Chapter 7 – Parties and Citations

Question 1

Elaborate on the Right and
Interest in
the Relief
Claimed

Answer 1

The parties must have locus standi

Question 2

Locus standi

Answer 2

refers to a determination of whether the correct party is
before the court.

Question 3

The common law on the parties bringing the matter before the court

Answer 3

the party bringing the matter must have a
direct and substantial interest in the right which forms the subject
matter of the litigation.

Question 4

Joanes & Buckle on what the plaintiff must have

Answer 4

• Adequate interest in the subject matter of the litigation, which is
  not a technical concept but is usually described as a direct
  interest in the relief sought.
• Interest that is not too far removed.
• Actual, not abstract or academic, interest.
• Current, not hypothetical, interest.

Question 5

The Constitution on locus standi

Answer 5

❖ Section 38 of the Constitution
➢ The persons who may approach a court are:
▪ (a) Anyone acting in their own interest.
▪ (b) Anyone acting on behalf of another person who cannot act in
their own name.
▪ (c) Anyone acting as a member of, or in the interest of, a group or
class of persons.
▪ (d) Anyone acting in the public interest.
▪ (e) An association acting in the interest of its members.

Question 6

Whic section of the constitution regulates class actions?

Answer 6

section 38(c)

Question 7

What is a class action?

Answer 7

allows a person, or persons, to institute
an action on behalf of and in the interest of a group, or class of
persons, having the same defined issues of fact and/or law in
common.

Question 8

What is certification?

Answer 8

➢ It must first be determined if a class with the same legal problem
exists.
➢ Thus, there are questions which must be answered to determine that.

Question 9

Certification Questions (Listed by SALRC)

Answer 9

➢ Is there an identifiable class?
➢ Is the cause of action known?
➢ Is there a commonality of legal and factual issues?
➢ Is there a suitable representative?
➢ Is it of legal importance to institute the action?
➢ Is there a suitable method to institute the action?
➢ Is it possible to plead res judicata at conclusion of the matter?

Question 10

❖ Permant Secretary, Department of Welfare, Easter Cape and Another
v Ngxuza and Others (SCA)

Answer 10

• In a class action lawsuit, even though some people are not officially included as individual participants, they still gain from the court’s decision and must follow its ruling.
• The court was unsure if class actions could be used for regular legal cases, since this particular case was about violations of Constitutional rights.

Question 11

❖ Trustees for the Time Being of the Children’s Resources Centre Trust
and Others v Pioneer Food (Pty) Ltd and Others (SCA)

Answer 11

➢ The SCA accepted that the class action may be utilised in ordinary
litigation even where the claims are not based on a constitutional right
infringement.

Question 12

The principle in Mukaddam v Pioneer Foods (CC)

Answer 12

• The Constitutional Court ruled that class actions are a valid legal tool and should be used when appropriate, but courts must oversee and regulate them.
• The court accepted the certification guidelines for class actions and confirmed that they can be used in ordinary legal cases, even when the claims do not involve constitutional rights.
• Before starting a class action, the person bringing the case must apply for certification, proving that their case meets the necessary legal requirements.

Question 13

The procedural requirements ito Mukaddam v Pioneer Foods (CC)

Answer 13

• A class action must be based on a valid legal issue, clearly outlined in the application.
• The case must involve common legal or factual questions that apply to all class members, and the group must be clearly defined so individuals can identify if they belong.
• The requested legal relief or compensation must be directly connected to the issue and must be measurable.
• If the case involves financial compensation, there must be a clear method for distributing the money among class members.
• The person leading the case must be capable of managing the lawsuit and fairly representing the group.
• A class action should be the best way to resolve the claims, considering the nature of the case and the members involved.

Question 14

Further takeaways from Mukaddam v Pioneer Foods (CC)

Answer 14

• The court stated that the listed factors for certification are not the only ones to consider and added the “interests of justice” as an important guideline.
• Certification is not automatic; courts have the discretion to grant it only if they see both procedural and substantive benefits in doing so.

Question 15

Facts in Nkala and Others v Harmony Gold Mining Co Ltd and Others

Answer 15

• This was the biggest class action case ever, involving mineworkers and families of deceased mineworkers seeking compensation.
• The affected group ranged from 17,000 to 500,000 people.
• Unlike most class actions, while the claims were based on the same legal argument, the harm occurred at different times, meaning not all claims were identical.
• The case was divided into two groups: one for those affected by silicosis and another for those affected by tuberculosis.

