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[2012] ZAFSHC 30
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Sherenisa and Others v Minister of Safety and Security and Another (2394/09) [2012] ZAFSHC 30 (1 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
CASE NO. 2394/09
In
the matter between:
FATIMA SHERENISA
…..................................................
1
st
PLAINTIFF
NELISWE SENGOANE
…..............................................
2
nd
PLAINTIFF
ISAK TENKI MARITI
…...................................................
3
rd
PLAINTIFF
And
MINISTER OF SAFETY
AND SECURITY
…......................................................
1
st
DEFENDANT
THE MINISTER OF
JUSTICE
….................................
2
nd
DEFENDANT
_____________________________________________________
CORAM:
NAIDOO, AJ
_____________________________________________________
HEARD ON:
15
FEBRUARY 2012
DELIVERED ON:
1
MARCH 2012
RULING ON ADMISSIONS
and NON-JOINDER IN PLEADINGS
_____________________________________________________
NAIDOO AJ
[1] This matter was set
down on the trial roll for hearing before me on 14, 15 and 17
February 2012. As a result of points being
raised
in limine
I
reserved judgement. These are my rulings.
[2] The plaintiffs sued
the defendants for damages arising out of their unlawful arrest and
detention by servants of the first defendant,
as well as damages
arising out of their prosecution by employees of the second
defendant, which prosecution the plaintiffs allege
was malicious.
[3] It is common cause
that the plaintiffs were detained in custody from 6 September 2005 to
4 September 2008. A criminal trial
ensued and concluded on 4
September 2008. It is not in dispute that the plaintiffs were found
not guilty and discharged in terms
of section 174 of the Criminal
Procedure Act 51 of 1977 (the CPA)
[4] The matter came
before this court for the hearing of the trial, but before the trial
commenced, Mr Mphaga who represents the
defendants in this matter,
indicated that he wished to raise a point of law and argued that the
National Director of Public Prosecutions
(NDPP) is a necessary party
to this action, as a result of the decision to prosecute the
plaintiffs in the criminal trial, which
prosecution is a subject
matter of this action. He argued further that the Minister of
Justice, the second defendant in this matter,
is not responsible for
any decision to prosecute any person. Thus he is not liable for the
prosecution in this matter and should
not be a party to these
proceedings. The NDPP is responsible for taking decisions to
prosecute, and he is accountable to Parliament
for the policies,
decisions and activities of the National Prosecuting Authority (NPA).
The latter also has its own budget and
is an entity different from
the second defendant. Mr Mphaga also argued that the admissions in
paragraphs 5 and 10 of the plea
are not to be taken into account by
the court as they are not sound in law. I therefore, understand Mr
Mphaga’s argument
to be that, firstly there was misjoinder of
the second defendant and a non-joinder of the NDPP,and secondly that
the second defendant
is not bound by the admissions which I have
mentioned and which were made in the plea.
[5] The plaintiffs, in
paragraph 5 of the particulars of claim, allege that the second
defendant, the Minister of Justice, is cited
as such because of his
responsibility for the Department of Justice and the National
Prosecuting Authority (NPA). In paragraph
10, of the particulars of
claim, the plaintiffs allege that at all relevant times to this
matter, the members of the NPA who were
responsible for the
prosecution of the plaintiffs in court, acted within the scope of
their duties as officials of the Department
of Justice and that
second defendant is vicariously liable for their actions. The
defendants, in paragraphs 5 and 10 of their plea,
admit paragraphs 5
and 10 of the particulars of claim.
[6] I pause at this point
to mention that the plaintiffs did attempt to amend their particulars
of claim, by way of a notice in
terms of Rule 28 of the Uniform Rules
of Court dated 18 January 2012, by substituting the NDPP for the
second defendant. The defendants
then filed a notice in terms of Rule
30 of the Uniform Rules dated 2 February 2012, complaining that this
was an irregular step
in that Rule 10 and not Rule 28 of the Uniform
Rules set out the only procedure for the amendment envisaged by the
plaintiffs.
The plaintiffs’ notice of intention to amend was
withdrawn shortly before the proceedings commenced on 13 February
2012.
Mr Benade, who is representing the plaintiffs, pointed out,
during his address to court, that the defendants filed a notice to
amend their plea in respect of the admissions regarding the liability
of the second defendant. In effect the amendment sought to
retract
the admissions that were made. The plaintiff objected to this, and it
appears the proposed amendment was not pursued by
the defendants. The
defendants did not dispute Mr Benade’s assertions. The relevant
documents do not appear to have been
filed in the court file.
