THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 668/2025
In the matter between:
CHRISTO JOHAN ROSE APPELLANT
And
THE NATIONAL PROSECUTING
AUTHORITY NO FIRST RESPONDENT
THE NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS NO SECOND RESPONDENT
ADV. S. M. MZINYATHI: ACTING DEPUTY
NATIONAL DIRECTOR HEAD–NPS THIRD RESPONDENT
Neutral citation: Rose v National Prosecuting Authority N O and Other s
(665/2025) [2026] ZASCA 91 (26 June 2026)
Coram: MATOJANE, GOOSEN and KOEN JJA and PHATSHOANE and
KOOVERJIE AJJA
Heard: 28 May 2026
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for the handing down of the
judgment are deemed to be 11:00 on 26 June 2026.
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Summary: Joinder – private prosecution – substantial and direct interest – private
prosecutor seeking the without-prejudice representations made by the accused to
the public prosecutor leading to the decision not to continue with the prosecution
– non-joinder of the accused was fatal – appeal dismissed.
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ORDER
On appeal from: Gauteng Division of the High Court, Pretoria (Neukircher J,
sitting as court of first instance):
The appeal is dismissed with costs.
JUDGMENT
Kooverjie AJA (Matojane, Goosen and Koen JJA and Phatshoane AJA
concurring):
Introduction
[1] The appeal raises a novel question of law: whether a private prosecutor
who has been furnished with a nolle prosequi certificate is entitled to obtain
representations made on a without -prejudice basis by an accused person to the
public prosecutor. That question does not fall to be determined. The appeal falters
at the threshold on a point of non-joinder, which is dispositive of the matter.
[2] The appeal lies against the order of the Gauteng Division of the High Court,
Pretoria (the high court), which dis missed the appellant’s application on the
merits. The high court found that the appellant was not entitled to the
representations. This appeal is with the leave of the high court. The relevant facts
are set out below.
Background
[3] The appellant, Mr Christo Johan Rose (Mr Rose), laid criminal charges
against Mr Elrico Esterhuizen (the accused). This resulted in the institution of
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criminal proceedings against the accused for attempted murder in the Regional
Court, Vryburg.
[4] After his court appearance, the accused made certain representations to the
Senior Public Prosecutor , which resulted in the withdrawal of the criminal
charges against him. On 9 October 2024, the Director of Public Prosecutions in
Mahikeng confirmed the Senior Public Prosecutor’s decision not to prosecute the
accused.
[5] The appellant initially sought such representations as well as the nolle
prosequi certificate from the Senior Public Prosecutor , Vryburg. Later, the
appellant requested the representations from the Director of Public Prosecutions,
Mahikeng, as well . The appellant further requested the Director of Public
Prosecutions, Mahikeng, to reconsider the Senior Public Prosecutor's decision not
to prosecute the accused and to provide reasons therefor.
[6] Since no response was forthcoming, on 11 February 2025 , the appellant
instituted an urgent application in the high court , requesting both the nolle
prosequi certificate a nd the representations. The parties agreed that the nolle
prosequi certificate would be furnished to the appellant. The Director of Public
Prosecutions then furnished the nolle prosequi certificate. The representations
were, however, withheld.
[7] On 22 April 2025, the appellant instituted a second urgent application, in
which he persisted in obtaining the representations. The high court proceeded to
determine the merits of the application and found that he was not entitled to the
said representations. It is the order of the high court in this application that forms
the subject matter of this appeal.
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[8] It is common cause that the appellant did not join the accused as a party in
the application before the high court. The respondents contended that the non -
joinder was fatal to the application as the accus ed had a direct and substantial
interest in the outcome.
[9] The appellant’s stance before the high court was that it was unnecessary to
do so. His view was that since a private prosecutor steps into the shoes of the
public prosecutor, he is entitled to have access to the representations made by the
accused.
[10] The high court did not determine this issue. However, it stated that the
accused has a substantial interest in the outcome of the application.
Issues for determination
[11] Two issues arise for determination. The first is whether the failure to join
the accused as a party renders the application fatally defective. The second, which
arises only if the first issue is resolved in the appellant’s favour, is whether a
private prosecutor is entitled to without -prejudice representations made by an
accused to a public prosecutor. For the reasons set out below, the first issue is
resolved against the appellant, and the second does not arise.
