Tobias v Nguvauva (HC-MD-CIV-ACT-DEL-2019/05249) [2020] NAHCMD 306 (31 July 2020);

Group

Headnote and flynote
Flynote: 

Practice – Joinder of parties – When required – Necessary parties – Other party to dispute should be joined.

Parties – Joinder – Application to join parties to proceedings under rule 40 of High Court Rules – Application must be served on parties to be joined – Parties entitled to be heard in respect of relief sought.

Headnote and Holding: 

The plaintiff (who at the time was employed by the Namibia Broadcasting Corporation) was during the period of May 2016 to 1 December 2016, based on information provided by a certain Cecil Nguvauva, (also an employee of the Namibia Broadcasting Corporation) to the ACC, prosecuted by the Prosecutor General on charges of fraud, theft alternatively theft by conversion.

On 01 December 2016, the plaintiff was found not guilty of the charges proffered against her. Upon her acquittal, the plaintiff during November 2019 instituted proceedings against the first to third defendants namely; Cecil Nguvauva, the Anti-Corruption Commission and the Prosecutor General. The plaintiff’s claim against the defendants is for malicious prosecution under the common law.

The defendants entered notice to defend the plaintiff’s claim. In his plea, the first defendant objected by way of raising a special plea of mis-joinder, to the effect that he was wrongly joined as a party to this litigation because according to him, he has no interest in this matter.   The second and third defendants in their plea contend that the Namibia Broadcasting Corporation is an interested party and ought to have been joined in this proceeding and accordingly also objected by way of a special plea of non-joinder of the NBC and its Director General.

The plaintiff resist the special plea raise raised by the first defendant and by the second and third defendants. In respect of the first defendant, the plaintiff asserts that Mr Cecil Nguvauva is an interested party and is rightly cited. In respect of the second and third defendants, the plaintiff contend that the procedure, i.e. the application of non-joinder is irregular and improper and would lead to incompetent orders by the Court.

Held that a party who seeks another party to be joined as a party to proceedings pending  before Court may in terms of rule 40(5), as read with rule 32(4) apply  for directions from the managing judge. That the applications for joinder and misjoinder were made in pursuance of directions given by the Court and the applications are thus regular.

Held that the principles dictating issues of misjoinders or non-joinder are very similar. Both objection to non-joinder or misjoinder may be raised by way of exception or by way of a special plea. The objection of a non-joinder may be raised where the point is taken that that a party who should be before court has not been joined or given judicial notice of the proceedings. The substantial test is whether the party that is alleged to be a necessary party for purposes of joinder has a legal interest in the subject matter of the litigation which may be affected prejudicially by the judgment of the court in the proceedings concerned.

Held further that if the allegations by the plaintiff, that an employee of the NBC, in this instance, Mr Nguvauva, acted with malice when the charges against her were laid, are at the trial found to be correct than and in that event, Mr Nguvauva may be personally liable despite the fact that he was acting within scope of his of employment.  For this reason alone, Mr Nguvauva does have a direct and substantial interest in the subject-matter of the litigation, which could be prejudiced by the judgment of the Court.

Held furthermore that the NBC and its Director General have a right to be heard before an order whether or not to join them as defendants to these proceedings is made. For this reason, it is not appropriate to grant the relief sought by the second and third defendants. More importantly, it is imperative that the parties, in respect of whom the order is sought, must first be heard.

Full judgment

 

NOT REPORTABLE

 

 

REPUBLIC OF NAMIBIA

 

Coat of Arms.bmp

 

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

 

RULING

 

                                                           Case no: HC-MD-CIV-ACT-DEL-2019/05249

In the matter between:

 

TURKI TOBIAS                                                                                                           PLAINTIFF

 

and

 

CECIL NGUVAUVA                                                                                 FIRST DEFENDANT

ANTI CORRUPTION COMMISSION                                              SECOND DEFENDANT

PROSECUTOR GENERAL OF THE

REPUBLIC OF NAMIBIA                                                                        THIRD DEFENDANT

 

Neutral citation:      Tobias v Nguvauva (HC-MD-CIV-ACT-DEL-2019/05249) [2020] NAHCMD 343 (31 July 2020)

 

Coram:          UEITELE J

Heard:           09 July 2020

Delivered:     31 July 2020

 

Flynote:         Practice – Joinder of parties – When required – Necessary parties – Other party to dispute should be joined.

