Automated Summary
Key Facts
The applicants (Boyboy Oupa Pule and John Dingaan Madoda) sought to join the National Director of Public Prosecution (NDPP) as a defendant in a malicious prosecution case against the Minister of Police. The court dismissed the joinder application due to a fatal procedural defect: the NDPP was not cited as a respondent in the application despite seeking an order against them. The court emphasized that necessary parties must be formally cited to avoid prejudice and uphold constitutional rights to be heard. The applicants were ordered to pay the respondent's costs on Scale B, including counsel costs.
Issues
The court addressed whether the NDPP, who has a direct and substantial interest in the matter, could be joined as a defendant in the action despite not being cited in the joinder application. The applicants omitted citing the NDPP in their application for joinder, leading the Minister to oppose the application on procedural grounds. Legal principles from cases like Matjhabeng Local Municipality v Eskom and Lottostar v Ithuba Holdings were cited, emphasizing that courts cannot make adverse orders against parties not given an opportunity to be heard. The court held that the non-citation of the NDPP was fatal to the joinder application, as it deprived the NDPP of the right to defend against the order.
Holdings
- The applicants are ordered to pay the respondent's costs of the joinder application, jointly and severally, on a party and party basis according to Scale B, including the costs of counsel. This follows the general rule that costs should follow the event.
- The application for joinder of the National Director of Public Prosecution (NDPP) is dismissed due to the fatal defect of not citing the NDPP in the joinder application, as required by legal principles of joinder. The court emphasized that non-citation of a necessary party with a direct and substantial interest in the outcome constitutes a procedural defect that undermines the party's right to be heard.
Remedies
- The applicants shall pay the respondent's costs of the joinder application, jointly and severally, the one paying the other to be absolved, on party and party basis on Scale B.
- The application is dismissed.
- The costs shall include the costs of counsel.
Legal Principles
The court emphasized that no court may make an order against a person without giving them the opportunity to be heard, as this violates the principle of audi alterem partem (fair procedure). This principle is fundamental to ensuring that judgments affecting a party's rights are not issued without their participation, safeguarding freedom and security of the person under the Constitution.
Precedent Name
- Lottostar (Pty) Ltd and others v Ithuba Holdings (Pty) Ltd and Others
- Road Accident Fund and Others v Hlatshwayo and Others
- Matjhabeng Local Municipality v Eskom Holdings Limited
Judge Name
T C MOKHARE
Passage Text
- It is common cause between the parties that the NDPP has a direct and substantial interest in the matter. This being the case, it follows that the non-citation of the NDPP to the joinder application was fatal to the application itself.
- "A person has a direct and substantial interest in an order that is sought in proceedings if the order would directly affect such person's rights or interest. In that case the person should be joined in the proceedings."
- "The applicants did not even seek a postponement in order to cure this procedural defect so that the NDPP may be cited. The non-joinder or non-citation of a party that an adverse order is sought against, is not a matter of form but substance."