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2024
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[2024] ZAECMHC 13
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Mgatyelwa v Minister of Police and Another (1174/2016) [2024] ZAECMHC 13 (19 March 2024)
FLYNOTES:
CIVIL
PROCEDURE – Joinder –
Organs
of state
–
National
Prosecuting Authority – Actions of public prosecutor –
Special pleas of misjoinder and non-joinder –
Basis for
joinder of Minister is that he is vicariously liable for delict –
Defendant’s joinder is sanctioned
by law – Defendant’s
department plays a crucial role in expenditure of NPA –
Special plea of misjoinder
dismissed – National Prosecuting
Authority is a necessary party to be joined in proceedings –
Special plea of
non-joinder of NPA upheld.
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
CASE NO:1174/2016
In the matter between:
THEMBILE LUCAS
MGATYELWA
PLAINTIFF
And
MINISTER OF
POLICE
1
ST
DEFENDANT
MINISTER OF JUSTICE &
CORRECTIONAL
SERVICES
2
ND
DEFENDANT
JUDGMENT
ZONO AJ:
INTRODUCTION
[1]
The
plaintiff instituted the instant proceedings on 7 April 2016 against
the Minister of Police and the Minister of Justice and
Correctional
Services. The National Minister of Justice and Correctional Services
is sued in his capacity as such and as a Minister
vicariously liable
for the delicts committed or for omission by the members of the
National Prosecuting Authority and employees
in the Department of
Justice and Correctional Services when performing their duties within
the course and scope of their employment
with the Minister of Justice
and Correctional Services and is cited herein as the second
defendant.
[2] Relevant
averments in the particulars of claim that seek to connect the
Minister of Justice and Correctional
Services, the National
Prosecuting Authority to the actions of the public prosecutor
concerned are couched as follows:
“
8.2
.
. . .The Prosecutor:
8.2.1 had
a legal duty to read the police docket held under Cas No.33/09/2014
in order to assess the release
or otherwise of the plaintiff from
police custody,
8.2.2 had
a legal duty to decide whether to place or not the said
criminal case on the criminal court
roll if there was no sufficient
information in the police docket.”
[3] The
defendants delivered the amended plea in which various contentions
are made. The defendants sought
to explain the role of public
prosecutor, Miss Ndika when the matter first appeared before the
lower court with a view to deny
pertinent averments made against the
public prosecutor in the particulars of claim. The contentions were
understood to be assailing
plaintiff’s failure to join the
National Prosecuting Authority as an institution that is responsible
for prosecutorial decisions.
Anent to that, the plaintiff averred in
his amended replication as follows:
“
5.
.
. . . . The National Prosecuting Authority has no direct and
substantial interest in the determination of this matter and
could
not be adversely affected by the court order which might be granted
by the Honourable Court, therefore, it is denied that
there is
non-joinder of the National Director of Public Prosecutions in this
matter.”
[4] On
14 December 2021 this court granted an Order separating the issues of
special pleas of misjoinder
of the second defendant, non-joinder of
the National Director of Public Prosecutions and non-joinder of the
Magistrate of Libode
Magistrate’s Court from the issue of
liability and
quantum
. On 11 September 2023 this court
postponed the trial for determination of the defendant’s
special pleas to 11-15 March 2024.
[5] On
11 March 2024 the matter came before this court. The parties sought
by consent an Order separating
second defendant’s special plea
of non-joinder of the National Director of Public Prosecutions from
the special plea of misjoinder
of the second defendant and
non-joinder of the Magistrate, Libode with the later special pleas
postponed
sine die,
to be adjudicated together with the merits
of the plaintiff’s case. This Order was granted. The trial
proceeded on the second
defendant’s special plea of non-joinder
of the National Director of Public Prosecutions.
[6] The
court is called upon to decide whether or not there is non-joinder of
National Director of Public
Prosecutions as a party in these
proceedings. In addition to the pleadings which crystalizes the issue
of non-joinder of the National
Director of Public Prosecutions, the
second defendant called the evidence of the public prosecutor Ms
Sikhona Ndika, a prosecutor
who attended to the plaintiff’s
matter before the Magistrates’ Court in Libode. In evidence, Ms
Ndika testified that
at all material times thereto she was employed
by the National Prosecuting Authority. In support of that she
introduced her contracts
of employment. She further testified that
she is under the supervision and control of the National Prosecuting
Authority. She categorically
denied that she is in the employ of the
second defendant.