 

Parties – Joinder – Application to join parties to proceedings under rule 40 of High Court Rules – Application must be served on parties to be joined – Parties entitled to be heard in respect of relief sought.

 

Summary:     The plaintiff (who at the time was employed by the Namibia Broadcasting Corporation) was during the period of May 2016 to 1 December 2016, based on information provided by a certain Cecil Nguvauva, (also an employee of the Namibia Broadcasting Corporation) to the ACC, prosecuted by the Prosecutor General on charges of fraud, theft alternatively theft by conversion.

 

On 01 December 2016, the plaintiff was found not guilty of the charges proffered against her. Upon her acquittal, the plaintiff during November 2019 instituted proceedings against the first to third defendants namely; Cecil Nguvauva, the Anti-Corruption Commission and the Prosecutor General. The plaintiff’s claim against the defendants is for malicious prosecution under the common law.

 

The defendants entered notice to defend the plaintiff’s claim. In his plea, the first defendant objected by way of raising a special plea of mis-joinder, to the effect that he was wrongly joined as a party to this litigation because according to him, he has no interest in this matter.   The second and third defendants in their plea contend that the Namibia Broadcasting Corporation is an interested party and ought to have been joined in this proceeding and accordingly also objected by way of a special plea of non-joinder of the NBC and its Director General.

 

The plaintiff resist the special plea raise raised by the first defendant and by the second and third defendants. In respect of the first defendant, the plaintiff asserts that Mr Cecil Nguvauva is an interested party and is rightly cited. In respect of the second and third defendants, the plaintiff contend that the procedure, i.e. the application of non-joinder is irregular and improper and would lead to incompetent orders by the Court.

 

Held that a party who seeks another party to be joined as a party to proceedings pending  before Court may in terms of rule 40(5), as read with rule 32(4) apply  for directions from the managing judge. That the applications for joinder and misjoinder were made in pursuance of directions given by the Court and the applications are thus regular.

 

Held that the principles dictating issues of misjoinders or non-joinder are very similar. Both objection to non-joinder or misjoinder may be raised by way of exception or by way of a special plea. The objection of a non-joinder may be raised where the point is taken that that a party who should be before court has not been joined or given judicial notice of the proceedings.           The substantial test is whether the party that is alleged to be a necessary party for purposes of joinder has a legal interest in the subject matter of the litigation which may be affected prejudicially by the judgment of the court in the proceedings concerned.

 

Held further that if the allegations by the plaintiff, that an employee of the NBC, in this instance, Mr Nguvauva, acted with malice when the charges against her were laid, are at the trial found to be correct than and in that event, Mr Nguvauva may be personally liable despite the fact that he was acting within scope of his of employment.  For this reason alone, Mr Nguvauva does have a direct and substantial interest in the subject-matter of the litigation, which could be prejudiced by the judgment of the Court.

 

Held furthermore that the NBC and its Director General have a right to be heard before an order whether or not to join them as defendants to these proceedings is made. For this reason, it is not appropriate to grant the relief sought by the second and third defendants. More importantly, it is imperative that the parties, in respect of whom the order is sought, must first be heard.

 

 


ORDER


a)         The first defendant’s application for misjoinder is dismissed.

 

b)         The second and third defendant’s application for non-joinder of the NBC and its Director-General is stayed pending the serving of the application to join them on them.

 

c)         The second and third defendants must if so inclined, serve their joinder application, together with this Ruling on the NBC and its Director-General by not later than 18 August 2020.

 

d)         If the application contemplated in paragraph c) of this Order is served on the Namibia Broadcasting Corporation and its Director General, then and in that event, the NBC and its Director Generate must signify their intention whether or not they intend to oppose the joinder application by not later than 25 August 2020 and if so advise file their grounds of opposing the joinder application by not later than 04 September 2020.

 

e)         The determination of the costs of the misjoinder and non-joinder applications stand over until when the joinder application is determined.

 

f)          The matter is postponed to 08 September 2020 for a status hearing.

