REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
(I) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES:
NO I\
(3) REVISm YES -'-·
08 May 2026 - ' ~~ .,......,,l;l'--- -
DATE SIGNATURE
In the matter between:
KINGS AND QUEENS REAL FUNERAL SERVICES CC
and
MARYNA ESTELLE SYMES N.O.
GONASAGREE GOVENDER N.O.
ALPH LUKAU
ALLELUIA MINISTRIES INTERNATIONAL
CASE NO: 048387/2023
Applicant
First Respondent
Secon d Respondent
Proposed Third Respondent
Proposed Fourth Respondent
In re:
MARYNA ESTELLE SYMES N.O.
GONASAGREE GOVENDER N.O.
and
KINGS AND QUEENS REAL FUNERAL SERVICES CC
JUDGMENT
Mahosi J
First Plaintiff
Second Plaintiff
Defendant
[1] Kings and Queens Real Funeral Services CC ("the applicant") seeks an order
joining Mr. Alph Lukau and Alleluia Ministries International as third and fourth defendants
in the pending action instituted against it by the first and second respondents ("the
liquidators"). The liquidators oppose the application.
[2] On 03 September 2021, the applicant was placed under a creditor's voluntary
winding-up by special resolution in terms of section 349, read with sections 200 and 351
of the Companies Act1. On 11 April 2022, this court granted an order converting the KVH's
voluntary winding-up into a winding-up by the Court. On 14 April 2022, the first and second
respondents were duly appointed joint liquidators of KVH (in liquidation).
[3] On 23 May 2023, the liquidators issued a summons against the applicant to set
aside the payment amounting to R3 000 000.00 made to it by KVH between 11 and 12
June 2019 as impeachable dispositions under section 26(1 )(a) or section 30 of the
Insolvency Act2, alternatively as unjustified enrichment. The applicant filed a notice of
intention to defend on 01 June 2023 and its plea on 26 June 2023. Thereafter, the
liquidators filed a replication to the applicant's plea on 30 June 2023, and the pre-trial
minute was signed by both parties on 07 and 08 May 2024, respectively.
1 Act 61 of 1973, as amended .
2 Act 24 of 1936, as amended .
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[4] On 23 July 2025, the applicant filed a notice in terms of Rule 28(1) to amend its
plea, and on 25 July 2025, it filed its amended plea- in which it raises the following
defences:
"1ST SPECIAL PLEA OF NON-JOINDER
The Defendant avers that there has been a material non-joinder. The Defendant
avers that the true debtor in respect of the underlying transaction is Mr. Alph Lukau
and/or Alleluia Ministries, who is not joined as a party to these proceedings. The
Defendant had no contractual relationship with Kings Vision Holdings (Pty) Ltd
("KVH") and the sums paid were in discharge of a debt owed by Mr. Lukau
and/or
Alleluia Ministries, not a debt of KVH. The Defendant requests that the Court order
the joinder of these parties, and reserves the right to apply for non-joinder should
Plaintiffs fail to do so.
WHEREFORE DEFENDANT PRAYS THAT:
(a) The plaintiffs action be dismissed with cost including costs of counsel.
2ND SPECIAL PLEA OF PREMATURITY/ INCORRECT PARTY
The Defendant pleads that the action is premature and is directed against the
incorrect party. The Defendant avers that Plaintiffs have failed to properly
investigate the circumstance of payment, have not pleaded or proven the authority
of the party instructing payment from KVH's account and have not alleged or
proven any knowledge or intent on the part of Defendant as is required for relief
under sections 26 and 30 of the Insolvency Act.
WHEREFORE DEFENDANT PRAYS THAT:
The plaintiffs action be dismissed with cost including costs of counsel."
[5] In essence , the applicant avers that it had no contractual relationship with KVH. It
alleges that KVH made payments to it to discharge a debt owed by Mr. Lukau and Alleluia
Ministries International , and that this makes Alleluia Ministries International the true
debtors of KVH. It is for this reason that it contends that , by failing to sue Mr. Lukau and
Alleluia Ministries International , the liquidators committed a material non-joinder.
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[6] The applicant invokes Uniform Rule 10(3). read with Rule 6(7)(a) , as the legal
basis for the relief sought. It conten-ds that Mr. Lukau and Alleluia Ministries International
have a direct and substantial interest in the subject matter of the main action ; that the
same or substan tially the same questions of law and fact arise between the liquidators
and the proposed parties as arise between the liquidators and the applicant; and that it is
in the interests of justice to join them as additional defendants.
