. He claims that he has cardiac problems and suffers from
hypertension and in 1998 he suffered a stroke and was diagnosed with Type II
Diabetes Mellitus. In 2000 he underwent a coronary bi-pass and in 2000
underwent a second operation. He asserts that as a result of his poor health
and repeated admissions to hospital it was not possible for him to properly
attend to the litigation.

[16] The appellant’s inactivity especially during the 20 year period from
1981 has not been adequately explained. Since 27 January 1981, when the
notice to produce certain documents was filed and until 2001, the appellant
and his legal representative appear to have taken no steps whatever to
prosecute the action. The premature placement of the matter on the awaiting
trial roll on 27 November 2001 did little to advance the action and the further
five year delay until August 2006 is not explained. The appellant fails to
explain what steps he personally took to expedite the matter and what
enquiries he made of his attorneys. It is difficult to accept that he could not
during the long passage of time have taken steps to insist his legal
representatives to bring the matter to finality. His alleged health condition is
not properly substantiated, but even if one were to accept that he suffers from
ill health it is difficult to believe that he was unable to communicate with and
give instructions to his legal advisers. In any event, the problems regarding

the appellant’s health only surfaced in 1998 some twenty years after the
action was instituted.

[17] The appellant’s version is characterised by a profound absence of
detail. The court below rightly observed that the appellant has not produced a
shred of evidence to substantiate any of the allegations made by him. He
claims not to have had access to the files that were in his attorneys’
possession but has failed to explain what attempts were made to obtain such
access. In my view, nothing the appellant has said properly explains or
excuses his inactivity. The inference is irresistible that the appellant had
decided for some unexplained reason not to proceed with the action or to
advance it expeditiously to trial.

[18] That, however, is not the end of the enquiry. The court is required to
consider whether the delay has occasioned prejudice to the respondent. The
court must also consider, in this regard, if there was any delay on the
respondent’s part and whether the respondent has availed itself of the
remedies which it might reasonably have been expected to do in order to bring
the action expeditiously to trial.

[19] That the respondent had taken a conscious decision not to actively
prosecute the action is common cause. The respondent has explained that at
the time of the seizure of the tankers and for some time thereafter the
conventional thinking had been that any breach of regulation 410.04.04(a)
promulgated under the Customs and Excise Act 91 of 1964 automatically
constituted a contravention of the Act, and could lead to a seizure of the
vehicles used in such contravention. The regulation provided, inter alia, that
any seller of fuel under rebate had to obtain a declaration from his purchasers
that they would use the rebated fuel in accordance with the regulations. This

approach to matters of this nature was altered by the judgment of this court in
the case of BP Southern Africa (Pty) Ltd v Secretary for Customs and Excise
& another 1985 (1) SA 725 (A) where it was held that a failure to obtain such
a declaration did not automatically disentitle the seller (or the purchaser, as the
case may be) to the rebate. It was only if the fuel was in fact not used for the
purposes of the regulations that a rebate could not be claimed. The effect of
the judgment in BP Southern Africa supra was that the respondent could no
longer rely solely on the failure to obtain the declaration as a cause for the
seizure of the tankers, but would have to go further and establish that the
persons to whom the appellant supplied diesel were not entitled to the rebate.
The main question which will arise in the action, should it be allowed to
proceed, is whether the appellant sold diesel under rebate to persons who were
not entitled thereto. This will entail an examination of approximately 180
transactions and would require the respondent to interview and take
statements from the many unidentified persons to whom the appellant sold
diesel. In view of these evidential difficulties, a decision was taken by the
respondent in 1985 ‘not to force the pace of the action’.

[20] To permit the appellant an opportunity to revive the action, whether in
an amended form or otherwise, would in my view be extremely prejudicial to
the respondent. A number of officials who were tasked with investigating the
matter are now deceased or cannot recall the events in question. The relevant
invoices which are necessary for the purpose of preparing for trial have been
mislaid, and to complicate matters further, the seized tankers are no longer
available for inspection. Counsel for the appellant also conceded that the
proposed amended claim is ill conceived and that a new notice of amendment
will have to be prepared.

[21] It was further argued on behalf of the appellant that any prejudice to the
respondent was of its own making and a consequence of its decision not to
force the pace of the action. I do not agree. Although the respondent’s
conduct is a factor that must be taken into account, its conduct cannot be
viewed in isolation from the appellant’s failure to expeditiously prosecute the
action. In this regard the following remarks of Diplock LJ in his separate
judgment in Allens supra (at 556g) are apposite:
‘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. For the reasons already mentioned, however,
mere non-activity on the part of the defendant where no procedural step on his part is
called for by the rules of court is not to be regarded as conduct capable of inducing the
plaintiff reasonably to believe that the defendant intends to exercise his right to proceed to
trial. It must be remembered, however, that the evils of delay are cumulative, and even
where there is active conduct by the defendant which would debar him from obtaining
dismissal of the action for excessive delay by the plaintiff anterior to that conduct, the
anterior delay will not be irrelevant if the plaintiff is subsequently guilty of further
unreasonable delay. The question will then be whether as a result of the whole of the
unnecessary delay on the part of the plaintiff since the issue of the writ, there is a
substantial risk that a fair trial of the issues in the litigation will not be possible.’

