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2024
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[2024] ZAECMHC 64
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Njuguna v Minister of Home Affairs and Others (3088/2024) [2024] ZAECMHC 64 (27 August 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION – MTHATHA)
Reportable/Not
Reportable
Case no.: 3088/2024
Matter heard on: 08
August 2024
Judgment delivered on:
27 August 2024
In the matter between:
MARTIN IRUNGU
NJUGUNA
Applicant
And
THE MINISTER OF HOME
AFFAIRS
1
st
Respondent
MR JUBASE, THE
MAGISTRATE, FLAGSTAFF
2
nd
Respondent
THE HEAD OF
IMMIGRATION, LUSIKISIKI
3
rd
Respondent
MRS MATANDABUZO, THE
IMMIGRATION
OFFICER
4
th
Respondent
JUDGMENT
ZONO AJ
Introduction
[1]
This applicant approached this court for an order that is divided
into two parts.
Part A of the application was brought on urgent
basis. In terms of the notice of motion the application in Part A
would be heard
on 30
th
July 2024. On 30
th
July
2024 the application was postponed to 06
th
August 2024 and
the respondents were directed to file their answering affidavit.
[2]
On 06
th
August 2024 the respondents served their answering
affidavit deposed to by Nomzolisa Siyanda Jelashe at 10:35 and
thereafter filed
same on record. The deponent describes herself as
Head of Immigration in Lusikisiki in the OR Tambo Region, Eastern
Cape. The court
could not have had sight of the answering affidavit
on 06
th
August 2024 and the parties agreed on a court
order directing the applicant to file replying affidavit and both
parties were directed
to file their respective heads of argument by
the end of day on 07
th
August 2024. The matter was
postponed for full hearing on 08
th
August 2024. The matter
was indeed fully heard on 08
th
August 2024.
[3]
The main relief the applicant is seeking in Part A is couched in the
following terms:
“
4.
Ordering the immediate release of the applicant from detention at
Bizana Correctional
Centre (Awaiting Trial Prisoner Section) or where
he is detained, pending the final determination of the review of the
decision
to detain him as contemplated in Part B of the notice of
motion and his obtaining of Asylum seeker status as contemplated in
the
Refugees Act 130 of 1998
.”
[4]
It is inherent in this relief that the applicant is detained in
Awaiting Trial Prisoner
Section at Bizana Correctional Centre. It is
unequivocally clear in the founding and replying affidavit that the
Commissioner of
Oath is Head or an Official of Bizana Correctional
Centre. When the founding and replying affidavit was attested to, the
applicant
was detained in and was in the control of the Bizana
Correctional Centre. Mtshoba was a Correctional Officer who signed
the affidavits
as a Commissioner of Oath. Differently put, the
applicant took an Oath before Mtshoba Z in Bizana Correctional
Centre.
[5]
It is not without significance that a relief with similar effect is
sought by the
applicant in Part B in the following terms:
“
1.
Reviewing and setting aside the second respondent’s decision of
15
th
July 2024 refusing applicant’s release from detention in order
to enable him to prosecute his application for Asylum.
4.
Declaring unlawful the continued detention of the applicant at Bizana
Correctional
Centre (Awaiting Trial Prisoner Section) or wherever
applicant is detained after he communicated his intention to apply
for Asylum
to third respondent on 26
th
June 2024.”
Non-Joinder
[6]
While release of the applicant from the Prison cells is sought, it is
indeed true
that the lawfulness of applicant’s detention at
Bizana Correctional Centre is, by necessary implications, in issue.
That
attack can appropriately be directed at the institution
detaining the applicant, which is Bizana Correctional Centre. It is
the
Bizana Correctional Centre that has the keys of the Prison Cell
from which the applicant has to be released.
[7]
During the hearing of this matter, I invited the parties to make
submission about
the non-joinder of Head of the Bizana Correctional
Centre as a party who is in charge of the detention facility and in
whose control
the applicant is. That point is accompanied by the
provisions of Section 2(1) of the State Liability Amendment Act 14 of
2011 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 nominal defendant or respondent.
[8]
Applicant’s Counsel strongly submitted to the effect that the
Head of the Correctional
facility
[1]
or any Other relevant Official representing the Correctional Centre
is not a necessary party as the court order directing the cited
or
joined respondents can significantly be carried into effect without
prejudicing the Head of or relevant Official the Correctional
Centre.
In the same vein it was conceded in the oral submissions by the
applicant’s Counsel that, the applicant is detained
in the
Bizana Correctional Centre.
[9]
I invited the parties to make oral submissions on this point being
mindful of the
fact the point was not expressly or pertinently raised
in the papers. I even made invitation to parties to deliver their
supplementary
written submissions if they so wish. Invitation was not
heeded by any of the parties. I have no doubt in my mind that the
issue
of non-joinder of Head or relevant Official of the Bizana
Correctional Centre and the Minister of Correctional Services is
apparent
on the papers as I have demonstrated in the preceding
paragraphs.
[10]
Ngcobo
J
in
Cusa
[2]
held thus:
“
These
principles are, however, subject to one qualification. Where a point
of law is apparent on the papers, but the common approach
of the
parties proceeds on a wrong perception of what the law is, a court is
not only entitled, but is in fact also obliged, mero
motu, to
raise the point of law and require the parties to deal therewith.
Otherwise, the result would be a decision premised on
an incorrect
application of the law. That would infringe the principle of
legality.
Accordingly,
the Supreme Court of Appeal was entitled mero motu to raise
the issue of the Commissioner’s jurisdiction
and to require
argument thereon. However, as will be shown below, on a proper
analysis of the record, the arbitration proceedings
in fact did not
reach the stage where the question of jurisdiction came into play.”
[11]
In
Fischer
Theron
[3]
observed
as follows:
“
13.
