MAJIEDT J
[51]
Recently in Ascendis, this Court held:
“Abuse of process concerns are motivated by the need to protect ‘the integrity
of the adjudicative functions of courts’, doing so ensures that procedures
permitted by the rules of the Court are not used for a purpose extraneous to the
truth-seeking objective inherent to the judicial process.”52
[52]
In our common law a number of different categories of abuse have been
developed by which our courts ensure the integrity of their own process. There are
cases where there is gross abuse by the procedure employed by a litigant, to the extent
that the court, as a rare instance, will dismiss the claim, without any regard to the merits.
An example is Cassimjee.53 There, the appellant had appealed against the High Court’s
dismissal of his action for want of prosecution. The case emanated from a seizure by
customs and excise officials of two tankers owned by the appellant’s transport business
some 32 years before (in 1977). After the initial exchange of pleadings, about 20 years
elapsed during which no steps were taken by either party to advance the action. There
was a brief stir from the slumber in 2001 when a firm of attorneys placed themselves
on record for the appellant and gave notice purporting to place the matter on the
awaiting trial roll. But another four years went by and eventually, in 2006, the dismissal
application was brought by the Minister of Finance, which was granted in 2010. The
Supreme Court of Appeal confirmed the High Court’s dismissal, on the ground that the
delay in prosecuting the claim was inordinate and the prejudice to the defendant
(the Minister) was manifest. That Court held that the High Court correctly exercised its
discretion to dismiss the action, through its inherent power to prevent abuse of its
process. Self-evidently, abuse of process that impinges upon the court’s integrity is
quite distinct from abuse that is designed to cause harm to a party. Cassimjee is a typical
example of the former, where the abuse of court was held to have resulted in prejudice
to the defendant, the Minister.
52
Judgment of Khampepe J in Ascendis above n 18 at para 40.
53
Cassimjee v Minister of Finance [2012] ZASCA 101; 2014 (3) SA 198 (SCA).
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