[22] Applying the approach postulated by Diplock LJ to the facts of the
instant case, the conclusion must inevitably be reached that it is the
appellant’s failure to expeditiously prosecute the action that is the primary
cause of the respondent’s prejudice. Should the appellant be given leave to
reinstate the action there is a substantial risk that a fair trial of the issues will
not be possible.

[23] The appellant has failed to demonstrate that the discretion exercised by
the court below – which is a discretion ‘in a strict sense’ was not judicially
exercised or was based upon a wrong principle of law or wrong facts. (See
Kini Bay Village Association v Nelson Mandela Metropolitan Municipality &
others 2009 (2) SA 166 (SCA) para 11 and cases there cited.) I am therefore
satisfied that the court below correctly exercised its inherent power to dismiss
the appellant’s action and that it also correctly dismissed the rule 30
application. Consequently the appeal cannot succeed. Though the respondent
asked for the costs of two counsel, I do not believe that such order is justified.

[24] The following order is therefore made:

The appeal is dismissed with costs.

__________________________

P BORUCHOWITZ

ACTING JUDGE OF APPEAL

Appearances:

For Appellant:

J A Julyan SC
Instructed by:
Gounder & Associates, Durban
Claude Reid Incorporated, Bloemfontein

For Respondent:              C J Pammenter SC (with him M Ngqanda)

Instructed by:
The State Attorney, Durban
The State Attorney, Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
APPEAL
1 June 2012

STATUS: Immediate

Mohammed Cassimjee v Minister of Finance (455/11)

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal (the SCA) today dismissed an appeal with costs from
the KwaZulu-Natal High Court, Durban.

The appellant, Cassimjee, operated a transport business and his tankers were
seized by officers of the Department of Customs and Excise in 1977. The reason for
this seizure was an allegation against the appellant for selling fuel under rebate to
people that did not qualify for rebate. The plaintiff issued summons in 1977 and the
exchange of pleadings carried on till 1981. From 1981 till 2001, there was no activity
in the case till a firm of attorneys pre-maturely placed the matter on the awaiting trial
roll. Again, nothing happened for five years until in 2006 when the appellant
attempted to amend its particulars of claim. Respondent opposed this amendment
with a defective notice that did not set out the grounds for the opposition. The
application before the high court was in terms of Rule 30 to set aside the objection
as an irregular proceeding. The respondent submitted a counter-application for a
dismissal of the main action.

At issue in the appeal was whether the high court had properly exercised its
discretion to dismiss the appellant’s claim for want of prosecution which depended
on the factual question whether the delay was so unreasonable or inordinate as to
constitute an abuse of the process of court. The SCA held that 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 listed the following recognised requirements
which includes delay in the prosecution of the action; the delay must be inexcusable
and, the defendant must be seriously prejudiced. The SCA stated that the enquiry
will involve a close and careful examination of all the relevant circumstances,

including, the period of the delay, the reasons and the prejudice, if any, caused to
the defendant.

In conducting the factual inquiry, the SCA identified two principal reasons advanced
by the appellant for the delay which includes problems in instructing attorneys in the
matter, and health problems suffered by the appellant. The SCA held however that
the appellant’s inactivity during the 20 year period from 1981 was not adequately
explained and was characterised by a profound absence of detail. The SCA also
considered whether the delay would cause prejudice to the respondent, if there was
any delay on the respondent’s part and whether the respondent availed itself of the
remedies which it might reasonably have been expected to do in order to bring the
action expeditiously. The SCA held that to permit the appellant an opportunity to
revive the action would be extremely prejudicial to the respondent since among
other facts, a number of officials who were tasked with investigating the matter were
deceased or could not recall the events in question. The SCA held that the
conclusion must inevitably be reached that it is the appellant’s failure to
expeditiously prosecute the action that is the primary cause of the respondent’s
prejudice and there was a substantial risk that a fair trial of the issues will not be
possible.

The SCA held that appellant had failed to demonstrate that the discretion exercised
by the court below which is a discretion ‘in a strict sense’ was not judicially exercised
or was based upon a wrong principle of law or wrong facts.

The SCA consequently dismissed the appeal with costs.

-- ends --