Dismissing an action for want of prosecution

December 1st, 2012

By Fareed Moosa

An inordinate or unreasonable delay in prosecuting any action may constitute an abuse of court process that, in certain narrowly defined circumstances, may justify dismissal of the action (see Verkouteren v Savage 1918 AD 143 at 144; Gopaul v Subbamah 2002 (6) SA 551 (D) at 558; Sanford v Haley NO 2004 (3) SA 296 (C) at para 8; Golden International Navigation SA v Zeba Maritime Co Ltd 2008 (3) SA 10 (C); and Zakade v Government of the RSA [2010] JOL 25868 (ECB)).

In Cassimjee v Minister of Finance (SCA) (unreported case no 455/11, 1-6-2012) (Boruchowitz AJA) the court held (at para 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 inquiry 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.’

Former magistrates’ courts r 27(5) enabled a defendant to apply to the court out of which an action was instituted to dismiss the action on the grounds of the plaintiff’s failure to prosecute by not taking steps to set the case down for trial. The court adjudicating any such application was empowered to ‘either dismiss the action with costs or make such other order in regard thereto’. In this way, the court could prevent an abuse of its process. The new magistrates’ courts rules (the rules), which came into effect on 15 October 2010, do not, however, re-enact the former r 27(5).

The purpose of this article is to consider whether r 60(3) of the rules provides a legal basis on which lower courts may grant an order dismissing an action for want of prosecution. In doing so, it will consider other possible remedies that may be available to a defendant who wishes to overcome an abuse of court process by a recalcitrant or uninterested plaintiff.

Limited power

The lower courts lack any inherent (common law) jurisdiction (see Hatfield Town Management Board v Mynfred Poultry Farm (Pvt) Ltd 1963 (1) SA 737 (SR) at 739). Section 170 of the Constitution limits the jurisdiction of such courts to matters determined by an Act of parliament. Thus they are aptly described as creatures of the Magistrates’ Courts Act 32 of 1944 (MCA). Section 12 thereof provides that magistrates ‘shall possess the powers and perform the duties conferred or imposed upon magistrates by any law …’. In this context, the term ‘law’ means ‘any law, proclamation, ordinance, Act of parliament or other enactment having the force of law’ (see s 2 of the Interpretation Act 33 of 1957).

Consequently, magistrates possess those judicial powers and duties embodied in the rules because they are subordinate legislation having the force of law under s 171 of the Constitution. By virtue of the exclusion of any reference to the lower courts in s 173 of the Constitution, magistrates lack any inherent power to regulate their own court process and prevent any abuse thereof. Therefore, the source of any such power must be legislation.

High Courts, on the other hand, possesses such power both at common law and in terms of s 173 of the Constitution (see the Cassimjee case at para 8).

In light of this, magistrates are only vested with such authority expressly granted to them by ‘any law’ (as defined above) and also such ancillary powers that may be implied in any express authority in order to avoid a miscarriage of justice (see Ndamase v Functions 4 All 2004 (5) SA 602 (SCA) at 605F – 606B and Narodien v Andrews 2002 (3) SA 500 (C) at 514E – F).

Interpretation of the rules

For present purposes, the relevant provisions of r 60 provide:

‘(1) Except where otherwise provided in these rules, failure to comply with these rules or with any request made in pursuance thereof shall not be ground for the giving of judgment against the party in default.

(2) Where any provision of these rules or any request made in pursuance of any such provision has not been fully complied with, the court may on application order compliance therewith within a stated time.

(3) Where any order made under subrule (2) is not fully complied with within the time so stated, the court may on application give judgment in the action against the party so in default or may adjourn the application and grant an extension of time for compliance with the order on such terms as to costs and otherwise as may be just.

(4) The court may on an application under subrule (2) or (3) order such stay of proceedings as may be necessary.’

The provisions of r 60(3) are to be construed in accordance with the general principles of statutory interpretation (see Manyasha v Minister of Law and Order 1999 (2) SA 179 (SCA) at 185A – C and Epol (Edms) Bpk v Landdros, Vryburg 1987 (1) SA 821 (NC) at 825C). To this end, contrary to the approach adopted in CSARS v Executor, Frith’s Estate 2001 (2) SA 261 (SCA) at 273, I submit that the starting point in this process is not a determination of the intention of the lawgiver emanating from the language employed in r 60(3), but rather the Constitution itself. This accords with the approach enunciated by Ngcobo J (as he then was) in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (7) BCLR 687 (CC) at para 72, in which it was held:

‘The Constitution is now the supreme law in our country. It is therefore the starting point in interpreting any legislation. Indeed, every court “must promote the spirit, purport and objects of the Bill of Rights” when interpreting any legislation. That is the command of section 39(2). Implicit in this command are two propositions: First, the interpretation that is placed upon a statute must, where possible, be one that would advance at least an identifiable value enshrined in the Bill of Rights; and second, the statute must be reasonably capable of such interpretation. This flows from the fact that the Bill of Rights “is a cornerstone of [our constitutional] democracy.” It “affirms the democratic values of human dignity, equality and freedom”’ (footnotes omitted).

