Cassimjee v Minister of Finance

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 African Revenue Service claiming the return of the tankers or their value, plus damages for loss of use. The Commissioner delivered a plea and counterclaim on 2 May 1979 for payment of duty in respect of diesel oil supplied to unidentified persons. After the delivery of particulars in July 1980, no further steps were taken by either party for approximately 20 years. In 2001, new attorneys attempted to place the matter on the trial roll, but without a plea to the counterclaim, this was premature. Another four years elapsed before new attorneys filed a notice to amend in August 2006. The Commissioner then brought an application to dismiss the action for want of prosecution on grounds of inordinate delay and prejudice. Over 32 years had passed between the institution of the action and the judgment appealed against.

• Whether the high court properly exercised its inherent power to dismiss an action for want of prosecution
• Whether there was inordinate and inexcusable delay in prosecuting the action
• Whether the respondent suffered serious prejudice as a result of the delay
• Whether the respondent's own inactivity disentitled it to relief
• Whether the delay constituted an abuse of the court's process

The appeal was dismissed with costs. The order of the KwaZulu-Natal High Court dismissing the action for want of prosecution was upheld. The appellant was ordered to pay the costs of the appeal, but the respondent's request for costs of two counsel was refused.

A court has inherent power, both at common law and under s 173 of the Constitution, to dismiss an action for want of prosecution where there is inordinate delay that constitutes an abuse of the court's process. For dismissal to be justified, three requirements must be met: (1) there must be delay in prosecuting the action; (2) the delay must be inexcusable; and (3) the defendant must be seriously prejudiced thereby. The inquiry involves examination of all relevant circumstances including the period of delay, reasons for it, prejudice to the defendant, and the defendant's own conduct. While a defendant's inactivity is a relevant factor, it must be viewed in context of the plaintiff's overall failure to prosecute. The cumulative effect of unnecessary delay is determinative - if the delay creates a substantial risk that a fair trial will not be possible due to loss of evidence, witnesses, or documents, dismissal is warranted. The constitutional right of access to courts under s 34 may be justifiably limited to prevent abuse of process and protect the administration of justice.

The court observed that it would be 'highly undesirable and indeed impossible to attempt to lay down a tariff' for what constitutes inordinate delay, as this must depend on the facts of each case. The court noted that the appellant's proposed amended claim was 'ill conceived' and that a new notice of amendment would have to be prepared if the action were to proceed. The judgment also commented on the evolution of the law regarding customs and excise seizures, noting that the decision in BP Southern Africa (Pty) Ltd v Secretary for Customs and Excise (1985) had changed the legal landscape by holding that failure to obtain a declaration did not automatically disentitle parties to a rebate - actual misuse had to be proven. This legal development was cited as a reason why the respondent chose 'not to force the pace of the action' after 1985.

This case is significant in South African civil procedure law as it clarifies and applies the principles governing dismissal of actions for want of prosecution. It confirms that South African courts have inherent power (both at common law and under s 173 of the Constitution) to dismiss actions where inordinate delay constitutes an abuse of process. The judgment provides guidance on balancing the constitutional right of access to courts (s 34) against the need to protect the administration of justice and prevent abuse of court processes. It demonstrates that while both parties' conduct is relevant, a plaintiff's failure to prosecute remains the primary consideration. The case also illustrates how evidential prejudice arising from delay (loss of witnesses, documents, and physical evidence) can make a fair trial impossible, justifying dismissal of an action even after decades. The judgment endorses the English approach in Allen v Sir Alfred McAlpine regarding the cumulative effect of delay and the three-stage test for dismissal.