Court name
High Court
Case number
382 of 2001

Nghipandulwa v Van Wyk (382 of 2001) [2012] NAHC 207 (27 July 2012);

Media neutral citation
[2012] NAHC 207
Kauta AJ

CASE NO: (T) A217/2004



NO.: I 382/2001


the matter between:





ON: 3RD JULY 2012

JULY 2012



[1] This is a special
plea to dismiss an action for want of prosecution.

On the 1st of May 1999 the Defendant borrowed the
Plaintiff’s Volkswagen Citi Deco 1.6 motor vehicle. The
Plaintiff alleged that without any permission the Defendant drove the
vehicle to Otjiwarongo where it was damaged in a collision. As a
result of the collision the Plaintiff issued summons in this court on
5th November 1999 and served it on the Defendant on the
25th of January 2000 in which the Plaintiff claimed
payment in the sum of N$30 525.00 and interest thereon at the rate of
20% a tempore morae.

Ten months after the service of the summons on the Defendant, the
Plaintiff wished to amend his particulars of claim on the 6th of
November 2000 and consequently served a notice to that effect on the
Defendant on the 9th of November 2000. In due course the
amended particulars of claim were served on the Defendant two (2)
months later on the 18th of January 2001. A further two
(2) months elapsed before the Defendant defended the action on the
30th of March 2001.

It appears that default judgment was requested by the Plaintiff on
the 23rd of April 2001. Nothing came of this request for
default judgment because the matter was defended. By the 24th
of April 2001 the Defendant filed his plea to the Plaintiff’s

Over five (5) and a half years passed between the date of the
institution of the action and the withdrawal of the erstwhile legal
practitioners of the Plaintiff on the 9th of August 2006.
Armed with new legal practitioners the Plaintiff invited the
Defendant to a Rule 37 conference on the same date. After the
Defendant’s Legal Practitioners received the invitation they
withdrew as legal practitioners of record on the 14th of
September 2006, consequently the Plaintiff was forced to invite the
Defendant personally to the Rule 37 conference. This the Plaintiff
did on the 26th of November 2006, some two (2) months

It is common cause that the Rule 37 conference never took place
between the parties. One (1) year and three (3) months after the last
pleading in this matter Plaintiff applied for a trial date on the
continuous civil roll, on the 7th of February 2008. The
Plaintiff invited the Defendant to appear at the High Court on the
20th of February 2008 in order to obtain a trial date. It
is common cause that the Registrar did not allocate a date for
hearing to this matter. Five (5) months later on the 24th
of July 2008 the Plaintiff served an application on the Defendant in
which he sought leave to obtain a trial date from the Registrar. The
application was set down for hearing on the 15th of August
2008. My brother Muller J, after hearing the application, granted
leave to the Plaintiff to obtain a trial date from the Registrar with
costs. On the 5th of September 2008 the Plaintiff invited
the Defendant to attend to the offices of the Registrar on the 15th
of October 2008 to obtain a trial date in this matter. It appears
that a date for hearing was allocated and served on the 18th
of October 2008 on the Defendant. The matter was to be heard the next
year, on the 17th of March 2009.

Before the hearing of the matter the Plaintiff served the paginated
index of the pleadings on the Defendant on
the 8th November 2008. The legal practitioners of the
Plaintiff however withdrew on the 26th of January 2009
before the hearing of the matter. The record is silent as to what
happened on the 17th of March 2009. Two (2) years and nine
(9) months later the Plaintiff engaged his current legal
practitioners who duly filed a notice of representation. At this
stage the rules of the High Court were already amended to provide for
Case Management and the docket in this matter was allocated to my
brother Unengu AJ, who invited the parties to an Initial Judicial
Case Management Conference on the 11th of April 2012. At
this Case Management Conference Plaintiff was represented by Mr
Nekongo and the Defendant in person. They were ordered to file a Case
Management Report forthwith and comply with the provisions of Rule
37(16). Consequently the matter was postponed to 23rd of
May 2012. The Defendant instructed his current legal practitioners of
record and they served a notice of representation a day before the
hearing of this matter on the 22nd of May 2012. The matter
came before my brother Damaseb JP, and he postponed it to the 20th
of June 2012.

