Pennington and Another v Minister of Justice and Constitutional Development of the Republic of South Africa and Others (47599/2016) [2022] ZAGPPHC 93 (26 January 2022)

Pennington and Another v Minister of Justice and Constitutional Development of the Republic of South Africa and Others (47599/2016) [2022] ZAGPPHC 93 (26 January 2022)

The court found that the relevant constitutional and statutory provisions clearly assign final responsibility for the prosecuting authority to the Minister of Justice. The clerk of the court, whose conduct is at issue, operates under the Minister of Justice. Consequently, the failure to join the National Prosecuting Authority or the National Director of Public Prosecutions does not preclude the plaintiffs from pursuing their claim for malicious prosecution against the defendants. The objection based on non-joinder lacks legal substance and is dismissed.

Citation
[2022] ZAGPPHC 93
Parties
Plaintiff: Franklin D Pennington; Plaintiff: Gail Jackson Pennington; Defendant: Minister of Justice and Constitutional Development of the Republic of South Africa; Defendant: Minister of Police of the Republic of South Africa; Defendant: Minister of Home Affairs of the Republic of South Africa
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 January 2022
Case Number
47599/2016
Procedural Posture
Civil Procedure / Supplementary Reasons for Order on Non Joinder Objection
Outcome
Defendants' prayer 2.3 regarding non-joinder is dismissed. Costs are reserved.
Judges
Nyathi
Legal Topics
Malicious Prosecution, Non Joinder, Ministerial Liability
Civil Procedure Delict Malicious Prosecution Non Joinder Ministerial Liability

Case Brief

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Parties

Franklin D Pennington

Plaintiff

Gail Jackson Pennington

Plaintiff

Minister of Justice and Constitutional Development of the Republic of South Africa

Defendant

Minister of Police of the Republic of South Africa

Defendant

Minister of Home Affairs of the Republic of South Africa

Defendant

Procedural Posture

Civil Procedure / Supplementary Reasons for Order on Non Joinder Objection

Legal Issues

  1. 1 Whether the failure to join the National Prosecuting Authority or the National Director of Public Prosecutions precludes liability of the defendants for alleged malicious prosecution.
  2. 2 Who bears final responsibility for the actions of the prosecuting authority in the context of ministerial liability.

Ratio Decidendi

The court found that the relevant constitutional and statutory provisions clearly assign final responsibility for the prosecuting authority to the Minister of Justice. The clerk of the court, whose conduct is at issue, operates under the Minister of Justice. Consequently, the failure to join the National Prosecuting Authority or the National Director of Public Prosecutions does not preclude the plaintiffs from pursuing their claim for malicious prosecution against the defendants. The objection based on non-joinder lacks legal substance and is dismissed.

Court Disposition

Defendants' prayer 2.3 regarding non-joinder is dismissed. Costs are reserved.

Orders

  • The defendants' prayer 2.3 is dismissed.
  • Costs are reserved.