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[2021] ZAGPPHC 90
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Malgas and Others v Minister of Justice and Correctional Services (73418/16) [2021] ZAGPPHC 90 (18 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHERS JUDGES: YES
(3)
REVISED: YES
Case
No: 73418/16
In
the matter between:
PETER
THEMBEKILE
MALGAS
First Plaintiff
ALFRED
DISCO
BIYELA
Second Plaintiff
BOSWELL
JOHN
MHLONGO
Third Plaintiff
and
MINISTER
OF JUSTICE AND CORRECTIONAL SERVICES
Defendant
SPECIAL
PLEA JUDGMENT
BAQWA
J
:
INTRODUCTION
1.
The plaintiffs have claimed damages by way
of action and the
background thereto is briefly as follows: -
2.
In June 2004, the North West High Court found
the plaintiffs guilty
of a number of serious crimes and sentenced them to life imprisonment
and other lesser periods of imprisonment
after which the plaintiffs
were incarcerated.
3.
The defendant is the Minister of Justice and
Correctional Services
who has been cited in terms of the
State Liability Act
, Act 20
of 1957 in his capacity as the Minister responsible for the
administration of justice.
4.
After their conviction, plaintiffs approached
the Mahikeng Justice
Centre (“the Centre”) for assistance with their intended
appeal. The Centre required a transcript
of the record of proceedings
of the trial in order to assess the merits of an appeal and the
plaintiffs were informed that it did
not possess the resources to
acquire a transcript.
5.
The plaintiffs did not possess the financial
resources to acquire a
transcript but after a period of about two years, family and friends
of the plaintiffs raised the necessary
funds to obtain a transcript
and payment was made during August 2006.
6.
However, a materially complete and judicially
approved transcript
could only be provided to the plaintiffs during October 2012. This
was despite repeated and ongoing efforts
by the plaintiffs to obtain
the transcript.
7.
After obtaining the transcript, the plaintiffs
proceeded with their
appeals first to the full bench of the North West High Court, then
petitioning the Supreme Court of Appeal
and finally to the
Constitutional Court.
8.
On appeal, the plaintiffs’ convictions and sentences were
set
aside on the merits by the Constitutional Court during 2015 and the
plaintiffs were released during that year.
9.
This action seeks an order declaring that
the detention of the
plaintiffs was wrongful and that the defendant is liable in delict
for the said wrongful detention and deprivation
of liberty. The
plaintiffs also seek are order postponing the issue of quantum
sine
die
with costs.
10.
The matter has been setdown for trial from 15 to 26 February
2021 and
on the first day of trial the defendant sought to pursue the special
plea which formed part of its plea as follows:
“
DEFENDANT’S
SPECIAL PLEA OF NON – JOINDER
1.1
In paragraph 13.1
of their particulars of claim, the plaintiffs aver that:
“
During
the period between the year 2004 to the year 2006 the plaintiffs
could not obtain a copy of the record of proceedings during
their
trial before the Honourable Justice Leeuw, due to the failure,
refusal and/or neglect of the Mahikeng Justice Centre to arrest
the
plaintiffs to obtain a copy of the said record of the proceedings.”
1.2
In paragraph 13.2
of their plea the plaintiffs aver that:
“
During
the period between 2006 and 2012 the plaintiffs could not obtain a
materially complete copy of the record of the proceedings
during
their trial before the Honourable Justice Leeuw, due to the failure
refusal, and/or neglect by various functionaries of
the state to
provide, within a reasonable time, a complete and judicially revised
and approved copy of the proceedings to the plaintiffs;
those
functionaries of the State include the Honourable Justice Leeuw, the
Registrar of the North West Division of the High Court
of South
Africa, Mahikeng Justice Centre and the transcription service
provides.”
1.3
The plaintiffs
have failed to join the Mahikeng Justice Centre as a party to the
proceedings and in circumstances where it has a
direct and
substantial interest in the subject matter of the plaintiffs’
claim.
1.4
The plaintiffs
have also failed to join the transcription service providers as a
party to the proceedings. WHEREFORE the defendant
prays that the
plaintiffs’ claim be dismissed with costs on this ground
alone.”
11.
