SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT)
Not reportable
Case no. EL279/2022
In the matter between:
A[...] J[...] obo
B[...] J[...] Plaintiff
and
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF EDUCATION, EASTERN CAPE Defendant
JUDGMENT
LAING J
[1] This matter concerns a special plea within the context of an action for
damages. The plaintiff has sued in her own capacity and as the mother of her son, B,
who was previously a learner at Southernwood Primary School, KuGompo City (East
London). On 15 May 2019, an employee of MFP Office Automation was installing a
CCTV camera in one of the classrooms. He fell through the ceiling and landed on top
of B, who had been seated at his desk. The accident caused B to bite off his tongue.
The child is disfigured and has sustained severe psychological damage. The plaintiff
alleged that the educators at the school were responsible for the care and safety of
learners. They had been negligent in failing to prevent the incident.
[2] The defendant raised a special plea of non -joinder, asserting that MFP Office
Automation has a direct and substantial interest in the outcome of the matter. The
plaintiff replicated, alleging that it was unnecessary to have joined the entity;
alternatively, MFP Office Automation had been acting as the defendant’s agent at the
time.
[3] The parties requested that the special plea be determined at the outset. In this
regard, the defendant called the principal of the school to testify about the
appointment of MFP Office Automation. For immediate purposes, it suffices merely to
remark that the witness confirmed that the school had appointed the entity as an
independent service provider to supply and install the CCTV cameras required.
[4] Van Loggerenberg observes that non-joinder is the failure of a plaintiff to join a
defendant with another, being sued, in circumstances where the law requires that
both be sued together. 1 The learned writer summarises the relevant principles as
follows:
‘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. A mere financial interest is an indirect
interest and may not require joinder of a person having such interest. The mere fact that a
interest and may not require joinder of a person having such interest. The mere fact that a
party may have an interest in the outcome of the litigation does not warrant a non -joinder
plea. 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 that the court might make, or if such an
1 D E van Loggerenberg Erasmus: Superior Court Practice RS 25 (2024) D1 Rule 10–2.
order cannot be sustained or carried into effect without prejudicing that party, unless the
court is satisfied that he has waived his right to be joined.’2
[5] In Matjhabeng Local Municipality v Eskom Holdings Ltd and Others ,3 the
Constitutional Court dealt with the subject within the context of contempt of court
proceedings. Nkabinde ADCJ, emphasized that:
‘At common law courts have an inherent power to order joinder of parties where it is
necessary to do so even when there is no substantive application for joinder. A court could,
mero motu, raise a question of joinder to safeguard the interest of a necessary party and
decline to hear a matter until joinder has been effected. This is consistent with the
Constitution.
. . . The law on joinder is well settled. No court can make findings adverse to any person’s
interests, without that person first being a party to the proceedings before it. The purpose of
this requirement is to ensure that the person in question knows of the complaint so that they
can enlist counsel, gather evidence in support of their position, and prepare themselves
adequately in the knowledge that there are personal consequences — including a penalty of
committal — for their non-compliance. All of these entitlements are fundamental to ensuring
that potential contemnors’ rights to freedom and security of the person are, in the end, not
arbitrarily deprived.’4
[6] Returning to the present matter, counsel for the defendant contended that the
special plea should be determined with reference to the possible delictual liability on
the part of MFP Office Automation. In other words, argued counsel, the entity was
required to account for the conduct of its employees so that the court could decide
whether it was the sole cause of the damages incurred or whether liability should be
apportioned. If MFP Office Automation was not joined, then such conduct could go
unquestioned in circumstances where it was the fons et origo , as counsel put it, of
these proceedings.
these proceedings.
2 Op cit, RS 27 (2025) D1 Rule 10–3 to 10–4. Footnotes omitted.
3 2018 (1) SA 1 (CC).
4 Paras 91 and 92.
[7] The court disagrees. In Myeni v Organization Undoing Tax Abuse NPC ,5
Tolmay J reiterated that a plaintiff is entitled to choose the defendant from a group of
wrongdoers.6 In the present matter, the plaintiff has framed her case in terms of the
pleadings, directing her claim at the defendant, no -one else. Nothing prevents her
from doing so. There is a risk that the claim proves unsuccessful, but this is a risk
that the plaintiff appears to have accepted by the time that pleadings were closed.
She was not obliged to have joined MFP Office Automation or any other possible
joint wrongdoer.
[8] In the oft -quoted authority of Amalgamated Engineering Union v Minister of
Labour,7 the erstwhile Appellate Division held, per Fagan AJA, that the question of
joinder should not depend on the nature of the subject matter of the claim. Instead, it
depends on the manner in and extent to which an order may affect the interests of
third parties. 8 More recently, in Bowring NO v Vrededorp Properties CC and
Another,9 the Supreme Court of Appeal, per Brand JA, restated the position as
follows:
‘The substantial test is whether the party that is alleged to be a necessary party for purposes
of joinder has 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.’10
[9] The court in the present matter is simply enjoined to determine whether the
plaintiff can demonstrate that the defendant is liable in delict for the accident that
occurred during the installation of CCTV cameras. An order for the defendant to pay
damages will have no impact whatsoever on MFP Office Automation. The order will
have no adverse consequences for the entity in question, requiring that it first be
joined before the court can decide the case. Likewise, there will be no prejudice to
the defendant if the special plea is not upheld. It may still be open to the defendant to
the defendant if the special plea is not upheld. It may still be open to the defendant to
apply for leave to seek a contribution from MFP Office Automation, as envisaged
under section 2 of the Apportionment of Damages Act 34 of 1956. Similar provisions
5 2019 JDR 2599 (GP).
6 Para 70. See, too, Ross and Another v Nedbank Limited 2023 JDR 3265 (GJ), paras 7–9.
7 1949 (3) SA 637 (A).
8 At 657.
9 2007 (5) SA 391 (SCA).
10 Para 21.
are available in terms of the third -party procedure contained under rule 13 of the
Uniform Rules of Court.
[10] Consequently, the court is not persuaded that MFP Office Automation has a
direct and substantial interest in the subject matter of the case, which would be
adversely affected by the court’s decision. Regarding costs, the general rule must be
applied. Scale B is appropriate.
[11] In the circumstances, the following order is made:
(a) the special plea of non-joinder is dismissed; and
(b) the defendant is ordered to pay the plaintiff’s party -and-party costs, at
scale B.
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
APPEARANCES
For the plaintiff: Adv Sotenjwa
Instructed by: L. V. Mtima Attorneys
58 Union Street
Roof 24, 2nd Floor, Old CNA Building
EAST LONDON
Tel: 079 174 8181
Ref: WF/AFJ/E848
Email: lvmtima@gmail.com
For the defendant: Adv Miya
Instructed by: The State Attorney
Old Spoornet Building
17 Fleet Street
Quigney
EAST LONDON
Ref: 239/22-P10-(Mrs Ncula)
Dates heard: 30 July 2025 and 17 March 2026.
Date delivered: 5 May 2026.