[7] No
objection by the plaintiff to the admission of the contracts in
evidence as Exhibit “A”.
Accordingly, they were so
admitted. The contracts were deemed to have commenced, respectively
on 01 November 2013 and stay in effect
until and up to 31 October
2014 and 01 November 2014 to 31 October 2015. These contracts
identify the parties thereto as follows:
“
Agreement
entered into between the Government of South Africa in its National
Prosecuting Authority (
hereinafter
called the employer
)
represented by Mr J.Hayward in his capacity duly authorized as Senior
Manager: HRM
And
Sikhona Ndika with ID
No.: 850423 0533 088 (
hereinafter called the employee
).”
[8] Another
relevant clause of the contract is Clause 2 of the one contract ended
31 October 2014 which reads
as follows:
“
2.
Place
of employment and capacity:
The employee shall
serve the employer as Aspirant Prosecutor at the offices of the
National Prosecuting Authority in Mthatha Training
Centre and such
other place or places as may from time to time be directed by the
employer or any other office duly authorized
thereto into this
regard.”
[9] Clause
2 of the contract that ended on 31 October 2015 reads as follows:
“
2.
Place
of Employment and Capacity
The employee shall
serve the employer as District Court Prosecutor – Grade 1
(LP-3) at the National Prosecuting Authority
at CPP: Mthatha (Libode)
and at such other place or places as may from time to time be
directed by the employer or any other officer
duly authorized thereto
in this regard.”
[10] Ms
Ndika testified that her salary is paid by the National Prosecuting
Authority as her employer. In
support of that, she introduced her
payslips for the year 2014 and 2015. This evidence covered the
joinder issues arising from
the conduct of Ms Ndika. The oral
submissions by both parties fully canvassed the issue of misjoinder
of the second defendant and
non-joinder of National Prosecuting
Authority.
[11]
Both
parties furnished me with their respective written heads of argument.
I thank both parties for insightful heads of argument.
In both sets
of heads of argument, the respective parties argue their respective
cases on the premise that a special plea of misjoinder
of the second
defendant must be decided, together with the special plea of
non-joinder of National Prosecuting Authority. Written
submissions
fully canvassed both topics. The special pleas of misjoinder and
non-joinder referred to above were fully canvassed
in trial
[1]
.
[12] The
special pleas of misjoinder of the second defendant and non-joinder
of the National Director of
Public Prosecutions are closely linked
and intertwined. It is because of that interwovenness of these issues
that the parties elected
to argue both issues or special pleas
together. It is convenient therefore to deal with both special pleas
herein. The legal principles
affecting the determination of the
special plea of non-joinder are same as those necessary for
determination of a special plea
of misjoinder.
DISCUSSION
[13]
Whether
or not there is a non-joinder of the National Director of Public
Prosecutions and misjoinder of the second defendant depends
on
various considerations and legal principles. Same principles are
applicable when dealing with an issue of misjoinder and
non-joinder
[2]
.
[14]
Non-joinder
is the failure of a plaintiff to join a particular defendant with
another whom he is suing, in circumstances in which
the law requires
that both should be sued together or the failure by a plaintiff to
join with himself as co-plaintiff another person
whom the law
requires should be joined when suing a particular defendant or
defendants. Misjoinder is the joining of several plaintiffs
or
defendants in one action in circumstances which the law does not
sanction, i.e. the objection is that the wrong plaintiffs are
suing
or the wrong defendants are being sued
[3]
.
(i) Misjoinder
[15]
A
plea of misjoinder is in respect of the second defendant who is the
National Minister of Justice and Correctional Services. The
basis for
his joinder is that he is vicariously liable for the delict committed
by and omission of the members of the National
Prosecuting Authority
and employees in the Department of Justice and Correctional Services
when performing their duties within
the course and scope of
employment with the second defendant. The claim is intended to be
brought against the State
[4]
.
[16] The
first port of call are the provisions of section 2(1) of
State
Liability Act 20 of 1957
which provides as follows:
“
In
any action or other proceedings instituted by virtue of the
provisions of
section 1
, the executive authority of the department
concerned must be cited as a normal department or respondent”.