Analysis
Non-joinder
[12] On appeal , the respondents persisted with the non-joinder point. The
appellant maintained that the accused’s participation in these proceedings was
unnecessary, as the case turned on a question of law: whether a private prosecutor
stands on the same footing as a public prosecutor. If this principal proposition is
upheld, then there would be no reason why a private prosecutor should not be
privy to the representations . In his replying affidavit before the high court, the
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appellant contended that the dispute remains one between the respondents and
himself. Consequently, the accused would not suffer any prejudice if the relief
sought is granted. The appellant took no issue that the accused’s representations
were, in fact, made on a without-prejudice basis.
[13] The respondents, in their answering papers, inter alia, pleaded that: (a) the
accused was a necessary party and held a direct and substantial interest in the
order sought by the appellant. Such an order could not be brought into effect
without prejudicing the accused’s rights; (b) the representations were confidential
and submitted on a wi thout-prejudice basis; and (c) absent any waiver of legal
privilege, the respondents are not permitted to disclose the representations.
[14] The respondents premised their case on Clause 11.4 of the National
Prosecuting Authority Manual (the Manual),1 which stipulates that
representations made by the accused are to be treated as made without prejudice.
Consequently, the disclosure thereof by the respondents would be impermissible
in terms of s 41(6) of the National Prosecuting Authority Act 32 of 1998 (the
NPA Act).2
[15] It is settled law that a party that has a direct and substantial interest in a
matter should be joined. This Court in Gordon v Department of Health, KwaZulu-
1 The National Prosecuting Authority Manual, compiled in terms of Section 14 of the Promotion of Access to
Information Act 95 of 2000, Version 1.06. Clause 11.4 of the Manual reads:
‘An accused may also make representations with the NPA. In such circumstanc es, the representations will be
treated as having been made “without prejudice”.’
2 Section 41(6) of the NPA Act sets out that:
‘Notwithstanding any other law, no person shall without the permission of the National Director or a person
authorised in writing by the National Director disclose to any other person -
(a) any information which came to his or her knowledge in the performance of his or her functions in terms
of this Act or any other law;
(b) the contents of any book or document or any other item in the possession of the prosecuting authority;
or
(c) the record of any evidence given at an investigation as contemplated in section 28 (1), except-
(i) for the purpose of performing his or her functions in terms of this Act or any other law; or
(ii) when required to do so by order of a court of law.’
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Natal,3 held that if the order or judgment sought cannot be sustained or carried
into effect without necessarily prejudicing the interest of a party or parties not
joined in the proceedings, then that party or parties have a legal interest in the
matter and must be joined.
[16] In Johannesburg Society of Advocates and Another v Nthai and Others,4
this Court affirmed the approach in Gordon as well as the test to be applied in
non-joinder disputes. It expressed:
‘. . .[J]oinder of a party is necessary if that party has a direct and substantial interest that may
be affected prejudicially by the judgment of the court in the proceedings concerned. This court
has set out the test as follows:
“The issue in our matter, as it is in any non -joinder dispute, is whether the party sought to be
joined has a direct and substantial interest in the matter. 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.”’5
[17] A determination as to whether a party has to be joined does not depend on
the subject matter of the litigation but rather on how, and to what extent, the
court’s order may affect the interests of such party. Hence, the test is whether a
party has a direct and substantial interest in the subject matter of the action that
the court’s judgment may prejudice.
[18] This Court, in Lottostar (Pty) Ltd and Others v Ithuba Holdings (Pty) Ltd
and Others,6 affirmed the aforesaid proposition and expressed:
‘As Fagan AJA pointed out in Amalgamated Engineering Union v Minister of Labour 1949 (3)
SA 637 (A) at 656:
3 Gordon v Department of Health, Kwazulu-Natal 2008 [2008] ZASCA 99; 2008 (6) SA 522 (SCA); [2009] 1 All
SA 39 (SCA); 2009 (1) BCLR 44 (SCA); [2008] 11 BLLR 1023 (SCA); (2008) 29 ILJ 2535 (SCA) para 9
(Gordon).
4 Johannesburg Society of Advocates and Another v Nthai and Others [2020] ZASCA 171; 2021 (2) SA 343
(SCA); [2021] 2 All SA 37 (SCA).