On the 19th of June 2012 the parties served a joint case
management report on the court. After hearing the parties on the 20th
of June 2012 Damaseb JP made an order in the following terms:

  1. The
    Defendant must file the special plea not later than 22 June 2012.

  1. The
    Plaintiff must replicate thereto no later than 27 June 2012.

  1. The
    matter is postponed to 03 July 2012 at 09:00 for arguments on
    the special plea on the Interlocutory roll of Kauta, AJ.

  1. Both
    parties are directed to simultaneously file their Heads of Arguments
    three (3) days prior to the date of hearing of the special plea.

  2. Any
    failure to comply with the obligations imposed on the parties by
    this order will entitle the other to seek sanctions as contemplated
    in rule 37(16)(e)(i)-(iv).

  1. A
    failure to comply with any of the above directions will ipso facto
    make the party in default liable for sanction at the instance of the
    other party or the court acting on its own motion unless it seeks
    condonation therefore not less than 10
    court days before the next scheduled hearing, by notice to the
    opposing party.

On the 22nd June 2012 the Defendant amended his plea, and
pleaded that the summons became stale and the proceedings stand to be
set aside with costs. The plea is silent as to
what is meant by stale, but
it appears the Plaintiff knew fully well what that term meant because
he did not enquire. When the matter came before me Mr Nekongo
appeared for the Plaintiff and Mr Denk for the Defendant.

Mr Denk argued that the important date in this matter is the 24th
of April 2001, which is the date on which the Defendant pleaded to
the merits. He argued further that the Plaintiff’s notice of
the 9th of August 2006 was delivered five (5) years after
this date. In his opinion the Plaintiff did not enforce his rights by
bringing an application to compel the Defendant to attend the Rule 37
conferences. In any event so the argument goes, another year and six
(6) months elapsed between the time the application for a trial date
was made and when the matter was eventually set down for hearing. The
final submission on behalf of the Defendant is that the Plaintiff’s
summons is stale and that the proceedings must be set aside.

Mr Nekongo argued that the lengthy periods of time between the
pleadings were caused by the Defendant’s refusal and/or
unwillingness to expedite the prosecution of this matter. He further
argues that the summons is therefore not stale.

The dismissal of the Plaintiff’s action is essentially sought
on the ground that it had been dormant since the 24th of
April 2001 and that to permit its continuance will give rise to
irremediable prejudice amounting to an abuse of the process of the
court. The High Court has the inherent power, both at common law and
in terms of the Constitution (Article12), to regulate its own
process. This included 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
and another
1979 (3) SA 1331 (W) at 1338F-G; Beinash and
another v Ernst & Young & others
1999 (2) SA 116 (CC)
paras 10 and 17). Article 12(1) of the Constitution provides that:
“In the determination of their civil rights and obligations….,
all persons shall be entitled to a fair and public hearing by an
independent, impartial and competent Court”. This right is not
absolute and is subject to reasonable and justifiable limitations,
especially where the litigation process is vexatious or amounts to an
abuse of process. See Beinash (supra para 17).

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
1918 AD 143 at
Schoeman & andere
v Van Tonder
1979 (1) SA
301 (O) at 305C-E;
& others v Benson
(1) SA 474 (W) at 476H-477B;
v Minister of Law and Order
(1) SA 673 (W) at 676B-679I;
& others v Boland Bank Limited & others
(4) SA 603 (D) at 608C-E;
v Haley NO
2004 (3) SA
296 (C) para 8;
Gopaul v
2002 (6) SA 551
(D) at 558F-J;
International Navigation SA v Zeba Maritime Co Ltd
(3) SA10 (C);
Zakade v
Government of the RSA
JOL 25868 (ECB).

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 recognized.
First, there should be a delay in the prosecution of the
action;secondly, the delay must be inexcusable and, thirdly, 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.

An approach that commends itself is that postulated by Salmon LJ in
the English case of
v Sir Alfred McAlpine & Sons Limited
Bostic v Bermondsey &
Southwark Group Hospital Management Committee. Sternberg &
another v Hammond & another
1 All ER 543 (CA), where the following was stated at 561e-h:

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 recognize 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.’