[17]
Section
1
referred to herein provides for actions brought or instituted
against the State. The executive authority is defined in
section 4A
of
State Liability Act as
follows:
“
executive
authority”, in relation to—
(a) a national
department, means the Cabinet member who is accountable to Parliament
for that department; and
(b) a provincial
department, means the member of the Executive Council of a province
who is accountable to the provincial legislature
for that
department.”
[18]
The
provisions of
section 2(1)
of the
State Liability Act are
couched in
peremptory terms. As a general rule non-compliance with peremptory
provisions result in nullity
[5]
.
In actions instituted against the state, executive authority must be
cited as a nominal defendant, otherwise the action will be
nullity.
[19] Another
condition for citation of the executive authority is that the wrong
complained of must have
been “
committed by servant of the
State acting in his capacity as such and within the scope of his
authority as such servant.
” The wrong that is the subject
matter of the present proceedings was committed by Ms Ndika in her
capacity as the prosecutor.
A prosecutor is a servant of the State.
Undoubtedly Ms Ndika, at all material times when the plaintiff
attended court during the
first appearance, was acting within the
course and scope of her authority as servant of the State. The
evidence led in this court
by Ms Ndika on behalf of the second
defendant demonstrated clearly that she is a servant of the State.
[20]
The
second defendant is the executive authority of the Department of
Justice and Correctional Services. Reference in
section 2(1)
of
State
Liability Act to
department is reference to National and Provincial
department. Therefore, the second defendant is executive authority of
the National
Department of Justice and Correctional Services. The
executive authority is cited as nominal defendant only when
proceedings are
instituted against the National and Provincial
Department. By mere citation of the second defendant it is
ascertainable that those
proceedings are brought against the National
Department of Justice and Correctional Services. The section
seemingly does not apply
to local government
[6]
.
[21] Section
179(6) of the Constitution provides that:
“
The Cabinet
member responsible for the administration of justice must exercise
final responsibility over the prosecuting authority.”
The
National Legislation contemplated in section 179(3), (4) and (7) is
National Prosecuting Authority Act 32 of 1998
. In giving effect to
the provisions of 179 of the Constitution, section 33(1) confers
power upon the Minister to exercise final
responsibility over the
prosecuting authority. The Minister is defined in the Act to mean
“
the cabinet member responsible
for administration of justice.
The
cabinet member referred to in the
National Prosecuting Authority Act
is
the second defendant. It is therefore plain from these provisions
that the second defendant is not an outsider in the affairs of
National Prosecuting Authority. It puts paid to the second defendant
joinder as the relevant executive authority.
[22]
The
question that must be answered in this matter, regard being had to
definition of the concept of misjoinder outlined in paragraph
13
above, is whether or not the joinder of the second defendant is
sanctioned by law. The purposive and contextual interpretation
of the
above legal prescripts directs me to find that the second defendant’s
joinder is sanctioned by law
[7]
.
[23]
Section
179(5)(a)
thereof provides that:
“
The
National Director of Public Prosecutions – must determine, with
the concurrence of the cabinet member responsible for
the
administration of justice, and after consulting the Directors of
Public Prosecutions, Prosecution policy which must be observed
in the
prosecution process.”
The prosecution policy
concurred to by the cabinet member responsible for administration of
justice is an implementation tool in
the prosecution process which
starts with the decision to prosecute.
[24] With
regard to prosecution policy referred to in section 179(5) of the
Constitution,
section 21(1)
of the
National Prosecuting Authority Act
provides
as follows:
“
(1)
The
National Director shall, in accordance with
section 179(5)(a)
and (b)
and any other relevant section of the Constitution—
(a)
with
the concurrence of the Minister and after consulting the Directors,
determine prosecution policy; and
(b)
issue
policy directives, which must be observed in the prosecution process,
and shall exercise such powers and perform such functions
in respect
of the prosecution policy, as determined in this Act or any other
law.”
The
second defendant influences the prosecution process which begins with
the power or decision contemplated in section 20(1) of
the Act
[8]
,
by means of prosecution policy, to which he must concur, which must
be observed at all stages of prosecution process. It is not
without
significance that the prosecution policy determines circumstances
under which prosecution must be instituted in the court
of first
instance in respect of certain offences
[9]
.
