REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
RULING IN TERMS OF PRACTICE DIRECTION 61
Case Title: Dr Fred Joshua Mwilima 1st Plaintiff Sipiwe Ruth Mwilima 2nd Plaintiff Fred Liswani Mwilima 3rd Plaintiff
and
Minister of Health and Social Services 1st Defendant Vicmac Security Services 2nd Defendant | Case No: HC-MD-CIV-ACT-OTH-2021/04434 | |
Division of Court: Main Division | ||
Heard on: 14 February 2024 | ||
Heard before: Honourable Lady Justice Rakow | Delivered on: 7 March 2024 | |
Neutral citation: Mwilima v Minister of Health and Social Services (HC-MD-CIV-ACT-OTH-2021/04434) [2024] NAHCMD 85 (7 March 2024) | ||
Order: | ||
| ||
Reasons for order: | ||
RAKOW J: Introduction
Arguments by the parties
‘In breach of the above duties towards each of the employees of the first defendant within the City Centre Building, the second defendant and/or its employee(s) on duty unlawfully and negligently failed to prevent that SIMASIKU, who was carrying the firearm referred to above, entered the building and/or accessed the individual office in the building of the deceased, and failed to prevent that SIMASIKU inflicted substantial, material and lethal harm upon the deceased.’
‘The first defendant furthermore, generally, unlawfully and negligently failed to: …take steps to, or arrange that steps would be taken to apprehend SIMASIKU, and/or to stop or prevent SIMASIKU from discharging a firearm within the building.’
’it has installed two types of securities in the building, the first security being the security company employed by the owner of the building and which is situated at the entrance of the building where visitors would sign in a book when they enter the building.’ [6] And further, the second defendant equally in its Plea pleaded at paragraph 17 as follows: ‘The 2nd Defendant admits that it was contracted to perform security services at the First Defendant’s office premises at City Centre Building. However, this procurement was only in respect of certain floors and not the entire building, specifically floors 2, 6 and 8 only. Inter Africa Security was stationed at the main entrance of the building and other floors.’
Legal principles
‘[32] 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.’
‘[17] The test for joinder is a direct interest in the outcome of a suit.4 The persons to be joined as parties to the proceedings, must have a direct and substantial interest not only in the subject matter of the litigation, but also the outcome of the proceedings.’
‘[15] It is on the strength of these authorities above that it is incumbent upon any court to ensure that all persons, with the requisite interest in the subject matter of the dispute and whose rights may be affected, are before the Court since it is for all intents and purposes in line with the strict requirements of the rules of natural justice, the audi alteram partem rule. The substantial interest factor attracts a lot of judicial importance to an extent that the courts have assumed a right to raise it mero motu where justice so demands …….6’
‘[48] The law is replete with judgments dealing with the need to join a party to proceedings when that party has a direct and substantial interest in the outcome of the matter, or whose interests would be affected by the carrying out of the order in question. These are allegations that must be stated clearly in the papers, with the interest and the prejudice likely to be visited upon the party alleged not to have been joined. It is not automatic that once one raises non-joinder and no more, that party is an interested party. In this matter, the case was not made out with the necessary clarity and precision. [49] These are not issues that may be obliquely pleaded with the hope that the flesh will be added to the bare and dry bones in argument. The discipline in motion proceedings requires that all the relevant considerations and allegations of fact are pleaded in order to leave the court and the other party in no doubt as to the nature and basis of the complaint advanced. In the absence of the nature and basis of the interest by the NFA, I am of the view that the point taken by the respondents is not meritorious. The court and the other party must not be left ruminating incessantly, spending sleepless nights in nocturnal surmise as to the nature and basis of the interest of the party alleged to exist.’ Conclusion
1. A case has been made out for the joinder of Inter Africa Security and the Special plea of Non-joinder should be upheld with costs, capped in terms of rule 32(11). 2. The matter is postponed for a status hearing to 16 April 2024 at 15h30. 3. The parties to file a joint status report on or before 11 April 2024. | ||
Judge’s signature | Note to the parties: | |
E RAKOW Judge | Not applicable | |
Counsel: | ||
Plaintiff: | Defendants: | |
T Chibwana (with him L Paulus) Instructed by Dr Weder, Kauta & Hoveka Inc., Windhoek | A Brendell Of Shikongo Law Chambers, Windhoek |
1 The Civil Practise of the Supreme Court of South Africa, Herbstein & Van Winsen, p 168, Third Edition.
2 Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay and Others 2011(2) NR 437.
3 Kamwi v Minister of Lands and Resettlement (HC-MD-CIV-MOT-GEN-2016/00333) [2022] NAHCMD 282 (8 June 2022) para 17.
4 Maletzky v Zaaluka; Maletzkey v Hope Village (I 492/2012; I 3274/2011) [2013] NAHCMD 343 (19 November 2013) para 41.
5Ondonga Traditional Authority v Oukwanyama Traditional Authority (A 44-2013) [2015] NAHCMD 170 (27 July 2015).
6 Independence Catering (Pty) Ltd and Others v Minister of Defence and Others 2014 (4) NR 1085 (HC) para (24) and (250).
7 African Stars Sports Club (Pty) Ltd v Collin Benjamin In his capacity as Trustee of BKK Sport Auas Sport Trust and Others (HC-MD-CIV-MOT-GEN 155 of 2021) [2021] NAHCMD 263 (27 May 2021).
Cited documents 5
Judgment 4
- African Stars Sports Club (Pty) Ltd v Collin Benjamin (In his capacity as Trustee of BKK Sport Auass Sport Trust and Others (HC-MD-CIV-MOT-GEN 155 of 2021) [2021] NAHCMD 263 (27 May 2021)
- Kamwi v Minister of Lands and Resettlement (HC-MD-CIV-MOT-GEN 333 of 2016) [2022] NAHCMD 282 (8 June 2022)
- Maletzky v Zaaluka ; Maletzky v Mariekie De Klerk t/a Hope Village (492 of 2012) [2013] NAHCMD 343 (19 November 2013)
- Ondonga Traditional Authority v Oukwanyama Traditional Authority (APPEAL 44 of 2013) [2015] NAHCMD 170 (27 July 2015)