[7] The liquidators oppose the application on several grounds. Firstly, they argue that
Rule 1 0 is available only to a plaintiff and that a defendant cannot invoke it to compel the
joinder of further defendants. Secondly , they contend that they have no pending dispute
with Mr. Lukau or Alleluia Ministries International and seek no relief against them. As such ,
any judgment in the main action will be in personam and will not bind those parties , and
the proposed parties have no direct and substantial interest in the litigation. Thirdly, they
point to the inordinate delay in bringing the application, the imminent trial date , and the
substantial prejudice they will suffer if the trial is postponed . Fourthly, they submit that this
Court has no jurisdiction over Mr Lukau , who has left South Africa and has no attachable
assets within its area.
[8] Rule 6 of the Uniform Rules of Court regulates the conduct in applications . Subrule
6(7) (a) reads :
"Any party to any application proceedings may bring a counter-application or may
join any party to the same extent as would be competent if the party wishing to
bring such counter-application or join such party were a defendant in an action and
the other parties to the application were parties to such action. In the latter event.
the provisions of rule 10 will apply."
[9] Rule 10 of the Uniform Rules of Court provides for the joinder of parties and causes
of action , and surule 10(3) reads :
of action , and surule 10(3) reads :
"Several defendants may be sued in one action either jointly, jointly and severally,
separately or in the alternative, whenever the question arising between them or
any of them and the plaintiff or any of the plaintiffs depends upon the determination
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of substantially the same question of law or fact which , if such defendants were
sued separately, would arise in each separate action."
[1 0] The plain language of subrule 10(3) is permissive as to the plaintiff. It describes
the circumstances under which a plaintiff may sue multiple defendants in a single action.
It does not, in its terms, confer a right on an existing defendant to compel the addition of
new defendants. That is not to say that a defendant can never bring additional parties into
an action. Rule 13 provides a mechanism for a defendant who claims a right to
contribution or indemnity from a person not already a party, or who claims that any issue
in the action ought to be determined between the defendant and a third party. The
applicant has not invoked Rule 13. It has not been alleged that it is entitled to contribution
or indemnity from the proposed parties. Its case is that the proposed parties are the "true
debtors" and that the liquidators ought to have sued them, either instead of or together
with, the applicant. That is a defence, not a claim for contribution.
[11] The applicant seeks to rely on Rule 6(7)(a), which permits "any party to any
application proceedings" to join another party, with Rule 10 applying. That rule is confined
to "application proceedings". The main action here is an "action" proceeding, not an
application. Rule 6(7)(a) cannot be transplanted into action proceedings to create a
joinder right that does not otherwise exist. The proper approach is that a defendant who
wishes to bring in a third party who may be liable to the defendant or to the plaintiff must
do so under Rule 13, not Rule 10. The applicant has not attempted to follow that
procedure.
[12] Nevertheless, it is trite that the provisions of Rule 10(3) do not affect the
defendant's right to demand joinder of another party. In In Gordon v Department of Health,
KwaZulu-Nata/3 , the Supreme Court of Appeal held:
KwaZulu-Nata/3 , the Supreme Court of Appeal held:
' .. . The test is whether a party that is alleged to be a necessary party, has a legal
interest in the subject-matter , which may be affected prejudicially by the judgment
of the court in the proceedings concerned.' (Footnote omitted)
3 2008 (6) SA 522 (SCA)
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[13] The applicant referred this Court to Myeni v Organisation Undoing Tax Abuse NPC
and Others4, where the Court considered, inter alia, a similar misjoinder application.
Although the Court doubted whether the applicant's reliance on Rule 10(3) was legally
competent, it determined the defendant's right to join other parties under common law.
The Court said:
'[64] ... A party can only be said to have a direct and substantial interest in the
matter if the relief cannot be sustained and carried into effect without prejudicing
their interests.
[65] In Amalgamated Engineering Union, the Appellate Division explained
further that "[t]he question of joinder should ... not depend on the nature of the
subject-matter of the suit ... but ... on the manner in which, and the extent to which,
the Court's order may affect the interests of third parties."
[66] This means that the relief is decisive, not the facts or issues in dispute.
Even where a Court may be called on to make findings that are adverse to another
party, this does not establish grounds for non-joinder if the relief sought does not
adversely impact on that party's interests." Footnotes Ommitted.
[14] The above decision is not supportive of the applicant's case, as the court
determined that the respondents sought relief only against the applicant, meaning the
other Board Members had no direct interest in the case. The Court further said that while
they could be called as witnesses, their involvement in any alleged wrongdoing did not
affect the relief sought.
