- The court found the delay exceeded 10 years and was not properly explained.
- The plaintiff failed to pay taxed costs since 2016, resulting in a stay of proceedings.
- The insurer proved serious prejudice due to the age of the claim and the deterioration of evidence.
A claim for insurance benefits instituted in 2012 has been dismissed without ever being heard on the merits after the High Court in Johannesburg found that the plaintiff’s prolonged inaction and failure to comply with a costs order prevented the matter from proceeding.
David Karanie sued Discovery Life Limited for benefits allegedly due under a life insurance policy. The dispute arose after Discovery Life Limited terminated income continuation payments in February 2012.
Karanie alleged that he suffered a serious head injury during an armed robbery in November 2009, which led to the development of a brain tumour diagnosed shortly thereafter and left him unable to continue working. Discovery Life Limited initially accepted the claim and paid benefits from September 2010 until February 2012, totalling R1 364 120.09.
The insurer later terminated the benefits after concluding that Karanie had failed to disclose a prior medical consultation in June 2009 for persistent frontal headaches and advice to consult a neurosurgeon. It relied on this alleged non-disclosure to defend the claim and instituted a counterclaim to recover the amounts already paid.
Procedural history and stalled proceedings
By May 2015, the matter was ready for trial. Pleadings had closed, discovery had been completed, expert witnesses consulted, and a pre-trial conference held.
On 1 April 2015, shortly before the trial date, Karanie’s attorneys withdrew. The trial did not proceed and was postponed sine die, with Karanie ordered to pay the wasted costs. Those costs were taxed on 23 May 2016 in the amount of R46 871.85. However, they were not paid.
On 13 July 2023, the court granted an order staying the proceedings pending payment of the taxed costs. The effect of that order was that the matter could not proceed further until payment was made.
Despite this, the costs remained unpaid. Although Karanie undertook in December 2024 to settle the amount, no payment was made. As at the date of judgment, more than thirteen years after the action was instituted, the matter remained stayed and incapable of progression.
Plaintiff’s explanations rejected
Karanie advanced three explanations for the delay. He disputed the medical evidence relied upon by Discovery Life Limited, particularly the report of Dr Nalla, and claimed that a further report obtained in 2019 undermined those findings.
The court found that these issues had been in dispute since 2012 and did not explain the failure to advance the case. The alleged report was not produced, not disclosed in the proceedings, and not raised during pre-trial processes.
Judge L Windell held, “The reliance on the alleged report serves to underscore, rather than explain, the plaintiff’s inaction.”
Karanie also attributed the delay to problems with his legal representatives. The court rejected this on the facts. He had been represented by multiple firms and also spent extended periods without legal representation, including approximately six years after 2015, during which no steps were taken to progress the matter. The court found no basis to attribute the delay to attorneys.
The third explanation related to the failure to pay taxed costs. Karanie claimed he attempted to settle the costs using funds from an investment policy. The court found that no payment was made, no formal tender was advanced, and no application was brought to compel payment.
Judge Windell said, “The plaintiff has rendered his own action incapable of progression.”
Legal principles applied
The court applied established principles governing dismissal for want of prosecution, including the need to consider the length of the delay, the explanation for it, and the prejudice to the opposing party.
The delay was found to be inordinate, and the explanations unsatisfactory. The failure to pay taxed costs was identified as a central factor preventing the matter from proceeding.
The court also rejected reliance on the right of access to courts. It held, “The right of access to courts does not entitle a litigant to institute proceedings and then allow them to remain dormant indefinitely.”
Prejudice against the insurer
The court found that Discovery Life Limited had suffered real and substantial prejudice. The events underlying the claim dated back to November 2009, more than 15 years earlier. The passage of time affected the availability and reliability of evidence, particularly medical expert evidence.
Discovery Life Limited had already prepared its case and identified expert witnesses. The court accepted that expecting those experts to remain available after such a lengthy period was inherently prejudicial and could require the insurer to incur further costs in securing new experts.
Karanie, by contrast, had not delivered any medical expert notices. The insurer was also left with a long-standing, unresolved claim and could not achieve finality while the proceedings remained stayed. Judge Windell found, “the prejudice to the defendant is not only undeniable but serious.”
Court’s conclusion
The court acknowledged that dismissal without a hearing on the merits is a serious step. It considered whether a lesser remedy would suffice, but found that none would resolve the procedural deadlock caused by the unpaid costs and prolonged inaction.
The delay, the absence of a satisfactory explanation, and the prejudice to Discovery Life Limited justified the dismissal of the claim.
The court dismissed Karanie’s claim and ordered him to pay the costs of the application, including the costs of counsel.
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