… There may also be instances where the court may mero motu
raise a question of law that emerges fully from the evidence
and is
necessary for the decision of the case. That is subject to proviso
that no prejudice will be caused to any party by its
being decided…”
[12]
A party or organ of state
[4]
in
whose custody the inmate is kept, becomes a necessary party to the
proceedings, because there is no one who can appropriately
comply
with the court order, if an order releasing the inmate is granted. It
is generally known that remand or detention facilities
detain the
inmate in terms of a warrant of detention signed by the judicial
officers, authorizing them to detain the inmate. It
is prejudicial to
the detention facility to be ordered in their absence to release the
inmate when it lawfully detained him in
terms of the warrant of
detention, which has not been set aside or otherwise cancelled. It
must be borne in mind that the instant
proceedings are not directed
at impugning the validity of the detention warrant authorizing the
detention facility to detain the
inmate.
[13]
For, it is well settled in our law that until a decision is set aside
by a court in proceedings
for judicial review, it exists in fact and
it has legal consequences that cannot simply be overlooked.
[5]
The organ of state or facility reposed with a power or duty to keep
in custody an inmate is a necessary party when the release
of that
inmate is an issue to be decided. It is quintessentially the same
organ of state keeping the inmate in custody who must
be saddled with
a duty to release the inmate.
[14]
Non-joinder is the failure of a plaintiff to join a particular
defendant with another when he
is suing, in circumstances in which
the law requires that both should be sued together.
[6]
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.
[7]
The
Rule is that any person is a necessary party and should be joined if
such person has a direct and substantial interest in any
order the
court might make, or if such an order cannot be sustained or carried
into effect without prejudicing that party.
[8]
[15]
Accountability is a central value of our Constitution. This means
that our law must be developed
and interpreted in a manner that
ensures that all bodies exercising public power are held accountable.
However, it also means that
courts should be slow to infer the
delegation of power to bodies that cannot be held directly
accountable through ordinary political
process.
[9]
[16]
I am, a matter of law, precluded from considering whether a case has
been made out for the grant
of the relief being sought.
[10]
I have no discretion to exercise until all the necessary parties are
before court.
[11]
In
Khumalo
Milne J
[12]
remarked
as follows:
“
Once
it is shown that a party is a necessary party in the sense that he is
directly and substantial interested in the issues raised
in the
proceedings before the court and his rights may be affected by the
judgment of the court, the court will not deal with those
issues
without such a joinder being effected and no question of discretion
nor of convenience arises.”
[17]
I am disposed to follow a long line of authorities or decisions where
the courts refused to hear
matters without joinder of all the
necessary parties. Those decisions are binding on me.
[13]
I
am left with no option but to postpone the matter.
[18]
The applicant is liable to pay costs occasioned by the postponement
of the matter. The nature
of the relief sought in the notice of
motion should have informed and guided the applicant to see that the
relief about his release
cannot be carried into effect without the
participation of the detention facility and its executive authority
in the proceedings.
Order
[19]
In the result I make the following order:
[19.1]
Part A application is hereby postponed sine
die pending the joinder
of the Head of Bizana Correctional Centre or any other relevant
functionary in the Correctional Centre
and the Minister of
Correctional Services in terms of Section 2(1) of the State Liability
Amendment Act 14 of 2011.
[19.2]
The applicant is hereby ordered to pay costs
occasioned by the
hearing of the matter on 08
th
August 2024 on an opposed
scale.
Zono AJ
Acting Judge of the
High Court
APPEARANCES:
For
the Applicant
:
Adv Mbiko
Instructed
by
:
MANITSHANA ATTORNEYS INC
27
Delville Road
Mthatha
Tel:
047 050 0988
Cell:
0731926718/0607676575
E-mail
:
manitshana9@gmail.com
(Ref:
MR MANITSHANA/MARTIN IRUNGU NJUGUNA)
For
the Respondents
:
Adv.Maliwa
Instructed
by
:
STATE ATTORNEY
Broadcast
House
No
94 Sission Street
Fortgale
Mthatha
(Ref:835/24-A6S)
[1]
The executive authority is by implication included
[2]
CUSA v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC);
2009 (1) BCLR1 (CC);
2009 (1) BLLR 1
(CC); (2008) 29 ILJ Z2461 (CC)
Para 67
[3]
Fischer v Ramahlele
2014 (4) SA 614
(SCA) at 620C-621C Para 13
[4]
Section 239 of Constitution
[5]
Ouderkraal Estates (Pty) Ltd v City of Cape Town and others
2004 (6)
SA 222
(SCA) Para 26
[6]
Erasmus Superior Court Practice, 2
nd
Edition Vol
2 Page D1-124
; Mgatyelwa v Minister of Police and
another (1174/2016) [2024] ZAECMHC 13 (19 March 2024)
[7]
Henri Viljoen (Pty) Ltd v Awerbuch Bros
1953 (2) SA 151
(O) at
168-170
[8]
Amalgamated Engineering Union v Minister of Labour
1949 (3) SA 637
(A) at 659
[9]
AAA Investments (Proprietary) Limited v Micro Finance Regulatory
Council and another
[2006] ZACC 9
;
2007 (1) SA 343
(CC) Para 89
[10]
Du Preez v Du Preez (3619/2022) [2024] ZAECQBHC 4 (30 January 2024)
Para 13
[11]
Nyume and another v Walter Sisulu University and others (580/19)
[2-119] ZAECMHC 13 (20 February 2019) Para 12
[12]
Khumalo v Wilkins and another 1972 (4) SA 407 (N) 457 A-B
[13]
True Motives 84 (Pty) Ltd v Madhi
[2007] ZACC 23
;
2008 (4) SA 367
(CC) Para 100-101