In D F Scott (EP) (Pty) Ltd v Golden Valley Supermarket 2002 (6) SA 297 (SCA) it was held, at 301G, that court rules are designed to ensure a fair hearing and should thus be construed in such a manner as to advance, and not reduce, the scope of the right to a fair trial entrenched in the Bill of Rights (s 34 of the Constitution. See also Metcash Trading Ltd v Commissioner, SARS 2001 (1) SA 1109 (CC)). This constitutionally entrenched value is echoed in r 1 of the rules:

‘(1) The purpose of these rules is to promote access to the courts and to ensure that the right to have disputes that can be resolved by the application of law by a fair public hearing before a court is given effect to.

(2) These rules are to be applied so as to facilitate the expeditious handling of disputes and the minimisation of costs involved.’

Justifiable limitation

The right of access to courts is not absolute (see Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (CC). It is subject to reasonable and justifiable limitations. Accordingly, in Beinash and Another v Ernst & Young and Others 1999 (2) SA 116 (CC)), it was held that restricting access to vexatious litigants serves an indispensable purpose designed to secure the rights of those litigants who have meritorious disputes and, further, is a necessary step to protect bona fide litigants, the processes of the courts and the administration of justice.

By a parity of reasoning, Boruchowitz AJA in the Cassimjee case held (at paras 22 – 23) that the plaintiff’s failure to prosecute his claim for more than 20 years, during which time the case lay dormant, was so unreasonable or inordinate that it constituted an abuse of the court’s process. It was held that, in the circumstances of the case, this delay was inexcusable and caused substantial prejudice to the defendant, which warranted a dismissal of the action.

In light of these principles, I submit that a construction of r 60(3) to the effect that it permits a magistrate to dismiss, in appropriate circumstances, an action for want of prosecution will not per se be unconstitutional. It will constitute a justifiable limitation of a plaintiff’s s 34 constitutional right of access to the courts.

Discretion to dismiss

The second leg of the inquiry is to consider the language used in r 60(3). It expressly confers on a magistrate the discretionary power to ‘give judgment in the action against the party so in default’. For purposes of the rules, ‘judgment’ is defined in s 1 of the MCA to mean ‘in civil cases, includes a decree, a rule and an order’ (see r 2). ‘Judgment’ in this context includes an order dismissing a plaintiff’s action where a court is satisfied that there is no intention to proceed with the action (see DE van Loggerenberg Jones & Buckle: The Civil Practice of the Magistrates’ Courts in South Africa 10ed (Cape Town: Juta 2011) vol II: The Rules at rule 60-3 (footnote 5)). An intention not to proceed may reasonably be inferred from a plaintiff’s failure to comply with its obligations under r 22(1), particularly where there is an inordinate or unreasonable delay in doing so despite repeated demands to comply or a court order to this effect.

I submit that in such circumstances it shall be competent for a magistrate to grant an order under r 60(3) dismissing the action for want of prosecution. Owing to the drastic effects flowing from the exercise of this discretion, I further submit that a lower court ought to do so only in exceptional circumstances after a defendant has complied with all applicable procedural requirements in r 60 and, in addition, provided that the legal requirements set out in the Cassimjee case (at para 11) are satisfied.


In the event that my view is incorrect, or as an alternative to the abovementioned remedy available to a defendant, I submit that other remedies are also available in circumstances where a plaintiff fails to prosecute an action:

  • Firstly, under r 22(1), a defendant may set an action down for trial in the event that a plaintiff fails to do so within 15 days after the close of pleadings as defined in r 21A. In such event, if a plaintiff fails to appear at the time appointed for the trial, the court may, under r 32, dismiss the action with costs.
  • Secondly, a defendant may, under r 60(4), apply to court for an order staying the proceedings.
  • Thirdly, pending the proceedings in the lower court, an application may be brought to the High Court for appropriate relief (see Solomon v Magistrate, Pretoria, and Another 1950 (3) SA 603 (T)).

Fareed Moosa BProc LLB (UWC) LLM (Tax) (UCT) is a lecturer in the department of mercantile law at the University of the Western Cape.

This article was first published in De Rebus in 2012 (Dec) DR 30.