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[2019] ZALMPPHC 17
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Moela and Others v Phasha and Others (915/2018) [2019] ZALMPPHC 17 (30 April 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES/
NO
(3)
REVISED.
CASE
NUMBER: 915/2018
30/4/2019
In
the matter between:
CASTER
MPATSAKGOMO MOELA AND 34 OTHERS APPLICANTS
AND
MATHOPE
JACKSON PHASHA AND 13 OTHERS
RESPONDENTS
JUDGEMENT
KGANYAGO
J
[1]
The
applicants have brought an application against the respondents
seeking an order that they intervene in the main application
as
co-applicants. The respondents are opposing the applicants’
application.
[2]
The applicants alleges that they are members of Roka-Makgalanoto
traditional community, and that
the first to the thirteenth
respondents are trustees of Roka-Makgalanoto Community Trust.
According to the applicants, the trust
has been established for the
benefit of the entire community.
[3]
The applicant in the main application Phokeng Daniel Shai is seeking
an order that the first to
thirteen respondents be ordered to fully
account to trust beneficiaries being members of Roka–Makgalanoto
traditional community
by delivering the financial accounting books
and records for the period 2011 to 2017.
[4]
The applicants in the present application are alleging that they are
the direct beneficiaries
of the trust as they belong to
Roka-Makgalanoto traditional community. According to them they are
having a direct and substantial
interest in the main application.
They allege that the first to thirteenth respondents have committed
breach of their duties as
trustees by failing to account to them and
the entire community as the trust beneficiaries despite being
requested to do so on
numerous occasions.
[5]
The respondents in their answering affidavit have raised three points
in limine
. The first point
in limine
is that the
applicants lacks legal interest and
locus standi
, the second
one is alleged failure to follow the proper procedure, and third one
is alleged failure to follow Promotion of Access
to Information Act
no 2 of 2000 (PAIA). On merits the respondents denies that this is an
application for intervention. According
to the respondents the
applicants have brought this application to circumvent the obstacle
that the applicant in the main application
has encountered. They
submit that the applicant in the main application has realised that
in his answering affidavit he has stated
that he was not authorised
by the “so called” beneficiaries to bring that
application. So this application is just
a strategy to rectify that
onerous slip-up.
[6]
With regard to the first point
in limine
, the respondents
submit that the applicants are not beneficiaries of the trust and on
that basis they lack the necessary legal
interest and
locus standi
in this application. The test which must be applied is whether the
applicants have a direct and substantial interest in the subject
matter of the litigation, that is a legal interest in the subject
matter of the litigation which may be affected by the decision
of the
court. (
See Pheko and Others v Ekhurhuleni Metropolitan
Municipality (No 2) [2015] ZACC at paragraph 56)
[7]
In determining what constitute direct and substantial interest Mlambo
JA as he was then, in
Gordon v Department of Health, KwaZulu-Natal
[2008] ZASCA 99
;
2008 (6) SA 522
(SCA) at 529 c-f said
:
“…
In
the Amalgamated Union case (supra) it was found that the question
joinder should … not depend on the nature of the subject
matter… but on the manner in which, and the extent to which
the court’s order may affect the interest of third parties.
The
court formulated the approach as first to consider whether the third
party would have locus standi to claim relief concerning
the same
subject matter, and then to examine whether the situation could arise
in which, because the third party had not been joined
any order the
court might make would not be res judicata against him, entitling him
to approach the courts again concerning the
same subject-matter and
possibly obtain an order irreconcilable with the order made in the
first instance. This has been found
to mean that if the order or
judgment sought cannot be sustained or carried into effect without
necessary prejudicing the interests
of a party or parties not joined
in the proceedings, then that party or parties have a legal interest
in the matter and must be
joined.”
[8]
The applicants in this matter are capable and have
locus standi
to bring their own separate application seeking the same orders as
the applicant in the main application. If they were to follow
that
route, the risk is that they might obtain an order which might be
irreconcilable with orders which might be made in the main
application. The respondents themselves have stated in their
answering affidavit in the main application that the applicant was
not authorised by “so-called” beneficiaries to bring that
application. That on its own shows that the applicants in
the
intervening application have direct and substantial interest in the
subject matter of the litigation.
[9]
In
Judicial
Service Commission v Cape Bar Council
2013 (1) SA 170
(SCA)
Brand JA
held
that it is settled law that the joinder of a party is only required
as a matter of necessity as opposed to a matter convenience
if that
party has a direct and substantial interest which may be affected
prejudicially by the judgment of the court in the proceedings
concerned. The respondents by alleging in the answering affidavit in
the main application that the applicant needed the authority
of
“so-called” beneficiaries to initiate his application,
demonstrate that there is a risk of the applicants’
rights
being prejudicially affected by an order issued in the main
application (
See
Morudi and Other v NC housing Services and Development Co Limited and
Others
[2018] ZACC 32).
[10]
I therefore conclude that the applicants have a direct and
substantial interest in the outcome
of the main application and have
also
locus standi
to bring this application. It therefore
follows that the respondents’ first point
in limine
stand to fail.
[11]
Regarding the second and third points
in limine
, in my view
are not relevant to the determination of an intervention application.
The applicants are not yet parties to the litigation,
and they have
not yet fully put their version before court. In my view, the
respondent’s two remaining points
in limine
are
premature and stand to fail.
[12]
In the result I make the following order.
12.1 The respondents’
points
in
limine
are dismissed with costs.
FM. KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR THE
APPLICANT : MR PF
PHASHA
INSTRUCTED BY
: PHOKOANE PHASHA ATTORNEYS
COUNSEL FOR THE
RESPONDENT : MR MP CHIDI
INSTRUCTED BY
: MAMMULE CHIDI ATTORNEYS
DATE OF HEARING
: 11 MARCH 2019
DATE OF JUDGEMENT
: 30
TH
APRIL 2019