Superannuation – a common law remedy

December 1st, 2019
Picture source: Gallo Images/Getty

Picture source: Gallo Images/Getty

Superannuation is the dismissal of a matter due to a delay in prosecuting the matter. It differs from prescription in that proceedings, which interrupt prescription, have indeed been instituted. The claim is dismissed not because summons has not been issued, but rather because of inordinate delay in prosecuting the matter after the issue of summons.

It is important to note that unlike prescription there is no fixed time period involved. This is so in a large part because prescription is governed by various statutes, whereas superannuation is a remedy developed by the common law. Furthermore, not only a delay, but also whether the delay is inexcusable and whether serious prejudice has been caused to the defendant, are relevant factors for a special plea of superannuation (Cassimjee v Minister of Finance 2014 (3) SA 198 (SCA)).

The source of dismissing a matter due to superannuation

Roman law made provision for the superannuation of civil proceedings three years after litis contestatio (Sanford v Haley NO 2004 (3) SA 296 (C) at para 7). This provision has not been adopted either in the Roman-Dutch law or in our common law. Rule 10 of the old Rules of Court provided that a claim could lapse if no steps were taken for more than 12 months after the issuing of summons. At this stage there are no specific Rules of Court or practice that provide that an action becomes superannuated because of effluxion of time for want of prosecution (Sanford at para 6).

In terms of s 173 of the Constitution, the High Court has the inherent power to protect and regulate its own process and to develop the common law, taking into account the interests of justice. This includes the right to prevent an abuse of its process, one of the High Court’s inherent powers. Abuse of process can come in the form of frivolous or vexatious litigation, but also in the form of inordinate delay.

Section 34 of the Constitution provides that: ‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’ How then should superannuation be viewed in the context of s 34?

The Constitutional Court (CC) has already resolved, in Beinash and Another v Ernst & Young and Others 1999 (2) SA 116 (CC), 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.

Claims that are instituted, but not prosecuted, can clog the court system and thus prejudice the administration of justice. Such claims also inhibit the court’s powers to decide a matter fairly, due to the inevitable unavailability or unreliability of evidence with the passage of time. ‘[T]he court’s task to discover and recognise the true facts is made more difficult and more inaccurate’ (see Molala v Minister of Law and Order and Another 1993 (1) SA 673 (W) at 677).

Dismissing superannuated claims is, therefore, required to ensure a fair hearing and protect the administration of justice. Dismissing superannuated claims is a reasonable and justifiable limitation of the right of access to courts in terms of s 34 of the Constitution (Cassimjee at paras 8 – 10).

Furthermore, and it has been considered by the CC in Road Accident Fund and Another v Mdeyide 2011 (1) BCLR 1 (CC), that prescriptive processes, which limit a litigant’s access to courts are not unconstitutional. Prescription, in particular, promotes legal certainty and protects the rights of litigants, specifically debtors.

Relevant legal principles

In Cassimjee, at para 11, the Supreme Court of Appeal (SCA) provided 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.
  • The defendant must be seriously prejudiced by the delay.

As to whether or not the delay is excusable, ‘[a]s a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable’ (see Gopaul v Subbamah 2002 (6) SA 551 (D) at 559, quoting Diplock LJ in Allen v Sir Alfred McAlpine & Sons Ltd; Bostik v Bermondsey and Southwark Group Hospital Management Committee; Sternberg and Another v Hammond and Another [1968] 1 All ER 543 (CA)). Further, as to whether serious prejudice has been caused to the defendant, as a rule the longer the delay the greater the likelihood of serious prejudice at a trial (Gopaul (op cit)).

Ultimately the inquiry will involve a close and careful examination of all the relevant circumstances on the basis of fairness to both parties (Cassimjee at para 11 and Sanford at para 9).

A court will also bear in mind 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 … to trial’ (Cassimjee at para 11).

What is reasonable – as far as the defendant’s inactivity is concerned – depends on all the circumstances. A defendant might be justified in believing that the plaintiff has lost interest and that it might be better to let the proverbial sleeping dogs lie. In the instance of a department or of state, the police, or an insurance company, handling a multiplicity of actions throughout the country at any given time, the failure to enforce procedural steps might be more excusable than in the instance of an ordinary member of public (Gopaul at 559).

It may also be that a defendant is responsible for the delay (Gopaul (op cit)), which ameliorates the plaintiff’s position. A court may also consider the merits of a claim, which could in principle play a role in informing whether the defence of superannuation should be upheld (Golden International Navigation SA v Zeba Maritime Co Ltd; Zeba Maritime Co Ltd v MV Visvliet 2008 (3) SA 10 (C) at para 27).