It is therefore uppermost that the prosecution policy regulates the
conduct of prosecution.
[25]
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[10]
it was
held that:
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective not subjective.
A sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose
of the
document. Judges must be alert to, and guard against, the temptation
to substitute what they regard as reasonable, sensible
or
businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation. In a contractual context it is to
make a contract for the parties other than the one they in fact
made.
The ‘inevitable point of departure is the language of the
provision itself’, read in context and having regard
to the
purpose of the provision and the background to the preparation and
production of the document.”
[26] It
was never an intention of the
National Prosecuting Authority Act and
the Constitution to exclude the National Prosecuting Authority from
the Ministry of Justice and Correctional Services. The executive
authority responsible for National Prosecuting Authority is the
second defendant. Section 179 of the Constitution and provisions
of
the
National Prosecuting Authority Act make
it plain that the second
defendant is responsible in a way, for prosecutorial decisions by
mere implementation of prosecutorial
policy referred to above. The
Constitution and
National Prosecuting Authority Act preponderantly
refer to and confer the role on the second defendant in the affairs
of the National Prosecuting Authority.
[27] In
her evidence, the public prosecutor, Ms Ndika testified that her
employer is the National Prosecuting
Authority. She said that being
supported by her contracts of employment referred to above. In
support of that, Ms Ndika testified
that the salary is paid by the
National Prosecuting Authority. Salary advices were used in support
of that assertion. That is not
the end, if regard is had to the
provisions of
section 18(1)
of the
National Prosecuting Authority Act
which
provides as follows:
“
Subject to the
provisions of this section, any Deputy Director or prosecutor shall
be paid a salary in accordance with the scale
determined from time to
time for his or her rank and grade by the Minister after consultation
with the National Director and the
Minister for the Public Service
and Administration, and with the concurrence of the Minister of
Finance, by notice in the Gazette.”
It is discernible from
this that the second defendant plays a crucial role in the payment of
prosecutor’s salaries as he is
ceased with power to determine
the scale of salaries for the ranks and grades of the prosecutors.
There is no doubt in my mind
that without a determination of salary
scales by the Minister, no salary payments may be made to the
prosecutors. That determination
of salary scales makes the second
defendant an integral part of the prosecutor's salary payment.
[28] The
second defendant’s department plays a crucial role in the
expenditure of the National Prosecuting
Authority. I find solace for
this provision in
section 36
of the
National Prosecuting Authority
Act, which
provides as follows:
“
36
Expenditure of prosecuting authority
36. (1)
The expenses incurred in connection with—
(a)
the exercise of the powers, the carrying out of the duties and the
performance of the functions of
the prosecuting authority; and
(b)
the remuneration and other conditions of service of members of the
prosecuting authority, shall be
defrayed out of monies appropriated
by Parliament for that purpose.
(2)
The Department of Justice must, in consultation with the National
Director, prepare the necessary estimate
of revenue and expenditure
of the prosecuting authority.
(3)
The Director-General: Justice shall, subject to the Exchequer Act,
1975 (Act No. 66 of 1975)—
(a)
be charged with the responsibility of accounting for State monies
received or paid out for or on account
of the prosecuting authority;
(b)
cause the necessary accounting and other related records to be kept.
(4) The records referred to in
subsection (3)(b) shall be audited by
the Auditor-General.”
It is not without
significance that the Director-General of the second defendant’s
department is the accounting officer charged
with the responsibility
of accounting for state monies received or paid out for or on account
of the prosecuting authority. He
has an impact on the accounting
record keeping of the National Prosecuting Authority.
[29]
With
regard to accountability, it is correct that the National Prosecuting
Authority is accountable to parliament
[11]
.
However,
section 35(2)
of the
National Prosecuting Authority Act
provides
as follows:
“
(2) (a)
The
National Director must submit annually, not later than the first day
of June, to the Minister a report referred to in
section 22(4)(g)
,
which report must be tabled in Parliament by the Minister within 14
days, if Parliament is then in session, or if Parliament is
not then
in session, within 14 days after the commencement of its next ensuing
session.
(b)
The
National Director may, at any time, submit a report to the Minister
or Parliament with regard to any matter relating to the
prosecuting
authority, if he or she deems it necessary.”
This demonstrates the
interconnection and interwovenness between the Minister and the
National Prosecuting Authority.