The defendant submits that the plaintiffs have failed to allege
any
specific grounds on which the Minister could be said to be
vicariously liable for the conduct or actions of the other parties
referred to in paragraph 6, 13.1 and 13.2 of the particulars of
claim. They further argue for the citation the Mahikeng Justice
Centre, transcription service providers, namely, Sneller Verbatim
(Pty) Ltd who were later replaced by Rencey Smit T/A L &
C Typing
Services, and the Registrar of the North West Division of the High
Court.
THE EXCEPTION ARGUMENT
12.
Counsel for the plaintiff submit that the argument presented
by the
defendant’s Counsel is a mere rehash of the submissions before
Justice Tuchten who adjudicated upon an exception raised
by the
defendant in which it was alleged that the particulars of claim are
vague and embarrassing. Defendant’s riposte to
plaintiff is
that the Tuchten decision on that matter did not involve the hearing
and adjudication on the issues of misjoinder
and non-joinder as a
special plea.
13.
Rule 10 (3) of the
Uniform Rules of Court
provides as follows:
“
Several
defendants may be sued in one action either jointly, jointly and
severally, separately or in the alternative, whenever the
question
arising between them or any of them and the plaintiff or any of the
plaintiffs depends upon the determination of substantially
the same
question of law or fact which, if such defendants were sued
separately, would arise in each separate action.”
14.
A reading of the grounds of the exception and the contents
of Rule 10
(3) demonstrates that we are dealing with different legal
considerations in each case and that Justice Tuchten’s
decision
in which he found that the exception as framed on behalf of the
defendant had no merit and dismissed it with costs cannot
assist in
the determination of the present matter.
15.
The plaintiffs have sought to rely on the decision
Alves
v LOM Business Solutions (Pty) Ltd and Another
(GSJ)
[2011] ZAGPJHC 108;
2012 (1) SA 399
(GSJ);
[2011] 4 All SA 490
,
at p407, par [20] which according to the defendant is misplaced in
that, that decision is distinguishable from the present case.
I do
not agree.
16.
A brief examination of the facts of the
Alves decision shows that the case is relevant in the determination
of issues in the present
matter.
17.
In that case the plaintiff claimed damages
on the basis that the defendants were negligent in preparing the
transcript for his appeal
hearing resulting in his having to spend a
further unnecessary period of about fifteen (15) months in
incarceration. The first
defendant was the company which was
contracted to transcribe court records and the second defendant was
the Minister of Justice
and Constitutional Development who was
nominally cited as the member of the National Executive with the
overall responsiblity for
the administration of justice.
18.
Similary to the present case the plaintiff
had been indicted of murder and was convicted in the South Gauteng
High Court of attempted
murder on 13 December 2005. He had appealed
his conviction and sentence. The appeal was heard on 29 February 2008
and it was successful
with both conviction and sentence being set
aside.
19.
The plaintiff claimed in that case that the
long interval of time between the granting of the leave to appeal and
the hearing thereof
could be attributed to the negilgence of the
defendants in that they failed to ensure that an appeal record was
prepared within
a reasonable time.
20.
A direct parallel to be drawn from the
Alves decision is that the first defendant was the contracted
transcriber which was not only
cited as first defendant but which had
to defend itself credibly and extricate itself from liability.
21.
Section 316
(7) (b) of the
Criminal
Procedure Act
51 of 1977
as amended
(the
Criminal Procedure Act), provides
:
“
(b)
If an application under subsection (1) for leave to appeal is granted
and the appeal is
under
section 315(3)
to be heard by the full court
of the High Court from which the appeal is made, the registrar shall
without delay prepare a certified
copy of the record, including
copies of the evidence, whether oral or documentary, taken or
admitted at the trial, and a statement
of the grounds of appeal:
Provided that, instead of the whole record, with the consent of the
accused and the Director of Public
Prosecutions, copies (one of which
must be certified) may be prepared of such parts of the record as may
be agreed upon by the
Director of Public Prosecutions and the accused
to be sufficient, in which event the judges of the full court of the
High Court
concerned may nevertheless call for the production of the
whole record.”
22.
In my view,
Section 316
of the
Criminal Procedure Act
disposes
of any submissions or assumptions about the official responsible for
the preparation of the record. That the registrar is a functionary
in
the department of the defendant goes without saying.
23.
