Section 34 of the Constitution provides that everyone has the right to have any dispute that the application of law can resolve, decided in a fair and public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

What happens if the party that sues fails to take steps to prosecute their matter within a reasonable time?

Section 173 of the Constitution gives the High Court the power to act in the interests of justice and prevent the abuse of its process in the form of frivolous or vexatious litigation and inordinate delay.

Superannuation applies when a court dismisses a civil action or action due to an inordinate delay in prosecuting the matter.

Typically, a party would bring an application seeking a declaratory order to dismiss the opponent’s matter because the relief they sought had superannuated. Alternatively, the prejudiced party might file a special plea to that effect.

In Cassimjee v Minister of Finance, the Supreme Court of Appeal held that an excessive or unreasonable delay in prosecuting an action might constitute an abuse of process, which may prejudice the administration of justice. To succeed in a successful defence of superannuation, the court stated that:

•          There should be a delay in the prosecution of an action.

•          The delay must be inexcusable.

•          The defendant must be seriously prejudiced by the delay.

In Gopaul v Subbammah, the court held that “[a]s a rule until a credible excuse is made out, the natural inference would be that it is inexcusable” and “as a rule the longer the delay, the greater the likelihood of serious prejudice at a trial”.

The facts of each case will determine the period of the delay, the reasons for the delay and the prejudice, if any, caused to the defendant. There must be a basis of fairness for both parties.

The courts will consider such factors as whether a defendant has suffered financial prejudice because of the delay. The case law makes it clear that a court will exercise its power to dismiss a summons or an action on account of the delay for want of prosecution sparingly and only in exceptional circumstances.

For a more detailed explanation, see this article in de Rebus.