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[2018] ZAECMHC 66
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Gogwana v Mfobo and Another (588/2013) [2018] ZAECMHC 66 (27 November 2018)
IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION,
MTHATHA
Case No. 588/2013
In the
matter between:
CHUMA
GOQWANA
Plaintiff
and
NOXOLO
MFOBO
First defendant
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Second defendant
JUDGMENT
Brooks J.
[1] On 13 March 2013 the
plaintiff issued a combined summons against the defendants for the
recovery of damages which he alleges were suffered by him as a result
of certain conduct on the part of the first defendant, who
is a
magistrate and who is alleged to have been acting in the course and
scope of her duties in the employ of the second defendant.
[2] To the extent that it is
necessary to do so, the following elements of various allegations
made in the particulars of claim are highlighted:
·
On 6 June 2011 the first defendant presided in the regional
court for the Eastern Cape region held at Mqanduli;
·
a case based on charges of rape against the plaintiff, which
bore a 2009 case number, was struck from the roll by the first
defendant
due to the unavailability of state witnesses;
·
the plaintiff then sought leave to go home and informed the
first defendant that he was on bail in respect of other matters
bearing
2008 case numbers and that one of them was on the roll for
the same day;
·
the first defendant ordered that the plaintiff be detained
until the following court day in order to have bail in the 2008 cases
cancelled;
·
on 7 June 2011 and in order to satisfy the plaintiff’s
detention the first defendant prevailed upon the prosecutor to bring
“a sham application” for the cancellation of the
plaintiff’s bail;
·
the first defendant then presided over the application and
cancelled the plaintiff’s bail in all of the 2008 cases;
·
the cancellation of the plaintiff’s bail was contrary to
the provisions of
section 68
of the
Criminal Procedure Act 51 of 1977
and unlawful;
·
the plaintiff’s detention on 6 June 2011 was ordered
arbitrarily and for that reason was wrongful and unlawful;
·
the first defendant took the decision to cancel the
plaintiff’s bail on the day before the application was brought
and accordingly
the exercise embarked upon on 7 June 2011 was a sham
and an abuse of judicial authority aimed at clothing her order of the
previous
day with a veneer of legality;
·
as a result of the first defendant’s conduct the
plaintiff was kept in detention from 6 June 2011 until 18 May 2012, a
period
of 347 days, whereafter his release was ordered by the High
Court.
[3] Subsequent to service
of the combined summons the action was defended by both defendants.
[4] In due course
special pleas were served and filed in identical terms on behalf
of
both defendants.
[5] Two of the three
special pleas raised have been resolved between the parties
by the
application of appropriate mechanisms and are no longer in issue.
The remaining special plea, that of non-joinder,
is the subject of
this judgment.
[6] The special plea
is couched in the following terms:
“
1.
Plaintiff in his particulars of claim bases his claim for damages as
against both the
first and second defendants on alleged facts
enunciated and set out in paragraph 5 of the particulars of claim.
2.
In paragraph 5.3 of the particulars of claim the plaintiff has
alleged that the
first defendant had on “7 June 2011 and in
order to justify plaintiff’s detention… prevailed on the
prosecutor,
to bring a sham application for cancellation of his
(plaintiff’s) bail in other cases”.
3.
The allegations set out in paragraph 2 above gives an impression
and/or suggests
that the first defendant has allegedly acted
mala
fide
and/or
maliciously in concert with a prosecutor in her court.
4.
All prosecutors in the South African Judicial System fall within the
ambit and
control of the National Prosecuting Authority, which in
turn is governed by the National Prosecuting Authority Act, 1998 (Act
32
of 1998).
5.
From the above, the National Prosecuting Authority has a direct and
substantial
interest in these proceedings and should have been joined
as a party.”
[7] In support of the
special plea in argument, Mr
Sishuba
, who appeared on behalf
of the defendants, submitted that in cancelling the plaintiff’s
bail the first defendant was not
acting alone. The reason for
this submission was that the first defendant cancelled the bail
pursuant to an application brought
by the prosecutor and accordingly
“acted in concert with the prosecutor”. This was
the basis for the further
submission that in the circumstances the
National Prosecuting Authority “had a direct and substantial
interest in the action
and ought to have been joined as a party by
the plaintiff”.
[8] Mr
Sishuba
confirmed that upon a reading of the relevant portions of the
particulars of claim it was clear that the plaintiff targeted only
the decision of the first defendant as being the cause of his
detention and concomitant loss. However, the submission was
to
the effect that it would be convenient to have the National
Prosecuting Authority as a party to the action in order that the
prosecutor involved in the proceedings might be heard in response to
the plaintiff’s allegations.
