Mahlangu v Mahlangu and Another (1339/2020) [2020] ZAMPMHC 5 (14 May 2020)

IN THE HIGH COURT OF

SOUTH AFRICA

MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)

CASE NO: 1339/2020

ON 14 MAY 2020

BEFORE:

BRAUCKMANN AJ

In the matter between:-

BOYKIE

JOHN

MAHLANGU APPLICANT

AND

SEGANABO

GRATITUDE MAHLANGU FIRST

RESPONDENT

FIRST

NATIONAL

BANK SECOND

RESPONDENT

JUDGMENT

1. This is an ex parte application for certain relief, including the “freezing” of bank accounts held by Moremadi S Golden Projects CC CK 2009/033O71/23 (“The CC”).

2. Applicant, although he alleges that the funds he requests the Court to freeze belongs to the CC, failed to join the CC. The only parties are the members of the CC, as well as the bank (Second Respondent.

3. It is evident from the papers, and annexures thereto, that the bank account is held by the CC with second respondent. In the founding affidavit, the applicant states that R 258500.00 was transferred by first respondent to her personal account, and one of the prayers seeks freezing of the amount until the application is finalized.

4. From the founding affidavit it is clear that the CC has a direct and substantial interest in the application, but is not a party hereto. Failure to join an interested party is sometimes a fatal shortcoming, but the Court may in any event not grant an order in the absence of such party[1] It is interesting to note that in paragraph 1.2 of the founding affidavit it appears that “the Mpumananzi Group” might also have an interest in the present litigation.

5. A court, including a court of appeal, is entitled mero motu to raise the question of non-joinder to safeguard the interests of third parties. It is, however, important to distinguish between necessary joinder, where the failure to join a party amounted to a non-joinder, on the one hand, and joinder as a matter of convenience, where the joinder of the party was permissible and would not give rise to misjoinder, on the other hand. In cases of joinder of necessity a court could, even on appeal, mero motu raise the question of joinder to safeguard the interests of third parties and decline to hear a matter until such joinder had been effected or the court was satisfied that the third parties had consented to be bound by the judgment or waived their right to be joined.

6. The CC did not waive its right to be joined. The applicant might be so entitled to bring this application, but that does not mean that the CC should simply be ignored.

7. I am of the view that the CC is a necessary party, and should be joined. Failure to join the CC is not fatal in casu, and may be rectified by joining it.

8. Accordingly I make the following order:

The application is struck off.

_______

HF BRAUCKMANN

ACTING JUDGE

APPLICANT ATTORNEYS’s : Mohube Setsoalo

[1] “SA Riding for the Disabled Association v Regional Land Claims Commissioner: 2017 (5) SA 1 (CC) at 5A–D ‘[10] If the applicant shows that it has some right which is affected by the order issued, permission to intervene must be granted. For it is a basic principle of our law that no order should be granted against a party without affording such party a predecision hearing. This is so fundamental that an order is generally taken to be binding only on parties to the litigation. [11] Once the applicant for intervention shows a direct and substantial interest in the subject-matter of the case, the court ought to grant leave to intervene. In Greyvenouw CC this principle was formulated in these terms: “In addition, when, as in this matter, the applicants base their claim to intervene on a direct and substantial interest in the subject-matter of the dispute, the Court has no discretion: it must allow them to intervene because it should not proceed in the absence of parties having such legally recognised interests.” ’

[1] “SA Riding for the Disabled Association v Regional Land Claims Commissioner: 2017 (5) SA 1 (CC) at 5A–D

‘[10] If the applicant shows that it has some right which is affected by the order issued, permission to intervene must be granted. For it is a basic principle of our law that no order should be granted against a party without affording such party a predecision hearing. This is so fundamental that an order is generally taken to be binding only on parties to the litigation.

[11] Once the applicant for intervention shows a direct and substantial interest in the subject-matter of the case, the court ought to grant leave to intervene. In Greyvenouw CC this principle was formulated in these terms:

“In addition, when, as in this matter, the applicants base their claim to intervene on a direct and substantial interest in the subject-matter of the dispute, the Court has no discretion: it must allow them to intervene because it should not proceed in the absence of parties having such legally recognised interests.” ’