The
plaintiff sought and obtained a date for this pre-trial conference in terms of
Order 26 Rule 182(4) of the High Court Rules 1971. Both parties were served
with the notice of set down being 12 May 2010. In fact, it seems that it was
the plaintiff who ensured that the parties are aware of the set down date. The
plaintiff is in default.
The
absence of the plaintiff prompted the defendant to apply for the dismissal of
the plaintiff's claim.
Although
counsel for the defendant has not cited the provisions of the Rules he was
relying on, it is clear that he had Rule 182(11) in mind. Rule 182(11)…,
provides -
“A
judge may dismiss a party's claim or strike out his defence or make such other
order as may be appropriate if –
(a)
The party fails to comply with directions given by a judge in terms of sub-rule
(4), (6), (8) or (10) or with a notice given in terms of sub-rule (4); and
(b)
Any other party applies orally for such an order at the pre-trial conference or
makes a chamber application for such an order.”
In
casu, the plaintiff's case is characterized by several procedural flaws. First,
the plaintiff set the matter down before replicating, effecting discovery and
joinder. In short, the pre-trial conference was set down before the pleadings
were closed. After pre-maturely setting the matter down, the plaintiff did not
bother to attend. There is adequate proof that the plaintiff was aware of the
date of the pre-trial hearing. The plaintiff refused or neglected to attend.
There was no explanation advanced for the absence. This type of conduct calls
for dismissal of the plaintiff's action.
Accordingly, I dismiss the plaintiff's claim
with costs.
