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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG OIV1SION, PRETORIA
( 1 ) RE PO RT ABLE: NO
(2) OF INTERESl TO OTHER JUDGES: N
/3) REV ISED.
TEBOGO FLORINA MARY MAHLANGU
FANNIE DANIEL MAHLANGU
And
MINISTER OF POLICE
RICHARD TOBANE
CASE NO:59487/2023
First Plaintiff
Second Plaintiff
First Defendant
Second Defendant
Delivered' This Judgment is handed down electronically by circulation to the Par-
1:0s/their legal representatives by email and by uploading to Case/Ines. The date and bme of hand-dow, • "'
'rJ IS v'eemed to be 14. ·oo 017 15 September 2025.
JUDGMENT
LENYAI J
[1] In this matter the Court is required to adjudicate on a special plea of non-joinder
raised by the first defendant.
[2] The plaintiffs brought an action against the defendants arising from an incident
where the first plaintiff's sons Kgaogelo and Bonolo Mahlangu were assaulted
by the second defendant and three men namely, Billy Zondi, Joshua Makgatho
and Godfrey George Mnisi. Kgaogelo Mahlangu succumbed to his injuries and
passed on the same day, and his brother Bonolo was admitted to hospital. All
the four men were convicted for murder and attempted murder and are serving
their respective sentences except for Billy Zondi who has since passed away.
[3] Initially the State Attorney defended the matter on behalf of both defendants
but later withdrew as attorneys of record for the second defendant.
[4] The plaintiffs instituted action against the defendants with the first plaintiff ini
tially being Bonolo Mahlangu, who was then substituted by his mother, Mrs
Mahlangu after his death recently. The claim of the first plaintiff is in respect of
the following:
4.1 Past hospital and medical expenses incurred;
4.2 General damages for the unlawful arrest and detention
[5] The second plaintiff who is the father, also sought damages for himself in re
spect of the following:
5.1 Emotional shock suffered;
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5.2 Funeral Expenses incurred.
[6] The first defendant raised a special plea that the plaintiffs have failed to join,
Joshua Makgatho, Godfrey Mnisi and the estate of the late Billy Zondi as parties
to the action, since they have a direct and substantial interest in the order which
the Court is likely to make in the event that they succeed with their claim.
[7] The basis of this special plea is that the four have all been found guilty of the
murder of Kgaogelo Mahlangu and the attempted murder of Bonolo Mahlangu,
and on this basis they are all liable for any damages that the Plaintiffs have
suffered.
[8] The plaintiffs argued that they are not seeking anything from, Joshua
Makgatho, Godfrey Mnisi and the estate of the late Billy Zondi. They submit that
non joinder arises where another party has a direct and substantial interest in
the matter, which is determined by the relief sought. A party can only be said to
have direct and substantial interest in the matter if the relief sought cannot be
sustained and carried into effect without prejudicing their interest.
[9] The plaintiffs submit that they are only seeking relief against the two defendants
and not against the three convicted persons, and therefore the relief sought
does not impact on the three convicted persons and as a result they do not
have a direct and substantial interest in the main legal action.
[1 O] The plaintiffs also argued that they are entitled to choose their defendant from
a group of wrong doers.
[11] It is trite that a plaintiff can elect to sue only one of several potential defendants
who contributed to the harm, a principle known as "choosing your defendant". I
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am of the view that the plaintiffs have acted well within their rights in choosing
the defendants and nothing impedes them to do so.
[12] In the matter of Gordon v Department of Health, Kwa-Zulu Natal [2008]
ZASCA 99; 2008 (6) SA 522 (SCA) at para 9 the court stated that:
"if the order of judgment sought cannot be sustained and carried into effect
without necessarily prejudicing the interests' of a party or parties not joined to
the proceedings, then that party or parties have a legal interest in the matter
and must be joined."
[13) Turning to the matter before the court, I am of the view that the relief sought
against the defendants can be sustained and carried into effect without neces
sarily prejudicing the interests of the three convicted persons referred to by the
first defendant, and as a result they do not have a direct and substantial interest
in the matter and there is no need to join them.
[14) Under the circumstances the following order is made:
1. The special plea of non-joinder is dismissed with costs on scale B.
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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Appearances
Counsel for Plaintiffs
Instructed by
Counsel for First Defendanrt
Instructed by
Adv F Kabini
Mongwadi Mchale
Adv DD Mosoma
State Attorney, Pretoria
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