In paragraph 23 of Alves the following was said:
“
[23]
The purpose of the statutory obligation imposed on the registrar to
prepare a record of appeal in criminal matters is, in my
respectful
view, expressed with admirably succinct accuracy and clarity by
Erasmus J in
S
v Manyonyo
[1997
(1) SACR 298
(E)
(1996 (11) BCLR 1463)
]
where the learned
judge said:
‘
The
reason for the statutory insistence on the expeditious despatch of
records on review is generally to promote the speedy and
efficient
administration of justice, but in particular to insure that an
accused is not detained unnecessarily in cases where the
court of
review sets aside the conviction or reduces the sentence.’”
24.
No case has been made out for the joinder of the Chief Justice,
the
Secretary General of the OCJ, the Mahikeng Justice Centre and Justice
Leeuw.
Section 316
(supra) is quite explicit regarding the officer
responsible for the preparation and production of a case record.
THE TRANSCRIBERS
NON-JOINDER
25.
Bearing in mind what I have already said about the citation
of the
first defendant in the Alves matter, I now proceed to consider the
position of the transcribers in the present matter.
26.
Defendant’s Counsel submits that the plaintiffs’
allegations of ‘failure, refusal, and/or neglect’ to
provide them timeously with a complete record of the proceedings
is
also attributable to two other separate entities which are private
companies, namely, Sneller Verbatim (Pty) Ltd and/or Ms Rencey
Smit
t/a L & C Typing Services.
27.
It is further submitted that on plaintiffs’ own version
as
contained in paragraph 13.2 these two entities are private companies
who were operating as independent contractors and whose
relationship
with the defendant was founded on the basis of a contract.
Consequently, their liability or otherwise for the alleged
omission
or negligence cannot be assumed to lie with the defendant but stand
to be assessed and determined based on the relevant
facts and the
relevant terms and conditions of the contracts entered into with the
defendant. It is presumed that Sneller Verbatiom
and L & C Typing
Services are possessed with a legal persona having the right to sue
and be sued in their own right.
28.
The basis on which the transcribers can be said to fall within
the
ambit of
Rule 10
(3)
(supra)
appears from a document filed by
the plaintiffs titled “Plaintiffs’ List of Admissions
Sought for Trial”:
“
The
plaintiffs received the purported record during or about May 2010 and
the record was materially incomplete in that the testimony
of accused
1,3,7 and 8 in the trial – within – a – trial was
missing. Also missing was the cross – examination
of accused 1
during his testimony in the main trial and the [entire/part of the]
testimony by accused 1 [first/second testimony]
and accused 3,7 and 8
in the trial.”
29.
It goes without saying that it is only the transcribers who
would be
the persons/companies to provide explanations with regard to the
above material omissions. The issues arising between
the plaintiffs
and the defendant would be the same as those between the plaintiffs
and the transcribing companies.
30.
In the circumstances I find that defendant has made out a case
of
non-joinder in regard to the transcribing companies.
MISJOINDER
31.
Defendant’s Counsel submits that the current defendant
has been
wrongly cited in the proceedings. There is no merit in this
submission. The defendant is cited in his capacity as a member
of the
Executive responsible for the administration of justice in the
Republic of South Africa. The Registrar of the High Court
falls under
his authority and there is therefore no misjoinder. The position of
the defendant is put beyond any doubt when the
findings of the Court
in Alves matter are considered. In that case it was held:
“
That
the Minister owed a duly to appellants in the position of the
plaintiff to ensure that records were prepared for the hearing
of an
appeal within a reasonable time. The constitutional rights of the
plaintiff could not be rendered nugatory by unreasonable
delays in
the offices for which the Minister was responsible (Paragraph [22] –
[21] at 407 B – D).”
ORDER
32.
In light of the above, I make the following order:
33.
The special plea of non-joinder is upheld in regard to the
transcribers,
namely Sneller Verbatim (Pty) Ltd and/or Ms Rencey Smit
t/a L&C Typing Services.
34.
Plaintiffs are granted leave to amend their summons within 20 days of
this order.
35.
The special plea of misjoinder is dismissed.
36.
Costs will be costs in cause.
SELBY BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Matter
Heard On
: 15 February
2021
Judgment
Reserved On
: 15
February 2021
Judgment
Delivered On
: 18
February 2021
APPEARANCES:
Counsel
for the Plaintiffs
: Adv.
L.S de Klerk [SC]
:
Adv D Thaldar
Attorneys
for the Plaintiffs
:
Gildenhuys Malatji Inc.
Counsel
for the Defendant
: Adv
Shakoane [SC]
:
Adv. D Mosoma
Attorneys
for the Defendant
: The
State Attorney