 


RULING


 

UEITELE J

 

Introduction and Background

 

[1]    The plaintiff in this matter is a certain Ms Tobias who at one point was employed as an office administrator by the Namibia Broadcasting Corporation.  The first defendant is Mr Cecil Nguvauva who, at the time which is relevant to this matter, was employed by the NBC as its Manager: TV Licences.  The second defendant is the Anti-Corruption Commission, a statutory body established in terms of s 2 of the Anti-Corruption Act, 2003.  The third defendant is the Prosecutor-General of the Republic of Namibia, appointed in terms of Article 88(1) of the Namibian Constitution. I will for ease of reference refer to her as the Prosecutor General.

 

[2]    The plaintiff lost (by resigning) her employment with the NBC under the following circumstances. During 2008, Mr Nguvauva or his predecessor in his capacity as Manager TV: Licences informed the ACC that the plaintiff failed to deposit an amount of N$ 9 014 paid by a patron of the NBC for a television license. Mr Nguvauva’s information to the ACC was based on account of his inability to locate the deposit slip of that amount or find that amount on the Bank Account of the NBC.

 

[3]    As a result of the information that Mr Nguvauva provided to the ACC, the ACC laid charges of fraud, theft, alternatively theft by conversion against the plaintiff and recommended to the Prosecutor General that the plaintiff be prosecuted. The Prosecutor General accepted the recommendations made to her by the ACC and prosecuted the plaintiff during the period May 2016 to December 2016. These events compelled the plaintiff to resign from her employment with the NBC.

 

[4]    On the 1st of December 2016, the prosecution on the charges of fraud, theft, alternatively theft by conversion against the plaintiff was terminated in the plaintiff’s favour when she was acquitted. 

 

[5]    Following her acquittal, on 1 December 2016, the plaintiff on 25 November 2019, issued summons out of this Court against Mr Nguvauva, the ACC and the Prosecutor General (the defendants) in which summons she claims, jointly and severally, damages for malicious prosecution.

​​​​​​​​​​​

[6]        All the three defendants entered notice to defend the plaintiff’s claim. The matter was then in terms of Rule 38 read with Practice Direction 19 referred to Court connected mediation. At the mediation conference (which took place on 10 March 2020) the dispute between the parties remained unresolved and the defendants did, on 08 May 2020, as required under the Rules, file their pleas. The first defendant in its plea raised a special plea of misjoinder (he says he was wrongly added as party to the proceedings) on the basis that he does not have a direct and substantial interest in the subject matter of this action because, so his plea stated, when the charges against the plaintiff were laid he was acting within the course and scope of his employment.

 

[9]        The second and third defendants in their plea also raised a special plea of non-joinder. They contend that the NBC and Director-General are necessary parties to this litigation and ought to have been and should have been joined to this action.

 

[10]      After the defendants filed their pleas, I called a Case Management Conference for 09 June 2020.  At the Case Management Conference I made the following Order:

 

‘1           The defendants must, subject to rule 32(9) & (10) file their misjoinder and non-joinder application by not later than 19 June 2020.

 

2          The plaintiff must indicate whether or not it will oppose the applications by not later than 26 June 2020.

 

3          The case is postponed to 30 June 2020 at 08:30 for a status hearing’.

 

[11]      Following the parties’ failure to amicably resolve, the special pleas filed by the defendants, the second and third defendants on 18 June 2020 filed their application to join the NBC and its Director General as defendants to the action. The first defendant failed to file its application by 19 June 2020 as ordered and only filed its application on 24 June 2020, which was three days late. On 26 June 2020, Mr Nguvauva filed an application seeking the condonation of his late filing of the application for misjoinder and the upliftment of the bar. The plaintiff, the ACC and the Prosecutor General gave Notice that they will oppose the condonation application.

 

[12]      On the following day (i.e. on 25 June 2020) the plaintiff filed a notice in terms of rule 66 (1)(a) in the following terms:

 

‘KINDLY TAKE NOTICE that the plaintiff intends to raise the points/questions of law set out below in this interlocutory application wherein the first to the third defendants ("defendants") desires (sic) to join the Namibia Broadcasting Corporation as a defendant:

 

1.         The defendants, in terms of the Rules of this Honourable Court (Rules 40 of Court), is (sic) not competent and or entitled to join a party as co-defendants to the plaintiff's action.

