The price of inaction: Discovery Life Limited v Karanie

The litigation history in Karanie is striking for how little was achieved over an inordinately prolonged period. The plaintiff instituted action in December 2012 arising from a disputed life insurance claim. Pleadings eventually closed, discovery was made, and the matter was enrolled for trial in May 2015. The trial did not proceed after the plaintiff’s attorneys withdrew shortly before the hearing, resulting in a postponement and a costs order against the plaintiff. Critically, those costs were taxed in May 2016 and never paid.

On 13 July 2023, more than seven years from taxation of the costs, a court order was granted staying the proceedings pending the plaintiff’s payment of the taxed costs. Subsequent to this order and over a decade from the institution of these proceedings, Discovery Life applied for the dismissal of the claim on the basis of inordinate and inexcusable delay.

The court approached the matter with close reference to the framework of Cassimjee v Minister of Finance¹ , which requires a holistic assessment of the length of the delay, the adequacy of the explanation, the prejudice to the defendant, and all surrounding circumstances. Windell J emphasised that none of these factors is decisive in isolation.

Central to the judgment is the court’s rejection of the plaintiff’s attempt to characterise himself as a victim of circumstance. The plaintiff advanced several explanations for the delay, including disputes about medical evidence, alleged failures by successive attorneys, and difficulties in settling the outstanding costs order. The court was unpersuaded. Far from explaining the delay, these factors demonstrated sustained and consistent failures on the part of the plaintiff to diligently prosecute the claim.

Windell J made it clear that litigants cannot abdicate responsibility for their matters. The plaintiff had changed attorneys multiple times, remained unrepresented for extended periods, and failed to take decisive action even when represented. In respect of the plaintiff’s feeble attempt at explaining the delay, Windell J stated that:

“[36] These facts do not support the plaintiff’s contention that the delay was occasioned by his legal representatives. They instead indicate a sustained failure on the part of the plaintiff to ensure that his claim was advanced. No coherent explanation is provided for the changes in representation, nor is there any indication of instructions given which were not carried out.”

The plaintiff’s failure to satisfy the costs order was described as the most significant feature of the case. The litigation was rendered “incapable of progression” owing to the plaintiff’s failure to satisfy his costs order.

Windell J rejected the plaintiff’s invocation of section 34 of the Constitution, demonstrating that the constitutional right of access to courts is no magic wand capable of reviving litigation left to die by a litigant’s own inaction. There is no constitutional right to pursue relief in proceedings that the plaintiff has chosen not to prosecute.

The plaintiff’s claim was accordingly dismissed for want of prosecution.

The court’s pronouncement in Karanie is particularly important in South Africa’s litigation landscape, where plaintiffs too often abdicate their responsibility as dominus litis, leaving defendants trapped in a state of procedural limbo for years, if not decades. Windell J emphasised that a litigant bears the sole responsibility for the diligent prosecution of its case, and that the courts will not overlook inaction justified by insubstantial or materially irrelevant explanations for delay.

Section 34 of the Constitution affords no license for indifference. The right of access to courts does not shield a litigant from the consequences of failing to prosecute a claim with diligence and purpose.

[1] 2014 (3) SA 198 (SCA).