(1) Reportable : NO
(2) Of interest to other Judges: NO
(3) Revised: YES
Signature : 1 . .3 Z
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 042870/2022
In the matter between:
DR MOTHOBI GODFREY KEELE
and
MAGISTRATE MRS JANINE JANSEN VAN RENSBURG
DR MBALI ZAMATHIYANE KEELE
COMMISSION FOR GENDER EQUALITY Applicant
First Respondent
Second Responden t
Third Respondent
This judgment is issued by the Judge whose name is reflected hereon. This judgment
is handed down electronically by circulation to the parties by email and by uploading
it to the electronic file of this matter on Case Lines. The date of judgment is deemed
to be the date upon which it is uploaded onto Case Lines.
JUDGMENT
GEACH,AJ
[1] Applicant , who appeared in person, seeks interlocutory orders "that in relation
to ('iro') the Report [entitled: "When Relations Disentangle , assessing factors
prohibiting unmarried , divorced, or separated biological fathers from exercising their
parental rights, including contact with their children", produced by the third
respondent] , CGE [the third respondent] is joined as the Third Respondent in
the applicant's application under Case No 2022-42870" and: "In line with
section 187(2) of the Constitution the CGE to assist (i.e. 'report' and/or 'advise')
this Honourable Court iro its 'research' ..... ". Under that Case No 2022-42870 ,
in the main application , the applicant seeks primarily an order reviewing and
correcting a ruling by first respondent dated the 12th of August 2022 pertaining
to an ongoing marital and custodial dispute between the applicant and the
second respondent ; applicant's principal complaint in that application being the
denial of access to his minor children. As articulated by applicant: "this joinder
application arises from a review application ... in respect of a pending divorce
action and frustration of contact between me and my minor children for more
than one thousand days in which unfounded and unsupported allegations of
abuse were used including in an affidavit as a reason for such frustration ; the
allegations have since been dropped".
[2] In addition, applicant asserts violation of his Constitutional right to dignity in the
proceedings . The right to dignity is guaranteed in section 10 of the Constitution.
Not only is dignity one of the foundational values of our democratic state, it is
also an entrenched fundamental right. It is entwined with the right to equality.
[3] The present interlocutory application is opposed by the third respondent. There
is no appearance on behalf of either the first or the second respondents.
[4] Rule 10(3) empowers the joinder of several defendants in one action 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. The provisions of Rule 10(3) apply to applications by virtue of
Rule 6(14).
[5] The legal principles regarding applications for a joinder were enunciated by
Nkabinde J (dissenting) in National Union of Metal Workers of South Africa v
lntervalve (Pty) Ltd and others (2015) 36 /LJ 363 (CC) at par 186 as follows:
"The test at common law is governed by the following principles : (a) there must
be a legal interest in the proceedings and not merely a financial interest. (b) a
party has a right to ask that someone be joined as a party 'if such a person has
a joint propriety interest with one or either of the existing parties to the
proceedings or has a direct and substantial interest in the court's order' and 'to
avoid a multiplicity of actions and a waste of costs'.".
[6] The applicant refers to section 187 of the Constitution , highlighting that the third
respondent "must promote respect for gender equality and the protection ,
development and attainment of gender equality".
[7] It is contended by the applicant that the joinder of third respondent is required
as a matter of necessity , equating third respondent's Constitutional obligation
to a substantial interest in the review application. However, notwithstanding the
Constitutional imperative of the third respondent as stipulated in section 187 of
the Constitution, it cannot be held that the third respondent has any "direct and
substantial interest", i.e. a legal interest, in the subject matter of the pending
review (see Old Mutual Life Assurance Co SS Ltd v Swemmer 2004 (5) SA
373 (SCA) at 381; Transvaal Agricultural Union v Minister of Agricultural and
Land Affairs 2005 (4) SA 212 (SCA) at 226-7; Gordon v Department of Health
Kwazulu-Natal 2008 (6) SA 522 (SCA) par [9] at 529 and par {11] at 530); nor,
for that matter, in the litigation in the lower court between the applicant and the
second respondent. "A person has a direct and substantial interest in an order that
is sought in proceedings if the order would directly affect such a person's rights or
interest" (Snyders and Others v De Jager (Joinder) (CCT186 /15) [2016] ZACC
54; 2017 (5) BCLR 604 (CC) (21 December 2016) par {91). As the substantial
test is: whether the party that is alleged to be a necessary party for purposes of
joinder does have a legal interest in the subject-matter of the litigation, which
may be affected prejudicially by the judgment of the Court in the proceedings
concerned (Bowring NO v Vrededorp Properties CC and another 2007 (5) SA
391 (SCA) par [21] at 398; Judicial Service Commission and another v Cape
Bar Council and another 2013 (1) SA 170 (SCA) par [12] at 176; ABSA Bank
Limited v Naude N.O (20264/2014) {2015] ZASCA 97 (1 June 2015) par {10];
South African History Archive Trust v South African Reserve Bank and another
2020 (6) SA 127 (SCA) par [30] at 138), the joinder herein of third respondent
has consequently not been shown by the applicant to be a matter of necessity.