 

2.         In the remote event that the above point and or question of law is unsuccessful, the defendants have-on his (sic) papers (regard being had to the discipline of pleading in motion proceedings) in any event failed to make out a case for the relief that it seeks in this application.

2.1      It is not necessary to join the Namibian Broadcasting Corporation and or its Director-General to this action-the former and the latter do not have a direct and substantial interest in the outcome and or subject matter of this action; and, (in so far as the requirement below finds application in the law); and

2.2      It is not convenient to join the Namibia Broadcasting Corporation and or its Director to this action the interest of justice militates against the joinder of the Namibian Broadcasting Corporation to this action.

 

3.         To the above end, the plaintiff shall seek the dismissal of the defendants’ application with appropriate costs.

 

4.         The applicants have failed to serve the application and pleadings on the party sought to be joined.’

[13]      The parties did not as contemplated in Rule 32 amicably resolve their differences with regard to the special pleas raised by the defendants. At the Status Hearing which was scheduled for 30 June 2020, I, after requesting the parties to address me on Nguvauva’s failure to file his non-joinder application by the time set out in the Court Order of 9 June 2020, ruled that the Bar against the first defendant is uplifted and I accordingly set the matter down for hearing on 09 July 2020 and on that day, after receiving the parties’ written submission with respect to question of misjoinder and non-joinder, postponed the matter to 31 July 2020 for a ruling. I therefore now provide my ruling and the reasons for my ruling.

 

The issues to be determined.

 

[14]      The questions that I was required to rule on are:

(a)       Is it competent for the second and third defendants to, in terms of the Rules of Court (Rules 40 of Court) apply for the NBC and its Director General to be joined as co-defendant to the plaintiff's action?

 

(b)       Was Mr Nguvauva wrongly cited (mis-joined) as a party to these proceedings?; and

 

(c)        Is the Namibia Broadcasting Corporation and its Director General necessary parties to this action or is it convenient to join the Namibia Broadcasting Corporation and its Director General to this action?

 

[15]      Before I answer these questions, I will in the next paragraphs briefly set out the legal principles that govern the joinder of parties or causes of action.

 

Applicable legal principles

 

  1. Civil Practice of the Supreme Court of South Africa[4] argue that time, effort and costs are saved by joining parties or causes in one action instead of bringing separate actions. In addition to the common law principles, the joinder of parties or causes of action to a matter before Court is governed by Rule 40 of the Rules of Court.[5]

 

[17]      The principles dictating issues of misjoinders or non-joinders are very similar. Both objection to non-joinder or misjoinder may be raised by way of exception or by way of a special plea. The objection of a non-joinder may be raised where the point is taken that that a party who should be before court has not been joined or given judicial notice of the proceedings. Once the objection is raised, either as an exception or special plea, the objection can, in my view, be dealt with in accordance with the directions, given on application by the parties under Rule 32 (4) or by the Court itself at a case planning conference hearing or at a case management conference hearing.

 

[18]      The substantial test is whether the party that is alleged to be a necessary party for purposes of joinder has a legal interest in the subject matter of the litigation which may be affected prejudicially by the judgment of the court in the proceedings concerned. Damaseb JP in Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay and Others[6] at 447, para 32 said the following:

 

The leading case on joinder in our jurisprudence is Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A). It establishes that it is necessary to join as a party to litigation any person who has a direct and substantial interest in any order which the court might make in the litigation with which it is seized. If the order which might be made would not be capable of being sustained or carried into effect without prejudicing a party, that party was a necessary party and should be joined except where it consents to its exclusion from the litigation. Clearly, the ratio in Amalgamated Engineering Union is that a party with a legal interest in the subject matter of the litigation and whose rights might be prejudicially affected by the judgment of the court, has a direct and substantial interest in the matter and should be joined as a party.’

 

[19]    In United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another  1972 (4) SA 409 (C) at 415E, Corbett J said the following:

 

‘It is settled law that the right of a defendant to demand the joinder of another party and the duty of the Court to order such joinder or to ensure that there is waiver of the right to be joined (and this right and this duty appear to be co-extensive) are limited to cases of joint owners, joint contractors and partners and where the other party has a direct and substantial interest in the issues involved and the order which the Court might make…’ (Italicised and underlined for emphasis).

