Cassimjee v Minister of Finance (455-11)  ZASCA 101 (1 June 2012)
06 June 2012
Posted by: SAIT Technical
During 1977 the Department of Customs and Excise seized fuel tankers from the appellant, Cassimjee, based on the allegation that the appellant was selling fuel under rebate to people who did not qualify for the rebate.
During 1977 the plaintiff issued summons and an exchange of pleadings carried on until 1981, after which the matter was inactive until 2001.The matter was then pre-maturely placed on the awaiting trial roll but was once again inactive for a period of 5 years. During 2006 the appellant attempted to amend its particulars of claim which was opposed by the respondent but the notice of opposition was defective as it did not set out the grounds of opposition. The application before the high court was to set aside the objection as an ‘irregular procedure’ in terms of rule 30.
Has the high court properly exercised its discretion to dismiss the appellants claim for want of prosecution on the basis that time delay was so unreasonable that it constitutes an abuse of the process of court?
After conducting a factual inquiry, the court found that there were two principal mitigating factors to consider in so far as the delay in time is concerned, health problems and problems in instructing attorneys.
The SCA found that the explanations provided by the appellant lacked substance as it was characterised by a profound absence of detail. To revive the action would be extremely prejudicial to the respondents as many of the officials tasked with investigating the matter were deceased or could not recall the events.
The SCA dismissed the appeal with costs.