[8] As was stated in J.C.S v J.J.S and others (82452/2015) [2021] ZAGPPHC 647
(16 September 2021) par [27]:
"Apart from a joinder out of necessity a court can join a party under the common
law on grounds of convenience , equity, the saving of costs and the avoidance
of multiplicity of actions. The court has the inherent power to order the joinder
of further parties in an action which has already begun in order to ensure that
that person's interest in the subject matter of the dispute and whose rights may
be affected by the judgment are before court."
[9] No right of the third respondent can conceivably be affected prejudicially by the
judgment of the court in the pending review application (Ploughman NO v Pauw
2006 (SA) 334 (C) at 341) and any order of that court can certainly be sustained
or carried into effect without prejudicing the third respondent in any way (See
Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at
659). There is no question of any multiplicity of actions. The applicant has failed
to persuade this court that there exist considerations of equity, savings of costs
or convenience sufficient to justify the joinder of third respondent in the pending
review application.
[1 O] As is succinctly stated in De Beers Consolidated Mines (Pty) Ltd v Regional
Manager Limpopo: The Department of Mineral Resources & Energy and others
2023 JDR 3383 (GP) par [11 OJ:
"Joinder is a procedure by which multiple parties or multiple causes of action are joined
together in a single action. There are two forms of joinder of parties: joinder of
convenience and joinder of necessity. In order for the applicant to succeed with an
application to join the respondent in necessity it should prove that the respondent has
a direct and substantial interest in the subject matter of the pending litigation [Ronnie
Dennison Agencies (Pty) Ltd tla Water Africa SA v SABS Commercial Soc Ltd
(10136/14) [2014) ZAGPPHC 998 (19 December 2014)). A party is joined of
convenience because there is a legal tie between the party to be joined and the
applicant, which on the ground of equity, the saving of costs, or the avoidance of
multiplicity of actions, the Court will deem it in the interest of justice that the matters
should be heard together [Rabinovich and others NNO v Med: Equity Insurance Co
Ltd 1980 (3) SA 415 (VV) at 419 EJ'.
The applicant has failed to make out a proper case for the joinder herein of third
respondent on either of these bases. Possible concerns about the applicant's
undoubted Constitutional right to dignity cannot per se sway this court to grant
the unjustified relief sought. Counsel for the third respondent, at the suggestion
of this court, graciously indicated that he would request third respondent to
consider possibly being of assistance as an amicus curiae in the main
application going forward. Of course the decision whether or not to do so, rests
exclusively with the third respondent.
[11) In the premises, applicant's application for the joinder of the third respondent is
dismissed.
[12) Even the rule that costs follow the event is subject to the discretion of this court
regarding costs, provided such discretion is exercised judicially. Although the
applicant has been unsuccessful and this is certainly not Constitutional litigation
even though applicant professes to be asserting his fundamental right to dignity,
it seems nevertheless inequitable that he should be mulcted in costs. According
to its own website, the third respondent is a constitutional entity, relied upon to
strengthen constitutional democracy . There can be no doubt that applicant was
acting in good faith and is bona fide in his belief that the third respondent could
and should be required to assist in his endeavour to assert his dignity. It is plain
for all to see that the applicant who feels he was hard done by, is motivated by
a heartfelt need for contact with his children; and has a genuine desire to seek
justice. Having regard to the circumstances of this interlocutory application , it is
held to be just and equitable that there should be no order as to costs.
[13] Consequently: the applicant 's interlocutory application for the joinder of the third
respondent is hereby dismissed with no order as to costs.
BP GEACH
ACTING JUDGE OF THE HIGH COURT