5 Ibid para 31.
6 Lottostar (Pty) Ltd and Others v Ithuba Holdings (Pty) Ltd and Others [2023] ZASCA 119 para 13.
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“The question of joinder should surely 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”.
Indeed, as observed by the full court (per Cilliers AJ (Goldstein and Joffe JJ concurring) in
Rosebank Mall (Pty) Ltd v Cradock Heights (Pty) Ltd 2004 (2) SA 353 (WLD) para 37:
“There is a distinction between the case of a party whose rights are derived purely from ‘the
right which is the subject-matter of the litigation’ and in which he has no legal interest, on the
one hand, and the case where the third party has a right acquired aliunde the right which is the
subject-matter of the litigation and which would be prejudicially affected if the judgment and
order made in which he was not a party were carried into effect . . .”’
[19] More recently, i n Road Accident Fund and Others v Hlatshwayo and
Others,7 this Court, seized with the issue of the non-joinder of the Board, stated
that:
‘In dealing with the issue of personal costs against the CEO and the Board, it is perhaps
convenient to start with the order against the Board. The order of the full court was assailed on
the basis that there was a material non-joinder of the Board. It is trite that joinder of a party is
required where such a party may have direct and substantial interest in the subject matter of the
action.’
It further referred to Snyders and Others v De Jager and Others ,8 where the
Constitutional Court, in emphasising the importance of the audi alteram partem
rule, expressed:
‘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. In that case, the person should be
joined in the proceedings. If the person is not joined in circumstances in which his or her rights
or interests will be prejudicially affected by the ultimate judgment that may result from the
or interests will be prejudicially affected by the ultimate judgment that may result from the
proceedings, then that will mean that a judgment affecting that person’s rights or interests has
been given without affording that person an opportunity to be heard. That goes against one of
the most fundamental principles of our legal system. That is that, as a general rule, no court
may make an order against anyone without giving that person the opportunity to be heard.’9
7 Road Accident Fund and Others v Hlatshwayo and Others [2025] ZASCA 17; [2025] 2 All SA 333 (SCA)
para 29.
8 Snyders and Others v De Jager and Others [2016] ZACC 54 2017 (5) BCLR 604 CC.
9 Ibid para 9.
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[20] The non-joinder point remains an insurmountable obstacle for the
appellant. It was fatal to the application from the onset. The accused has a direct
and substantial interest in the outcome of the application. He is the author of the
without-prejudice represent ations, and his response is material to the
determination of the merits. He made the representations on the understanding
that they were on a without prejudice basis and would be protected from
disclosure.
[21] His interests would be prejudicially affected by the ultimate judgment that
may result in this matter. He has a fundamental right to be heard and should have
been joined in the proceedings. The non-joinder issue had to be disposed of before
the substantive issue could be traversed.
[22] The underlying purpose of joining the accused in this matter was also to
allow him to consider waiving his privilege against self-incrimination. The
respondents are not permitted to disclose the representations made by the accused
under s 41(6) of the NPA Act. The decision to disclose the representations lies
with the accused. If he decides to waive privilege, it would be the end of the
matter.
Appropriate relief
[23] In a belated attempt to ward off the consequences of the appeal's outcome,
the appellant submitted that, in the event this Court upholds the non-joinder point,
the appeal should not be dismissed. He reasoned that striking the matter off the
roll would be appropriate as the order would enable him to join the accused and
have the matter enrolled for the determination of the merits.
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[24] The practical difference between striking a matter off the roll and dismissal
is that in the case of dismissal, the matter is disposed of and can no longer be set
down on the roll again. If the applicant wishes to proceed with the matter, he must
initiate the proceedings de novo. On the other hand, striking a matter off the roll
has nothing to do with the merits of the case. It is not aimed at terminating the
proceedings but merely suspends the hearing thereof pending an application for
reinstatement.10
[25] The issue of non -joinder as a dispositive ground of appeal is not novel.
This Court has recognised that the failure to join parties having a direct and
substantial interest in the outcome of litigation may be fatal to the proceedings.