 

[20]      In Henri Viljoen (Pty.) Ltd. v. Awerbuch Brothers,[8] Horwitz, and AJP (with whom Van Blerk, J concurred) analysed the concept of such a direct and substantial interest and after an exhaustive review of the authorities said:

 

‘The above authorities at least point in the same direction as the English cases referred to, namely, that 'the direct interest' required by the Appellate Division decision must be an interest in the right which is the subject-matter of the litigation and is not merely a financial interest which is only an indirect interest in such litigation…’

 

[21]    With respect to misjoinders, the test to determine whether there is a misjoinder is whether or not the party (cited) has a direct and substantial interest in the subject matter of the action, i.e. a legal interest in the subject matter of the litigation which might be affected prejudicially by the judgment of the court.  

 

[22]    With this outline of the legal principles, I will now proceed to consider the issues that are up for determination.
​​​​​​​

Is it competent for the second and third defendants to, in terms of the Rules of Court (Rules 40 of Court) apply for the NBC to be joined as co-defendant to the plaintiff's action?

 

[23]      Counsel for the plaintiff, in his written submissions, argued that the defendants’ applications are irregular and that the relief sought by the defendants is, in terms of the Superior Court’s process and practice and Rule 40 irregular and incompetent. This submission by Counsel is premised upon the argument that Superior Court civil practice does not recognise the resolution of special pleas raised by the defendants by way of applications; it is done by way of argument, engaging the trite principles of direct and substantial interest and convenience.

 

[24]      Counsel proceeded and argued that Martin v Diroyal Motors Namibia (Pty) Ltd t/a Novel Ford and Others[10] (placing reliance on Khumalo v Wilkins and Another 1972 (4) SA 470), is, in this jurisdiction, the sole authority for the practice that a defendant in the Superior Courts is entitled/permitted (upon the satisfaction of the requisite legal principles) to apply for the joinder of a co-defendant(s) to an action. The argument proceeded that a perusal of Khumalo is reflective that reliance thereon for the above proposition was - with respect - incorrect. In Khumalo, the submission proceeded, the Court concerned itself with the interpretation of Rule 28(2) of the Rules of the Magistrate’s Court Act (which Rules did not have any mechanism upon which a defendant in an action in the Magistrate’s Court can claim against a co-wrongdoer in the same proceedings), and the powers of magistrates in respect thereof and not the Rules of the Superior Court (which both in terms of the old Uniform Rules of Court and the current Rules provide for the third party procedure).

 

[25]      I respectfully disagree with the submissions and contentions by Counsel for the plaintiff. The debate as to whether or not a defendant can by means of an application seek the joinder of a party as a co-defendant may have been relevant prior to the coming into operation of the current Rules of Court. I say so because in my view, rule 40(5) which, I will at the risk of being repetitive, repeat here, has put to bed that debate. That subrule provides as follows:

 

‘(5)       Any party who seeks a joinder of parties or causes must apply for such joinder to the managing judge for directions in terms of rule 32(4).’

 

Rule 32(4), on the other hand provides the following:

 

'In any cause or matter any party may make application for directions in respect of an interlocutory matter on which a decision may be required, either by notice on a managing judge's motion court day or case management conference, status hearing or pre-trial conference.'

 

[26]      In United Africa Group (Pty) Ltd v Uramin Inc and Others,[11] Masuku J held that, the application for directions in terms of rule 40(5), as read with rule 32(4), is separate and distinct from the application for joinder, proper because in the application for directions, all that the party needs to do, is to mention the application the party intends to make, together with the parties thereto. This is to enable the court to set out a programme for the carrying out of the necessary steps, which may culminate in an application for joinder proper, and the grounds upon which such joinder is sought.

[27]      The learned judge proceeded and stated that:

 

‘The words 'must apply for joinder to the managing judge for directions' in my view deals with one issue, namely the seeking of directions in furtherance of the application for joinder proper, that may be applied for later, after directions in that regard have been given by the court. This does not mean that the application for directions must be equated with or should be moved simultaneously with the application for joinder proper.’