[15] In the current matter, the applicant faces several hurdles. Firstly, the liquidators
have no claim against Mr. Lukau or Alleluia Ministries International in this action. They
have chosen not to sue those parties. Any order this court makes in the main action will
determine whether the applicant is liable to restore the R3 million to KVH's estate. That
order will be in personam and will bind only the respondents and the applicant. It will not
order will be in personam and will bind only the respondents and the applicant. It will not
determine any rights or obligations of Mr. Lukau or Alleluia Ministries International. As
4 (15996/2017) [2019] ZAGPPH C 565 (2 December 2019)
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observed in Myeni, a person does not have a direct and substantial interest merely
because a judgment might have evidentiary consequences for that person in- later
proceedings.
[16] The applicant argues that findings of fact made in the main action could prejudice
the proposed parties. However, that is not enough. To be a necessary party, the third
party's legal position must be affected by the order itself, not merely by the reasons or the
findings of fact. The applicant's fear of "inconsistent findings" in separate proceedings is
a risk inherent in any litigation and does not, by itself, render the proposed parties
necessary parties. In the circumstances, Mr. Lukau or Alleluia Ministries International has
a direct and substantial interest in the main action.
[17] Secondly, the applicant has delayed inordinately and unexplainedly. It
foreshadowed its intention to seek joinder as early as 26 June 2023, more than two and
a half years ago. It repeated that intention in the pre-trial minutes of 06 May 2024 and its
amended plea of 25 July 2025. The liquidators have been on notice for a very long time.
However, the applicant waited until less than three months before the scheduled trial to
launch this application. In its replying affidavit, the applicant says it "had to gather
information and evidence" and that the matter was subject to "interlocutory proceedings".
However, no detail is given, and no explanation is offered for why this application could
not have been brought at least six months earlier. The liquidators have waited nearly two
years for a trial date. They are entitled to have their case proceed.
[18] Thirdly, the liquidators will suffer real and substantial prejudice if the joinder is
granted at this late stage. Joinder would require the proposed parties to be served and if
they enter an appearance, they would have to deliver pleas, make discovery, and attend
a fresh pre-trial conference. The trial date of 11 May 2026 would inevitably be lost. Given
a fresh pre-trial conference. The trial date of 11 May 2026 would inevitably be lost. Given
this court's backlog, a new trial date would not be earlier than 2027. That delay would be
profoundly prejudicial to the liquidators and, through them, to the creditors of KVH. By
contrast, the applicant's alleged prejudice, that it might be held solely liable without the
presence of the "true debtors", is not prejudice at all. It is simply a consequence of the
applicant's own defence. The applicant is free to argue that the payments were made on
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account of Mr. Lukau's debt and can subpoena him as a witness. This can provide
evidence of his role in the transaction. What it cannot do is force the liquidators to litigate.
against a party they have chosen not to sue.
(19] Fourthly, there is a serious question whether this court has jurisdiction over Mr.
Lukau. The liquidators assert, on oath, that Mr Lukau has left South Africa and that no
assets belonging to him are attachable in the country. The applicant dismisses this as
"hearsay and speculation" but provides no counter-affidavit from Mr. Lukau and no
evidence of his whereabouts or assets. Absent jurisdiction, any order joining him would
be futile.
[20] I am not persuaded by the applicant's argument that Rule 1 0 is a "neutral" provision
that any party may invoke. The rules of court create distinct procedures for different
situations. The applicant's remedy, if any, lay under Rule 13, and it is now far too late to
embark on that path.
(21] In all circumstances, the application for joinder is refused. The applicant has put
the liquidators to unnecessary expense on the eve of trial. There is no reason why costs
should not follow the result.
[22) Accordingly, the following order is made:
1. The application to join Mr. Alph Lukau and Alleluia Ministries International
as third and fourth defendants in the action under case number
2023-048387 is dismissed.
2. The applicant is to pay the costs of this application, inclu ing ~the costs of
counsel, on Scale C as between party and party.
D. Mahosi J
Judge of the High Court
Gauteng Division, Johannesburg
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Heard: 16 March 2026
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives through email. The date for hand-down is deemed to be 08 May 2026.
Appearances
For the plaintiff:
Instructed by:
For the defendant:
Instructed by:
Advocate J. Magodi
Sibanda Bukhosi Incorporated Attorneys
Advocate Gregory Amm SC
A. 8 . Scarrot Attorneys
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