[30] If
the National Prosecuting Authority is the prosecutor’s employer
in terms of the employment
contract, the second defendant is
prosecutor’s employer in terms of the law outlined above. It is
not unthinkable that prosecutors
have two principals. There is dual
principalship in this regard. National Prosecuting Authority is not
the sole principal or employer
of the prosecutors.
[31]
In
Nohour
& Another v Minister of Justice and Constitutional
Development
[12]
it was
held that prosecutors when they are at work they act within the
course and scope of their employment with the Department
of Justice
and Constitutional Development which is now the second defendant’s
department. I am constraint by the doctrine
of precedent to follow
this judgment. Doctrine of precedent requires courts to follow the
decision of coordinate and higher courts
in the judicial
hierarchy
[13]
.
[32]
It
is unimaginable that the judgment of Nohour might have been referring
to a different kind of prosecutors, to which category Ms
Ndika does
not belong. It is so because there is a single National Prosecuting
Authority in the Republic structured in terms of
an Act of
parliament
[14]
. The act of
parliament referred to above is the
National Prosecuting Authority
Act.
[33
]
In
Minister
of Justice and Constitutional Development v X
[15]
the
Western Cape High Court found the Minister liable for negligent
conduct of the public prosecutor who failed to put all relevant
information before court in a bail application. The judgment of the
Western Cape High Court was confirmed against the Minister
of Justice
and Constitutional Development by the Supreme Court of Appeal.
[34] On
the conspectus of the above I find that the second defendant is
correctly joined herein in his capacity
as the executive authority
referred to in
section 2(1)
of the
State Liability Act 20 of 1957
.
The second defendant is the executive authority charged with final
responsibility over the National Prosecuting Authority. Ms
Ndika is a
member of the National Prosecuting Authority.
[35]
Whilst
it is correct that Ms Ndika is employed in terms of her contracts of
employment by the National Prosecuting Authority, but
it is equally
true that she is employed within the Department of Justice and
Correctional Services. It is that department through,
its
Director-General, that is charged with responsibility of accounting
for State monies including expenses incurred in connection
with the
remuneration and other conditions of service of members of the
prosecuting authority
[16]
.
Secondly, the second defendant is charged with responsibility to
determine the scale of salaries of the prosecutors
[17]
.
The responsibilities outlined above are akin to the responsibilities
of an employer. The second defendant and his department are
quintessentially employers of the prosecutors, hence finding that, in
cases of the prosecutors, there is dual principalship. It
cannot be
imagined that the National Prosecuting Authority, in the light of the
legislative provisions adumbrated above, can be
regarded as the sole
principal or employer of the prosecutors.
[36] Finally
on this topic, much store has been put on the independence of the
National Prosecuting Authority.
The submission on behalf of the
second defendant was to the effect that the National Prosecuting
Authority enjoys independence
that may be threatened or compromised
if the National Prosecuting Authority were to have a political head
or Minister charged with
responsibility over it. The principle of
independence is rooted from the provisions of section 179(4) of the
Constitution which
require that the National Prosecuting Authority
exercises its functions without fear, favour or prejudice.
[37] Powers
of the second defendant, juxtaposed with those of the National
Prosecuting Authority, are legislatively
circumscribed. There is no
threat that there may be an overreach because of the blurred lines.
There are no blurred lines. The
second defendant and the National
Prosecuting Authority are endowed with their respective powers that
enable them to co-exist.
[38]
In
Glenister
v President of the Republic of South Africa
[18]
the
Constitutional Court grappled with the principle of independence and
the majority held that:
“
The question,
therefore, is not whether the DPCI is fully independent, but whether
it enjoys an adequate level of structural and
operational autonomy
that is secured through institutional and legal mechanisms designed
to ensure that it “discharges its
responsibilities
effectively”, as required by the Constitution.”
[39] In
the same judgment the Chief Justice added:
“
Ultimately
therefore, the question is whether the anti-corruption agency enjoys
sufficient structural and operational autonomy so
as shield it from
undue political influence.”
[40]
It
is not complete and absolute independence that is required. Adequate
or sufficient structural and operational autonomy is required,
which
is duly secured by legal mechanisms like the Constitution and the
National Prosecuting Authority Act. The
powers conferred upon the
second defendant as an executive authority cannot result in an
impermissible political management of
the National Prosecuting
Authority by him
[19]
.