[7] Mr Benade argued that
the second defendant was indeed bound by the admissions made in the
plea, and could not amend the plea
or retract the admissions without
an application being made to court, on notice to all affected
parties. He further offered the
explanation that the plaintiffs
withdrew their notice of intention to amend because it was not
necessary to join the NDPP in the
light of the admission of vicarious
liability made by the second defendant
[8] An amendment to
pleadings is usually done on notice to the opposing party and in the
case of an opposition to the amendment,
a substantive application for
such amendment is brought before the court. The usual procedure by
which to raise the issue of joinder,
whether it is non-joinder or a
misjoinder, is by way of a plea in abatement, although it has been
held that an objection in terms
of Rule 30 of the Uniform Rules may
also be permissible.
(See Erasmus: Superior Court Practice page
B1-96).
In the present matter these procedures were not followed
as Mr Mphaga raised the issues from the Bar, without any objection
from
the plaintiffs.
[9] In their plea, the
defendants raised two special pleas, one of prescription and the
other of non-compliance with Act 40 of 2002.
The plea was filed on 7
September 2009. It is not clear when the issue of joinder began to
occupy the attention of the defendants’
legal representatives,
but a cryptic recording in paragraph 9.1 in the minute of the Rule 37
Conference, which was held on 28 October
2010, alludes to an intended
amendment by the defendants. No details are given as to what was
intended to be amended, what information
was given to the plaintiffs
to consider or what special plea the defendants intended to
introduce. The very brief reference by
Mr Benade during his address
to court that the defendants intended to amend their plea may well be
a reference to what was referred
to in paragraph 9.1 of the Rule 37
minute. It appears, therefore, that it was the intention of the
defendants to raise the issue
of non joinder for a considerable
period prior to the matter coming before this court for hearing.
[10] The reality of the
present situation is that the issues of the amendment to the plea and
of non-joinder of the NDPP and misjoinder
of the second defendant are
before this court in the manner I have indicated, albeit that there
was ample time for the legal representatives
of the defendants to
have followed the correct procedure, as stipulated in the Rules, to
bring these matters before the court.
While this court is entitled to
direct that the defendants take the necessary steps to ensure that
the matters are properly enrolled
in compliance with the Rules before
they are heard, I am of the view that this would have the effect of
causing a considerable
delay in the hearing thereof, with resultant
prejudice to the parties, especially the plaintiffs. As I have
indicated, the plaintiffs
do not appear to have any objection to
these issues being heard. In the interests of allowing a proper
ventilation of issues and,
more importantly, ensuring that justice is
done, I propose to deal with the issues raised.
[11] I shall deal first
with the issue of the admissions made by the second defendant in the
plea. In this regard it is useful to
refer to the provisions of
section 15 of the Civil Proceedings Evidence Act 25 of 1965 which
stipulates that;
“
It
shall not be necessary for any party in any civil proceedings to
prove nor shall it be competent for any such party to disprove
any
fact admitted on the record of proceedings”
As matters stand, there
is no affidavit before this court to explain that the admissions were
made in error and explaining how such
admissions came to be made. It
is expected of the defendants to have placed the affidavit before
this court by way of a substantive
application for the amendment of
the plea accordingly
.
It
is somewhat surprising therefore that Mr Mphaga asks this court
,
from the Bar, to disregard the admissions made by
the second defendant. In this regard, see the matter of
Secprop
30 Investments (Pty) Ltd v South Coast Furnishers CC
[2010] JOL 25526
(KZD)
, where the learned judge
Mnguni
J
cited with approval the case of
Sliom
v Couzyn
1927 TPD 438
at 441.
In the latter
case
,
the learned
judge
Tindall J
said
“…
If
a similar admission had occurred in a pleading in a trial case, it is
clear that leave would not have been given to withdraw
the admission,
in the absence of evidence explaining the circumstance under which
the admission was made.”
This is exactly what
pertains in the present case. The second defendant seeks to withdraw
admissions made in the plea without any
explanation of the
circumstances under which such admissions came to be made. In the
circumstances, such a withdrawal is not permissible.
[12] The defence of
non-joinder or misjoinder, being merely dilatory, must be taken
initio litis,
before issue is joined. It cannot be raised for
the first time at the trial. See
Rabinowitz and Another NNO v
Ned-Equity Insurance Co Ltd and Another 1980(3) 415 (WLD) at p419
E-F.
No finding of misjoinder
or non-joinder can be made at this stage.
[13]
RULING
1. The defendants are
bound by the admissions, made in their plea, of the allegations in
paragraphs 5 and 10 of the particulars
of claim;
2. No finding of
non-joinder or misjoinder is made;
3. The defendants are
ordered, jointly and severally, to pay the costs of the hearing on 14
and 15 February 2012;
4. The plaintiffs are
given leave to apply to the Registrar for a new trial date;
5. This case is not
partly- heard before me, and can be set down before any judge of this
Division.
____________
NAIDOO, AJ
Counsel for Plaintiff:
Mr HJ Benade
Instructed by
Symington & De Kock
169 Nelson Mandela Drive
Bloemfontein
Counsel for the
Defendant: Mr M Mphaga
Instructed by:
State Attorney
11
th
floor
Fedsure Building
49 Maitland Street
Bloemfontein