The manner in which this matter was argued before me is most
unfortunate. The parties decided to argue the facts underpinning
their respective positions from the bar. Such facts are not supported
by any affidavits. I enquired from both counsels what weight, if any,
I should give to such facts. Counsels were both ad idem that
there were no other facts to put before me and deemed it unnecessary
to call witnesses. I am compelled to dispose of this matter on the
facts presented from the bar. The Plaintiff was unable to explain the
delay of more than five (5) years in paragraph 5 above. The only
explanation proffered relates solely to the unwillingness of the
Defendant to move the pace of the process. I shall now turn to the
respective contentions.

It was argued on behalf of the Plaintiff that any prejudice to the
Defendant 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
Defendant’s conduct is a factor that must be taken into
account, its conduct cannot be viewed in isolation from the
Plaintiff’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

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.’

In Molala v Minister of Law and Order and another 1993 (1) SA
673 (W) Fleming DJP made an exhaustive analysis of the authorities
applicable in the current context and held at 676D-I:

it has been accepted in various Divisions that there is a discretion
to refuse altogether to grant judgment. But there is not always
certainty about the basis of the discretion and therefore about the
facts which should guide the exercise of the discretion. In the Cape,
in Rowsell v De Stadler (1895) 12 SC 399, in deciding that the
defendant was entitled to an order barring the appeal, the Court may
have been guided by the fact that the defendant was justified after
such a long delay in inferring that the intention to prosecute the
appeal had been abandoned. In Hunt v Engers 1921 CPD 754, despite the
argument that there was no Rule about superannuation, it was regarded
as unreasonable to have allowed such a period of time to elapse since
the issue of the summons. In Schoeman en Andere v Van Tonder 1979 (1)
SA 301 (O) abandonment was not proved and, finding it unnecessary to
decide whether the Court's inherent jurisdiction or something else
was the basis, the Court was apparently swayed by the reasonableness
or not of the time which the plaintiff allowed to elapse.
Reasonableness would then be influenced, inter alia, by the reasons
for a plaintiff's delay - an issue on which the present plaintiff is
completely silent. It is not clear from Barber v Barber 1932 NPD 751
whether, in referring to the possibility that a Court would or would
not 'allow a plaintiff to continue' with an action, the Court had in
mind to accept that a discretion exists. What I know of the Eastern
Cape is only what is reflected in Stoltz v Ho Kee 1975 (1) SA 100
(E). The reference at 104G, while dealing with a different issue, to
three decisions which are not harmonious on the point now under
consideration shows that for the purposes of that case no closer
analysis was necessary. In the Transvaal it was, despite doubts
earlier in the year, accepted in Bernstein v Bernstein 1948 (2) SA
205 (W) that 'it is in the discretion of the Court to allow
proceedings to continue where there has been this lapse of time”.

I am not surprised about the stance taken by Mr Nekongo because the
Plaintiff changed legal firms without any real progress being made.
And he became involved in this matter only in January 2012. The lack
of explanation for a period of five (5) years as from the Defendant’s
plea to the 9
of August 2006 when the Plaintiff
awoke from his slumber is fatal. I agree with Mr Denk that
set at this
stage. Mr Denk further, criticized the
inactivity and premised his argument that the Defendant is prejudiced
on this score. The trial prejudice contended for by the Defendant is
that damages to the motor vehicle, if any, can no longer be
ascertained because the vehicle is no longer available for
inspection. As a result the Defendant will be unable to engage an
expert to dispute damages. In my view because of the five years that
elapsed after the setting of
the inference
is irresistible that the Plaintiff decided for some unexplained
reason not to proceed with the action or to advance it expeditiously.

[19] Applying the
approach postulated by Diplock LJ to the facts of the instant case,
the conclusion must inevitably be reached that it is the Plaintiff’s
failure to expeditiously prosecute the action that is the primary
cause of the Defendant’s prejudice.

In these circumstances I am of the opinion that it will be wrong for
the court to allow the action to continue and I exercise my
discretion in the Defendant’s favour. The present summons is
stale and
continuance thereon constitutes an abuse of process. In the result I
make the following order:

1. The Defendant’s
special plea succeeds with costs.