[41] In
the light of the above, I accordingly cannot uphold second
defendant’s special plea of misjoinder.
Non-joinder
[42] The
second defendant argued that the National Director of Public
Prosecutions, the Head of National
Prosecuting Authority in her
capacity as such has direct and substantial interest in the matter.
[43]
The
question as to whether all necessary parties had been joined does not
depend upon the nature of the subject matter of suit but
upon the
manner in which and extent to which the court’s order may
affect the interest of third parties
[20]
.
The test is whether or not a party has a direct and substantial
interest in the subject matter of the action, that is, a legal
interest in the subject matter of the litigation which may be
affected prejudicially by the judgment of the court
[21]
.
[44]
The
rule is that any person is a necessary party and should be joined if
such a person has a direct and substantial interest in
any order the
court might take or if such an order cannot be sustained or carried
out into effect without prejudicing that party
[22]
.
[45] In
the light of the fact that the contract of employment of Ms Ndika
reflects and positions the National
Prosecuting Authority as an
employer and Ms Ndika as an employee, the common law principle of
vicarious liability applies. The
omission complained of that the
public prosecutor, Ms Ndika failed to advise the Magistrate of the
insufficiency of information
on the docket and her failure to read
the docket, occurred when she was acting within the course and scope
of the employment as
the employee of the National Prosecuting
Authority. It is trite that under this principle it is the employer
that is liable and
not the employee. Accordingly, I find that the
National Prosecuting Authority has a direct and substantial interest
in the matter
in the manner outlined above.
[46] The
role of National Prosecuting Authority as the employer of Ms Ndika is
not shifted by the finding
that in the case of prosecutors there is
dual principalship, instead it is streangthened by the fact that the
National Prosecuting
Authority, too, is the employer of the
prosecutors.
[47] Paragraph
8 and 9 hereof set out verbatim the contents of paragraph 2 of each
contract of employment
between the National Prosecuting Authority and
Ms Ndika. It is apparent therefrom that the National Prosecuting
Authority exercised
control over Ms Ndika. In addition, Clause 11 of
the respective contract clearly demonstrate that the National
Prosecuting Authority
exercised not only control over Ms Ndika but
also supervision. The clause provides as follows:
“
11
GENERAL
11.1
The EMPLOYEE shall faithfully and diligently devote the whole of
his/her time to the service of the EMPLOYER
and shall undertake such
duties as the EMPLOYER or any officer duly authorized thereto in this
respect shall require of him/her
and she/he shall comply with the
rules and orders governing the particular office, post or
institution, at or in which such EMPLOYEE
may be stationed or
employed.
11.2
The EMPLOYEE shall not, without the express prior written consent of
the accounting officer under which the
EMPLOYEE’S office falls,
perform or undertake to perform remunerative work outside the
EMPLOYER’S service, whether
within or outside official working
hours.
11.3
The EMPLOYEE shall, at such intervals as the EMPLOYER may
direct, report fully on the results obtained
and knowledge acquired
by him/her in any research work done by him/her, both during and
outside official working hours.
11.4
The EMPLOYEE undertakes not to communicate to any person outside the
EMPLOYER’S service or to publish
either during the duration of
this agreement, or after the termination thereof, any results so
obtained by him/her, in the course
of his/her duties, without the
written consent of the EMPLOYER to such communication or
publication.”
[48] The
actual payment of salary of Ms Ndika is clearly indicated to be by
National Prosecuting Authority,
in the contracts. In fact, even in
her oral testimony, Ms Ndika tendered a uncontroverted evidence that
she receives her salary
from the National Prosecuting Authority and
she supported her evidence by her payslips. I therefore find that Ms
Ndika acted at
all material times in furtherance of National
Prosecuting Authority’s interest.
[49]
Jurisprudence
has developed that where a matter involves a decision taken by a
member of the National Prosecuting Authority, the
National
Prosecuting Authority through the National Director of Public
Prosecutions is cited and becomes a party. That happens
even in those
cases where a matter is not for recovery of damages or a claim for a
debt
[23]
. Accordingly, I find
that the National Prosecuting Authority is a necessary party to be
joined in these proceedings.
