Memudzivhadi and Others v Minister of Police and Others (002/2012, 003/2012, 215/2012, 216/2012) [2016] ZALMPTHC 3 (21 January 2016)

Memudzivhadi and Others v Minister of Police and Others (002/2012, 003/2012, 215/2012, 216/2012) [2016] ZALMPTHC 3 (21 January 2016)

The court held that, based on the Supreme Court of Appeal decision in Moleko, it is not necessary to join the Minister of Justice and Constitutional Development as a defendant in actions for unlawful arrest, detention, or malicious prosecution. The National Director of Public Prosecutions is the appropriate defendant for decisions to prosecute. The special plea of non-joinder of the Minister is dismissed. The special plea of misjoinder of the National Director of Public Prosecutions also fails, as does the plea regarding the control prosecutor. The third defendant, as the alleged wrongdoer, has a direct legal interest in the litigation and may be held personally liable in delict, with his...

Citation
[2016] ZALMPTHC 3
Parties
Plaintiff: TS Memudzivhadi; Plaintiff: Tshifhiwa Samuel Mashamba; Plaintiff: Tshilidzi Phineas Sogwadi; Plaintiff: Aluwani Stanley Mulaudzi; Defendant: Minister of Police; Defendant: National Director of Public Prosecutions; Defendant: Mr Mathiva
Court
Limpopo High Court, Thohoyandou
Jurisdiction
South Africa
Judgment Date
21 January 2016
Case Number
002/2012, 003/2012, 215/2012, 216/2012
Procedural Posture
Civil Action / Special Pleas of Non Joinder and Misjoinder Decided
Outcome
All special pleas of non-joinder and misjoinder are dismissed. Costs are awarded against the second and third defendants.
Judges
SK Hassim
Legal Topics
Non Joinder, Misjoinder, Vicarious Liability, Unlawful Arrest, Malicious Prosecution
Civil Procedure Delict Non Joinder Misjoinder Vicarious Liability Unlawful Arrest Malicious Prosecution

Case Brief

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Parties

TS Memudzivhadi

Plaintiff

Tshifhiwa Samuel Mashamba

Plaintiff

Tshilidzi Phineas Sogwadi

Plaintiff

Aluwani Stanley Mulaudzi

Plaintiff

Minister of Police

Defendant

National Director of Public Prosecutions

Defendant

Mr Mathiva

Defendant

Procedural Posture

Civil Action / Special Pleas of Non Joinder and Misjoinder Decided

Legal Issues

  1. 1 Whether the Minister of Justice and Constitutional Development must be joined as a defendant in actions for unlawful arrest and detention.
  2. 2 Whether the National Director of Public Prosecutions and the control prosecutor are misjoined as defendants.
  3. 3 Whether the particulars of claim disclose a cause of action against all defendants.

Ratio Decidendi

The court held that, based on the Supreme Court of Appeal decision in Moleko, it is not necessary to join the Minister of Justice and Constitutional Development as a defendant in actions for unlawful arrest, detention, or malicious prosecution. The National Director of Public Prosecutions is the appropriate defendant for decisions to prosecute. The special plea of non-joinder of the Minister is dismissed. The special plea of misjoinder of the National Director of Public Prosecutions also fails, as does the plea regarding the control prosecutor. The third defendant, as the alleged wrongdoer, has a direct legal interest in the litigation and may be held personally liable in delict, with his...

Court Disposition

All special pleas of non-joinder and misjoinder are dismissed. Costs are awarded against the second and third defendants.

Orders

  • The special plea of the non-joinder of the Minister of Justice and Constitutional Development is dismissed.
  • The special plea of the misjoinder of the second and third defendants is dismissed.