[9] The legal principles
pertaining to the joinder of parties find concise expression in the
following extract from a judgment of Brand JA
[1]
delivered on behalf of the full court in the Supreme Court of Appeal:
“
It has by now become
settled law that the joinder of a party is only required as a matter
of necessity – as opposed to a matter
of 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 (see e g. Bowring NO v Vrededorp Properties CC
and Another
2007 (5) SA 391
(SCA) para 21). The mere fact that
a party may have an interest in the outcome of the litigation does
not warrant a non-joinder
plea. The right of a party to validly
raise the objection that other parties should have been joined to the
proceedings,
has thus been held to be a limited one (see e g Burger v
Rand Water Board and Another
2007 (1) SA 30
(SCA) para 7; and Andries
Charl Cilliers, Cheryl Loots and Hendrik Christoffel Nel
Herbstein
& Van Winsen The Civil Practice of the High Courts of South
Africa
5 ed vol 1 at
239 and the cases there cited).
”
[10]
Of equal importance is an understanding of what constitutes
a direct
and substantial interest. It is generally accepted that what is
required in order to constitute a direct and substantial
interest in
relation to the principles of joinder is “a legal interest in
the subject matter of the action which could be
prejudicially
affected by the judgment of the court”.
[2]
[11] In my view, from whichever angle
one approaches the allegations made in the particulars of claim
it is
clear that it is criticism only of the decision or decisions taken by
the first defendant which is relied upon as the basis
for the
plaintiff’s action. The only reference to the public
prosecutor in the particulars of claim is a statement
of fact alleged
by the plaintiff, namely that the first defendant “prevailed on
the prosecutor, to bring a sham application
for the cancellation of
plaintiff’s bail…”
[3]
[12] In the particulars of claim, the
intransitive verb “prevail” is used in the past
tense and
with the preposition “on”. This usage is dealt with
in the
Shorter Oxford Dictionary
as usage in a specialized
sense and the word is defined therein as follows:
“
prevail
on, prevail upon
succeed
in persuading, inducing or influencing
”.
It is to be assumed that in drafting the particulars of claim the
pleader made deliberate use of this particular word in order
to
convey a factual version. The use of the term “prevailed
on” accordingly conveys a sense of the first defendant
using
her more authoritative role in the proceedings to direct the
prosecutor to do something, possibly even against the latter’s
will or better judgment. This falls far short of the concept of
the first defendant “acting in concert with a prosecutor”,
which carries the connotation of a more active, willing and even
initiating participation on the part of the prosecutor.
Accordingly, the interpretation of the allegation in the particulars
of claim which is advanced in the special plea is erroneous.
Even if there is room for error in this interpretation of the
pleadings, the reality remains that it is only the behaviour and
the
decision or decisions of the first defendant which are targeted in
the particulars of claim. Nowhere is it suggested
that any
decision taken by the prosecutor is criticised by the plaintiff.
[13] It follows that any interest which
the National Prosecuting Authority might have in these proceedings
falls short of a legal interest which could be prejudicially affected
by the judgment of the court.
[14] Nothing stops the defendants from
calling the prosecutor as a witness if his or her evidence
would be
of assistance in their defence of the matter. This opportunity
might be excluded only if the plaintiff has already
approached the
prosecutor to give evidence on behalf of the plaintiff and the
prosecutor has agreed to do so. Indeed, these
are mechanisms by
which the convenience of hearing the prosecutor’s version of
events, being the element highlighted by Mr
Sishuba
, can be
achieved.
[15] In my view, there is no merit in
the special pleas of non-joinder.
[16] The following order will issue:
“1.
The special pleas of non-joinder are dismissed, with costs.”
RWN
BROOKS
JUDGE
OF THE HIGH COURT
Appearances:
For the plaintiff:
Adv M Jozana
Instructed by:
B Makade Incorporated
IDK Building
92 Sutherland Street
MTHATHA
For the
defendants:
Adv MH Sishuba
Instructed by:
The Office of the State Attorney
Broadcast House
94 Sissons Street
Fortgale
MTHATHA
Date
heard:
20 November 2018
Date of
delivery of the judgment:
27 November 2018
[1]
Judicial
Service Commission and Another v Cape Bar Council and Another
2013
(1) SA 170
(SCA)
par
[12]
[2]
Henri Viljoen (Pty) Ltd v
Awerbuch Brothers
1953
(2) SA 151
(O) 167;
Brauer
v Cape Liquor Licensing Board
1953 (3) SA 855
(C); and
Bohlokong
Black Taxi Association v Interstate Bus lines (Edms) Bpk
1997
(4) SA 635 (O) 642 A – C.
[3]
sub paragraph 5.3