The High Court has an inherent power to dismiss an action on account of a delay in its prosecution by the plaintiff. This power is exercised sparingly and only in exceptional circumstances, as it seriously impacts the plaintiff's constitutional and common-law right to have a disputed adjudicated in court by means of a fair trial.
In a dismissal application, the key consideration is whether the case before the court is one of the rare instances in which the court should exercise its inherent power to dismiss a claim without a trial. This issue was recently considered in Primall Media (Pty) Ltd v iPoint Marketing CC and Others (7236/2013) [2026] ZAGPJHC 276.
The dispute arose from a Licensing and Service Agreement concluded in 2008, under which Primall utilised iPoint's software and devices for digital advertising installations in shopping malls. The agreement expired in May 2013, by which time disputes had arisen between the parties. Primall initiated action in 2013, following which iPoint delivered its plea and counterclaim on 3 February 2024. Primall subsequently sought the dismissal of the counterclaim for want of prosecution. Its position was that, once the agreement expired in May 2013, the main claim became moot, leaving iPoint as the dominus litis relating to the only remaining live dispute between the parties, being the counterclaim.
The court reiterated the requirements for dismissal, namely an inexcusable delay that results in prejudice to the other party. The court acknowledged that there had undoubtedly been a significant delay. The counterclaim had existed since 2014, yet, 12 years later, it had still not been heard. It had also undergone repeated amendments, increasing significantly in scope and quantum. iPoint's explanation for the various periods of delay were not satisfactory.
That said, the matter could not fairly be characterised as one in which nothing happened for years on end. A detailed chronology of procedural steps showed ongoing procedural and engagement activity over much of the life of the matter. The picture that emerged was not one of complete abandonment, but rather one of slow, uneven and often unsatisfactory litigation, punctuated by periods of delay, procedural wrangling and attempts at commercial resolution. While settlement or mediation discussions do not relieve a claimant of the duty to prosecute its case, they remain part of the factual matrix to be considered in assessing whether there had been inexcusable delay.
Another aspect to consider was that Primall had not taken steps to drive the matter to trial once pleadings had closed. While this did not shift the responsibility to Primall, it reinforced that the history of the matter was more complex than a simple case in which one party does nothing while the other waits helplessly for years.
Primall's case rested on prejudice, arising from the fact that the business relevant to the dispute had been sold in 2018. The devices forming the subject matter of the dispute were also no longer available, key witnesses had either left or were unwilling to assist, or no longer had reliable recollection, with the consequence that the counterclaim could no longer be met fairly at trial. The court acknowledged the seriousness of the concerns raised by Primall.
However, Primall's difficulty was that it sought the dismissal of the entire counterclaim. On the basis before the court, the prejudice shown did not establish that every component of the counterclaim was incapable of fair adjudication. While faded recollection, unavailable devices and changes in personnel may create real prejudice, this does not automatically justify dismissal. The question is whether the prejudice is so profound that a fair trial is no longer possible. In this matter, that threshold had not been met. Accordingly, the application for dismissal could not succeed.
This case is of particular relevance to insurers, who are often required to raise substantial reserves to meet contingent liabilities in claims that are not always pursued vigorously by claimants. As the judgment above demonstrates, there may be scope, in appropriate circumstances, to apply for the dismissal of such claims where the delays are inexcusable and have resulted in prejudice.
