IN THE HIGH COURT OF SOUTH AFRICA 
[WESTERN CAPE HIGH COURT, CAPE TOWN]
Case No: A678/10
In the mailer between:
CITY OF CAPE TOWN METROPOLITAN LOCAL COUNCIL
Appellant

and

JUDGMENT DELIVERED: 27 MAY 2011 
FOURIE, J:

[1] On 30 April 2003, respondent, as plaintiff, issued a summons out of the Magistrates' Court. Cape Town, against appellant, as defendant. In the particulars of claim to the summons, respondent alleged that on 3 May 2001, she was injured while walking along Hyde Road, Woodstock, when she fell into an open drain on the pavement. She contended that her fall had been caused by appellant's negligence in failing to take the necessary steps to prevent pedestrians being injured by falling into the open drain. She further alleged that, as a consequence of the incident, she sustained injuries to both her knees and ribs. She accordingly claimed an amount of R100 000-00 as damages from appellant.

[2] Appellant defended the action and delivered its pica to respondent's claim, on 23 May 2003. No replication was received in response to the plea, with the result that the pleadings closed ten court days after 23 May 2003.

[3] During June 2005, the attorneys representing respondent formally withdrew as her attorneys of record. No further steps were thereafter taken by any of the parties for a period of almost five years, when respondent's present attorneys of record, on 22 February 2010, delivered a notice requesting discovery of documents by appellant. This prompted appellant, on 10 March 2010, to bring an application in terms of rule 27 (5), for an order that respondent's claim be dismissed with costs. On 16 March 2010, after receipt of appellant's rule 27 (5) application, respondent's attorneys served a notice of set down for trial for 14 July 2010.

[4] Respondent opposed the rule 27 (5) application and an opposing affidavit deposed to by respondent's attorney, Mr. J S Frank, was filed in response to appellant's founding papers. After hearing argument, the magistrate, on 7 May 2010. dismissed appellant's rule 27 (5) application and ordered that the costs thereof are to be costs in the cause in the main action.

1.     Appellant elected to do nothing after close of pleadings for approximately 7 years.
2.	No good cause was shown by appellant as to why it only brought the rule 27 (5) application after such a lengthy period.
3.	Respondent had no financial means to proceed with the case hence her initial attorneys withdrew as attorneys of record.
4.	It was just for the court to arrive at its conclusion taking into account, as well, the seriousness of the injuries sustained by respondent.

[10]   Rule 27 (5) (as it read at the applicable time) provided that:

"A defendant may, if the plaintiff has not within 15 days after the pleadings have closed given notice of trial either for a day not more than 20 days distant or for the first day obtainable from the clerk of the court, apply to the court to dismiss the action and the court may on such application either dismiss the action with costs or make such other order in regard thereto and as to the costs of the application as may be just. "

[11] It is significant to note that the rules of the Magistrates' Courts were repealed in their entirety and replaced with a new set of rules which came into effect on 15 October 2010. The present rules do not contain a provision similar to the former rule 27 (5). However, where legal proceedings had been instituted under the former rules, those rules remain applicable until finalisation of such proceedings, by virtue of the provisions of section 2 (c) and (e) of the Interpretation Act No. 33 of 1957.

[15] In my view the very wide discretion afforded to the magistrate in terms of rule 27 (5). is a truly discretionary power and the power of this court to interfere on appeal with the exercise thereof, is strictly circumscribed, as explained above. Bearing this in mind. 1 now turn to consider the basis upon which the magistrate exercised her discretion in favour of respondent.

[16] As alluded to earlier, the magistrate, broadly speaking, dismissed the application on the following grounds:
1.     Appellant had elected to do nothing after the close of pleadings for approximately 7 years and has not shown good cause why the rule 27 (5) application was only brought after the expiry of such a lengthy period of time.
2. The respondent had no financial means to proceed with the case, hence her former attorneys withdrew as attorneys of record.
3. The decision was just, taking into account the serious injuries sustained by respondent.

[21] In my view, the magistrate was entitled to take the extra-ordinary long delay by appellant in bringing the rule 27 (5) application, into account for purposes of exercising her discretion. Rule 22 expressly provides that, if a plaintiff does not within 15 days after the pleadings have been closed, deliver notice of trial, the defendant may do so. There is no explanation by appellant as to why no steps were taken by it to have the matter enrolled. Apart from that, there is, as stated by the magistrate, no explanation at all why appellant thought it fit to wail for a period of seven years before utilising the provisions of rule 27 (5).

[23] It is also true that the magistrate may have overstated the seriousness of the injuries sustained by respondent, but the fact of the matter is that, on the papers before the court, she did sustain injuries. It is also clear on the papers that she had financial problems which probably caused her former attorneys to withdraw from the proceedings. This would certainly have caused her additional delay in pursuing the matter.

[27] As far as the costs of the appeal are concerned, respondent as the successful party should be entitled to her costs.

[28]   In the result, the appeal is dismissed with costs.

I agree.