 

[28]      In the present matter, the parties in their case management report filed in anticipation of the Case Management Conference which was scheduled for 09 June 2020 indicated that the first defendant intended to object to him being cited as a party to these proceedings and that the second and third defendants intended to object to the fact the NBC and its Director General whom they were of the view that are parties with interest in the matter have not been joined.   It is in view of that indication that I gave directions that the parties file their applications for joinder and misjoinder.  I am therefore of the view that the process adopted by the second and third defendants is competent and regular because it done on the directions by the Court.

 

Is Mr Nguvauva a necessary party to these proceedings?

 

[29]    Mr Nguvauva has objected to his inclusion in these proceedings on the ground that when he acted with respect to charges that were proffered against the plaintiff he did so, not in his personal capacity, but in his capacity as an employee and within the scope of his employment with the NBC. It is further evident, counsel on behalf of Nguvauva submitted, that he acted under the authority which warrants sufficient grounds for this misjoinder application to succeed.

 

[30]    The above argument fails to appreciate the nature of the plaintiff’s claim. The plaintiff’s claim is that of malicious prosecution. It has been held that the question of malicious prosecution entails both the subjective and objective elements.  It is common cause that the NBC is a juristic person and does not have a mind of its own. It operates through the conduct of its employees and persons representing it. If the allegations by the plaintiff, that an employee of the NBC, in this instance Mr Nguvauva, acted with malice when the charges against her were laid, are at the trial found to be correct, than and in that event, Mr Nguvauva may be personally liable despite the fact that he was acting within scope of his of employment. 

​​​​​​​

[31]      For this reason alone, Mr Nguvauva does have a direct and substantial interest in the subject-matter of the litigation, which could be prejudiced by the judgment of the Court. In my view, Mr Nguvauva is a necessary party to the plaintiff’s action. The objection of mis joinder must accordingly fail and does fail.

 

Is the Namibia Broadcasting Corporation an interested party to this action or is it convenient to join the Namibia Broadcasting Corporation to this action?

 

[32]    The second and third defendants objected to the non-joinder of parties which they regard as necessary to these proceedings, and those parties are the NBC and its Director General, the employer of Mr Nguvauva. When the second and third defendants objected to the non-joining of the NBC, I directed that they must file their application for the joinder of the NBC and its Director General by not later than 19 June 2020. The second and third defendants did file their application but omitted to serve the application on the parties they intend to join namely the NBC and its Director General.

 

[33]      Counsel for the plaintiff, in his written submission argued that the failure to serve the application for joinder on the parties intended to be joined is fatal, and he relied on the case United Africa Group (Pty) Ltd v Uramin Inc and Others.[12] In that case, Masuku J said the following:

 

‘[39]     The rights of the proposed defendants to be parties to the application to join them cannot in law be abrogated and this is a fundamental issue. There cannot, as the plaintiff submits, be uncontested facts regarding the joinder of the proposed defendants without them being afforded an opportunity to place information and their views, before court. The present defendants are not emissaries or plenipotentiaries of the proposed defendants.

 

[40]      I have read the numerous cases Mr Möller referred the court to regarding the issue of joinder. I do not find in any of them, in dealing with the requisites for deciding whether a party is a necessary party or one to be joined for convenience, a proposition that the party sought to be joined does not have a right to be heard by the court in relation to the nature and extent of their interests — that responsibility lying only with the party seeking to join them, being the sole dancer in the theatre and whose entreaties the court must consider, to the express exclusion of the party who is the subject of the very application and should ordinarily join in the dance. It would be eminently fair for the court to declare its results, on the basis of the performance of both parties on stage, announcing, as it were, the victor and the vanquished.

 

[41]  …

 

[42]      It does not make sense to me that one can make and obtain an application for the joinder of a party in its absence and then seek an order for directions in that regard. In this case, the directions sought have nothing to do with the service of the joinder simpliciter but directions regarding steps post the joinder stage, like the amendments, service of the amended particulars of claim; pleadings and leave to apply suing by way of edictal citation. It would appear, with respect, that the plaintiff is in this regard blowing hot and cold on this fundamental issue.’

 

[34]      I associated myself with the comments by my brother Justice Masuku that the NBC and its Director General have a right to be heard before an order whether or not to join them as defendants to this litigation is made. For this reason, I am of the considered view, that it is not appropriate to grant the relief sought by the second and third defendants at the present moment on the facts before me. More importantly, it is imperative that the parties, in respect of whom the order is sought, must first be heard.