COSTS
[50] The
general rule is that costs must follow the result. A successful party
must be awarded costs. In
this case, two special pleas were argued
and decided in favour of both respective parties. The second
defendant won in respect
of the special plea of non-joinder whereas
the plaintiff won in respect of the special plea of misjoinder.
Similarly, both parties
lost. The second defendant lost in respect of
the special plea of misjoinder whereas the plaintiff lost in respect
of special plea
of non-joinder. Accordingly, no party is entitled to
costs.
ORDER
[51] In
the result, I make the following Order:
51.1 The
second defendant’s special plea of misjoinder of the second
defendant is hereby dismissed.
51.2 The
second defendant’s special plea of non-joinder of the National
Prosecuting Authority is hereby
upheld.
51.3 The
plaintiff is hereby granted leave to join the National Director of
Public Prosecutions, if so advised,
within fifteen (15) days hereof.
51.4 There
shall be no order as to costs.
A.S. ZONO
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
For the PLAINTIFF
:
ADV VAN
DE LINDE SC
Instructed by
:
CAPS PANGWA & ASSOCIATES
33
CALLAWAY
MTHATHA
REF:
PANGWA
For the 2
ND
DEFENDANT : ADV
BODLANI SC
Instructed
by
:
THE STATE ATTORNEY
BROADCAST
HOUSE
NO.94
SISSION STREET
MTHATHA
REF:
622/16-A6N
DATE HEARD
: 11
TH
MARCH 2024
DATE DELIVERED
:
19
th
MARCH 2024
[1]
See
Minister of Safety & Security v Slabbert 2010 (2) ALLSA 474
(SCA).
[2]
See
van
der Lith v Alberts
1944
TPD 17
at 22;
GB
v SB
2016
(1) SA 47 (WCC) at 53 G-H.
[3]
See
Erasmus: Superior Court Practice 2
nd
Ed
Vol 2 page D1 – 124.
[4]
See
Section 1
of the
State Liability Act 20 of 1957
as amended.
[5]
See
LAWSA, 2
nd
Ed
Vol 25, Port page 339; G.M Cockram: Interpretation of Statutes, 34r
Ed page 161.
[6]
See
Jayiya
v MEC for Welfare, EC & Another
2006
(2) SA 611
SCA para 5.
[7]
See
Cool
Ideas 1186 CC v Hubbard & Another
2014
(4) SA 479
para 28.
[8]
See Power to institute and conduct criminal proceedings on behalf of
the State; Power to carry out any necessary functions incidental
to
instituting and conducting such criminal proceedings; and power to
discontinue criminal proceedings.
[9]
See
section 21(3)
of
National Prosecuting Authority Act.
[10
]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) para 18.
[11]
See
Section 35
(1) of the
National Prosecuting Authority Act.
[12
]
Nohour
& Another v Minister of Justice and Constitutional Development
2020
(2) SACR 229 (SCA) para 3.
[13]
See
True
Motives 84 (Pty) Ltd v Matidi
2009
(4) SA 153
(SCA) para 100 – 101;
Makhanya
v The University of Zululand
2010
(1) SA 62
(SCA) para 6.
[14]
See
section 179(1) of the Constitution;
Section 2
of the
National
Prosecuting Authority Act.
[15]
Minister
of Justice and Constitutional Development v X
2015
(1) SA 187 (SCA).
[16]
See
Section 36(1)
and (2) of the
National Prosecuting Authority Act 32
of 1998
.
[17]
See
Section 18(1)
of the
National Prosecuting Authority Act 32 of 1998
.
[18]
Glenister
v President of the Republic of South Africa
2011
(3) SA 347
(CC) para 125.
[19]
McBride
v Minister of Police & Another
2016
(2) SACR 585
(CC) para 35 & 38.
[20]
See
Amalgamated
Engineering Union v Minister of Loabour
1949
(3) SA 627
(A) at 657.
[21]
See
Henri
Viljoen (Pty) Ltd v Awerbuch Bros
1953
(2) SA 151
(O) at 168-70.
[22]
See
Kethel
v Kethels’ Estate
1949
(3) SA 598
(A) at 610.
[23]
See
Zuma
v Democratic Alliance & Others; Acting National Director of
Public Prosecutions & Another v Democratic Alliance &
Another
2018
(1) SA 200
(SCA) para 1.