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Can a civil action be dismissed for an inordinate delay in prosecuting the matter?
The concept of superannuation refers to when an action is dismissed as a result of an inordinate delay in prosecuting the matter. Superannuation is a remedy developed by the common law and unlike matters involving issues of prescription, the law does not dictate a fixed time period.
Prior to 2010, Magistrate Court Rule 10 read:
“…If summons in an action be not served within 12 months of the date of its issue or, having been served, the plaintiff has not within that time after service taken further steps in the prosecution of the action, the summons shall lapse.”
This provision has since been removed from the Rules. In Sanford v Haley NO, the Cape Division of the High Court pointed out that there are no specific Rules of Court or practices that provide that an action becomes superannuated because of the effluxion of time for want of prosecution.
In Cassimjee v Minister of Finance, the Supreme Court of Appeal held that an inordinate or unreasonable delay in prosecuting an action may constitute an abuse of process, which in turn may prejudice the administration of justice. South African courts have also held that claims of this nature may inhibit a court’s ability to fairly determine a matter, as the reliability of evidence may deteriorate with the passage of time. The SCA therefore held that dismissing superannuated claims is a reasonable and justifiable limitation of the right of access to courts in terms of section 34 of the Constitution.
The SCA went further and laid down the following requirements for a successful defence of superannuation:
- there should be a delay in the prosecution of an action;
- the delay must be inexcusable; and
- the defendant must be seriously prejudiced by the delay.
The Durban High Court, in Gopaul v Subbammah. provided guidance on how to establish the above requirements. In determining whether or not the delay is excusable, the court held that “[a]s a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable”. In determining whether the defendant is likely to suffer serious prejudice, it was held that “as a rule the longer the delay, the greater the likelihood of serious prejudice at a trial”.
Finally, the enquiry will involve a close and careful examination of all the relevant circumstances including, the period of the delay, the reasons for the delay and the prejudice, if any, caused to the defendant.
A plaintiff or applicant is therefore at risk of the claim being dismissed, if the action or application is not prosecuted within a reasonable period of time and what is reasonable will depend on the facts of each case.
Aslam Moosajee
Executive | Dispute Resolution
Vishana Mangalparsad
Associate | Dispute Resolution
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