In Gold Dividend 339 (Pty) Ltd and Another v ABSA Bank Limited 11, this Court
found that the non-joinder of the creditors in the business rescue proceedings was
fatal to the relief sought by the bank and accordingly upheld the appeal.12
[26] It is appreciated that the outcome of a matter depends on the specific facts
of that matter. By way of example , in Prinsloo v Majiedt NO and Another
(Prinsloo),13 the non-joinder point was raised mero motu for the first time on
appeal. This court upheld the appeal on this point raised, but directed that the
matter be dealt with in the high court. This Court expressed that:
‘The proceedings on the separated issue before the high court suffered from the fatal non-
joinder of Mrs Prinsloo. The parties should have realised, in committing to the agreement for
the determination of the issue separated, that Mrs Prinsloo should be joined as a necessary
party. The appeal therefore must be upheld.’14
10 See J.M.M and Another v Cara Dorothy Masureik and Others [2026] ZASCA 1; [2026] 1 All SA 259 (SCA)
para 36, where this Court discussed the distinction between striking a matter off the roll and dismissal and cited
with approval Turner and Another v Ntintelo and Another [2023] ZAWCHC 51 para 62.
with approval Turner and Another v Ntintelo and Another [2023] ZAWCHC 51 para 62.
11 Golden Dividend 339 (Pty) Ltd and Another v Absa Bank Limited [2016] ZASCA 78 para 10.
12 See also Kransfontein Beleggings (Pty) Ltd v Corlink Twenty Five (Pty) Ltd 2017 JDR 1577 (SCA) para 16.
13 Prinsloo v Majiedt N.O and Another 2025 JDR 2398 (SCA).
14 Ibid para 21.
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[27] In Amalgamated Engineering Union v Minister of Labour ,15 the non-
joinder issue was raised and argued at the appeal stage . The debate centred on
whether the Durban City Council should have been joined. Both parties held the
view that the matter should proceed on the merits without the City Council’s
input. This Court was not convinced and directed that the City Council respond.
It acknowledged that since the point was raised on appeal, it would be financially
and practically expedient to stand the matter over to ascertain the City Council’s
view, particularly to either consent to the judgment being handed down or
indicate otherwise.
[28] The facts in this matter are distinguishable from the circumstances
illustrated in the aforesaid matters. In this instance, the application before the high
court was defective since its inception. The appellant took a firm stance on the
joinder of the accused and persisted in that view on appeal. The appellant was at
all relevant times aware of the high court’s view that the accused had a substantial
interest in the matter , as well as the fact that the respondents had intended to
persist with this issue on appeal . Despite the se indications, the appellant
maintained his stance throughout.
[29] In Kransfontein Beleggings (Pty) Ltd v Corlink Twenty Five (Pty) Ltd and
Others,16 this Court took into consideration the fact that non-joinder was raised
in the previous hearing and expressed:
‘It thus follows that the non-joinder of Corlink’s other creditors was fatal to the amended relief
sought by the applicant for non-joinder. Since the question of joinder had been raised at the
previous hearing and since the applicant had taken a deliberate decision not to join other
creditors, I do not think that the court a quo was required to afford the applicant a further
opportunity to join the other creditors.’
15 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A).
15 Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A).
16 Kransfontein Beleggings (Pty) Ltd v Corlink Twenty Five (Pty) Ltd and Others [2017] ZASCA 131 para 16.
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[30] In these circumstances , the appropriate order would be to dismiss the
appeal. If the appellant wishes to persist with the matter, he is not barred from
instituting a fresh application de novo.
Costs
[31] The appellant is unsuccessful on appeal and must bear the costs. The
respondents have not demonstrated any basis for a costs order employing two
counsel. The appeal was resolved on a procedural point . The issues, while not
without complexity, did not requi re the engagement of both senior and junior
counsel. No special circumstances have been placed before the Court that would
justify a departure from the default position of one counsel.
Order
[32] In the premises, I make the following order:
The appeal is dismissed with costs.
H KOOVERJIE
ACTING JUDGE OF APPEAL
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Appearances
For appellant N Jagga
Instructed by: Kotze Louw & Swanepoel Attorneys
Incorporating Venter, Booysen & Ferreira, Vryburg
Pieter Skein Attorneys, Bloemfontein
For respondents: M Mphaga with B T Moeletsi
Instructed by: State Attorney, Pretoria
State Attorney, Bloemfontein.