The influence of the passage of time on the availability of witnesses, the memory of witnesses, their ability to refresh their memories and the availability of real evidence (such as, for example, if a road is altered or where tankers, which gave rise to a claim, are not available for inspection) will play a strong role in determining the merits of the defence (Cassimjee at para 20, Molala at 678 and Sanford at para 17). This is all the more so in circumstances where witnesses are deceased or where many documents or a number of witnesses are involved, because it has the practical effect of increasing the chances of the unavailability of the required evidence and consequential prejudice (Ibid).

Whether a defendant has suffered financial prejudice because of the delay, which cannot be compensated for in terms of the proceedings, will also play a role in the inquiry. In Sanford, in order to found jurisdiction, the plaintiff attached an amount of approximately R 3 million in January 1989; when the case was heard during 2003, the defendant was seriously prejudiced by the fluctuation in foreign currency rates since the attachment of that money.

The test for superannuation is a stringent one and the relief will not easily be granted (Sanford at para 9); a court will exercise the power to dismiss a summons or an action on account of the delay for want of prosecution sparingly and only in exceptional circumstances.

Superannuation manifested in case law

In Molala the court upheld the special plea where a delay of more than four years was encountered after the delivery of further particulars. Various police officers could have been in the area of the incident and the difficulty of the defendant to establish which police officers were in the area, after a long period of time, played a substantial role in the court upholding the special plea.

In Gopaul the special plea was dismissed where two periods of delay were encountered; a first period of four years and a second period of five years. The defendant failed to file her plea during the first period of delay and the court held it hardly becomes her to complain of dilatoriness on the plaintiff’s behalf. In the second period the defendant disappeared and the plaintiff averred that he could not set the matter down. In response the defendant stated that the plaintiff could have made use of substituted service. Although the court agreed with the defendant, it also found that the defendant herself had been guilty of dilatoriness. Ultimately the court dismissed the special plea as no real prejudice was proved and the defendant was in some degree to blame for the state of affairs.

In Sanford, a provisional sentence matter, the deceased deposed to an answering affidavit and the plaintiff did not file a replying affidavit or set the matter down for hearing. Nothing happened for approximately four years after the filing of the answering affidavit, when there was a flurry of activity and, thereafter, the matter again went dormant, this time for six years. The deceased then passed away, and was substituted by his executor, whereafter the plaintiff resuscitated the matter. The court upheld the special plea and found that the extraordinary delay in prosecuting the action for provisional sentence was not only self-defeating, but also destroyed the very basis of these proceedings, which were meant to be extraordinary proceedings for a speedy remedy.

Golden International Navigation SA involved proceedings under the Admiralty Rules. The plaintiff did not set the matter down for a period of five years after the filing of the plea. The court upheld the special plea and took into consideration the perceived lack of merits in the claim, the lack of a credible explanation for the inactivity and the inordinate delay.

In Cassimjee an astonishing 32 years passed between the date of the institution of the action and the delivery of judgment, including which a period of 20 years in which no steps were taken by either party to advance the action. The court upheld the special plea, finding that the plaintiff’s failure to expeditiously prosecute the matter is the primary cause of the defendant’s prejudice. The court found that there was a substantial risk that a fair trial of the issues would not be possible if the special plea was not upheld.


Our roles as officers of the court in a broad sense is not only to defend the interests of our litigating clients, but also to assist the court to come to a fair conclusion, while at the same time advancing the Constitution. That role is severely hampered in circumstances where our forensic ability is prejudiced by the insouciance of a litigating party, in failing to prosecute a case.

Defendants may believe that it is convenient to let the plaintiff’s sleeping dogs lie. However, they do so at the ultimate peril of evidence becoming unavailable.

It is accordingly not only to the prejudice of a defendant, that matters be delayed, but also to the prejudice of the court. It is in the interests of justice that all parties be given an opportunity to have a fair hearing.

It is, furthermore, in line with s 34 of the Constitution, that abusive proceedings be disposed of, (delayed litigation constituting an abuse of process). Superannuation as a defence to delayed litigation is not only a reasonable and justifiable limitation of a litigant’s s 34 rights, but also a remedy to enforce a fair trial.

Marius van Staden BIuris LLB LLM (UP) is a legal practitioner and Stephen Leinberger BSc (UP) LLB (Unisa) is a legal practitioner at Savage Jooste & Adams Inc in Pretoria.

This article was first published in De Rebus in 2019 (Dec) DR 20.

De Rebus