 

[35]      For the reasons that I have set out in the preceding paragraphs I make the following Order:

 

a)         The first defendant’s application for misjoinder is dismissed.

 

b)         The second and third defendant’s application for non-joinder of the NBC and its Director-General is stayed pending the serving of the application to join them on them.

 

c)         The second and third defendants must if so inclined, serve their joinder application, together with this Ruling on the NBC and its Director-General by not later than 18 August 2020.

 

d)         If the application contemplated in paragraph c) of this Order is served on the Namibia Broadcasting Corporation and its Director General then and in that event the NBC and its Director Generate must signify their intention whether or not they intend to oppose the joinder application by not later than 25 August 2020 and, if so advise, file their grounds of opposing the joinder application by not later than 04 September 2020.

 

e)         The determination of the costs of the misjoinder and non-joinder applications stand over until when the joinder application is determined.

 

f)          The matter is postponed to 08 September 2020 for a status hearing.

 

 

----------------------------------

S F I UEITELE

Judge

 

 

APPEARANCES:

 

PLAINTIFF:                                                                   T MUHONGO

                                                                                       Instructed by Weder, Kauta & Hoveka Inc.

                                                                                       Windhoek

 

FIRST DEFENDANT:                                                     J McCLEOD

                                           Of Shikongo Law Chambers

                                           Windhoek

 

 

SECOND & THIRD DEFENDANTS:                               M S KASHINDI

                                                                                        Office of the Government Attorney

                                                                                         Windhoek

 

 


[1]     I will, for ease of reference, in this ruling refer to Ms Tobias as the plaintiff and to the Namibia Broadcasting Corporation as the “NBC”.

[2]     I will, for ease of reference, in this Ruling refer to him as Mr Nguvauva.

[3]     Anti-Corruption Act, 2003 (Act No. 8 of 2003) I will, for ease of reference, in this Ruling, refer to this body as the ACC I will, for ease of reference, in this ruling refer to Ms Tobias as the plaintiff and to the Namibia Broadcasting Corporation as the “NBC”.

[3]     Anti-Corruption Act, 2003 (Act No. 8 of 2003) I will, for ease of reference, in this Ruling, refer to this body as the ACC.

[4]      Herbstein and Van Winsen. Civil Practice of the Supreme Court of South Africa 5th ed (2009).

[5]     Rule 40(1)-(3) reads as follows:

‘40.    (1)     Any number of persons, each of whom has a claim whether jointly, jointly and severally, separately or in the alternative may join as plaintiffs in one action against the same defendant or defendants against whom any one or more of those persons proposing to join as plaintiffs would, if he or she brought a separate action, be entitled to bring that action –

(a)     so long as the right to relief of the persons proposing to join as plaintiff depends on whether the court is to determine substantially the same question of law or fact which, if separate actions were instituted, would arise in such action; and

(b)     joinder may be allowed by the court on condition that failure of the claim of one plaintiff does not on that very fact extinguish the claims of the other plaintiffs.

(2)     A plaintiff may join several causes of action in the same action.

(3)     A plaintiff may sue several defendants in one action either jointly, jointly and severally, separately or in the alternative whenever the dispute arising between them or any of them on the one hand and the plaintiff or any of the plaintiffs depends on the determination of substantially the same question of law or fact which, if such defendants were sued separately, would arise in each separate action.

(4)     …

(5)     Any party who seeks a joinder of parties or causes must apply for such joinder to the managing judge for directions in terms of rule 32(4).’

[6]     Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay and Others 2011(2) NR 437.

[7]     United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another[7] 1972 (4) SA 409 (C) at 415E.

[8]     Henri Viljoen (Pty.) Ltd. v. Awerbuch Brothers 1953 (2) S.A. 151 (O).

[9]     Herbstein and Van Winsen: Civil Practice of the Supreme Court of South Africa 5th ed (2009) at p.240

[10]    Martin v Diroyal Motors Namibia (Pty) Ltd t/a Novel Ford and Others 2013 (2) NR 463 (HC).

[11]    United Africa Group (Pty) Ltd v Uramin Inc and Others 2017 (4) NR 1145 (HC).

[12]    United Africa Group (Pty) Ltd v Uramin Inc and Others 2017 (4) NR 1145 (HC).

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