Question 16

Nkala and Others v Harmony Gold Mining Co Ltd and Others on Points on Class Certification

Answer 16

• Class certification is required, even if the case involves a violation of the Bill of Rights.
• Courts do not need to determine the entire class membership before hearing evidence or legal arguments.
• A class action can still be certified even if the group is broadly defined, as long as there are common issues or uniform evidence that applies to all claims.
• The shared issues among the claims do not have to outweigh the differences—courts simply need to find enough common ground to justify a class action in the interests of justice.

Question 17

Section of the constitution regulating Public Interest Litigation

Answer 17

section 38(d)

Question 18

What is public interest litigation

Answer 18

the plaintiff institutes the action on behalf of
the public or a distinct section of the public, even if the plaintiff has no
direct, indirect or personal interest in the outcome of the action.

Question 19

Who is public interest litigation usually directed at?

Answer 19

They are mostly directed at Organs of State in order to protect the
rights guaranteed in Chapter 2 of the Constitution.

Question 20

Two requirements of public interest litigation

Answer 20

• It must be established that a person is indeed acting in the public interest.
• It must be established that the public has a sufficient interest in the proposed remedy.

Question 21

Golden rule on public interest litigation

Answer 21

➢ A public-interest action does not give rise to res judicata.
➢ Although there are similarities between class actions and public
interest actions, the procedures differ.

Question 22

List the requirements of Principal Litigant

Answer 22

❖ Full names
❖ Gender (if natural person)
❖ Occupation
❖ Residence or place of business
❖ Description of capacity if suing in representative capacity
❖ When the plaintiff sues as a cessionary, full details of the cedent and the
date of the cession.

Question 23

Requirements for the citation of the defendant

Answer 23

❖ Surname, first names or initials by which the defendant is known to the
plaintiff.
❖ Business or residential address, and where known, the occupation and
employment address.
❖ When the defendant is sued in a representative capacity, a description of
such capacity.

Question 24

Example of Citation of Principal Litigants

Answer 24

➢ Plaintiff is John Jones, an adult male electrician residing (or employed)
(or having his business) at 14 Main Road, Randburg.
➢ Defendant is Anne Rice, an adult female accountant residing (or
employed) (or having her business) at 16 Second Street, Sandton.

Question 25

Example of Citation of Juristic Litigants

Answer 25

➢ Plaintiff is XYZ (Pty) Ltd (registration no. x of xxxx), a company with limited liability and duly incorporated in terms of the Companies Act, with its registered address (or principal place of business) at 14 Main Road, Randburg. ➢ Defendant is ABE CC (registration no. x of xxxx), a close corporation with limited liability and duly incorporated in terms of the Close Corporations Act, with is registered address at 16 Second Street, Sandton.

Question 26

Example of Citation of Partnerships and Trusts

Answer 26

➢ Plaintiff is The Shoe Shop, a firm (or partnership) carrying on the business or retail shoe sales and having its place of business at 14 Main Road, Randburg. ➢ Defendant is John Jones, a major male auditor residing (or having his place of business) at 16 Second Street, Sandton, in his capacity as trustee for the time being of the Jones Family Trust (registration no. x of xxxx)

Question 27

List the three kinds of situations/aspects that should be present in the citation of a minor

Answer 27

➢ Guardian acting in a **representative capacity only** ➢ Where the minor is litigating in his **own name** and **duly assisted by his guardian** ➢ Where the adult is litigating in a **dual capacity**, on his own behalf and in a representative capacity on behalf of his minor child

Question 28

Example of Guardian acting in a representative capacity only

Answer 28

▪ Plaintiff is John Jones, an adult male accountant residing at 14 Main Road, Randburg, in his representative capacity as the father and natural guardian of his minor son, James Jones, residing at the same address

Question 29

Example of sitauation where the minor is litigating in his own name and duly assisted by his guardian

Answer 29

▪ Defendant is Sam Smith, a minor male scholar residing at 16 Second Street, Sandton, duly assisted by his mother and natural guardian, Susan Smith, residing at the same address.

Question 30

Example of situation where the adult is litigating in a dual capacity, on his own behalf and in a representative capacity on behalf of his minor child

Answer 30

▪ Plaintiff is John Jones, an adult male attorney **residing at** 14 Main Road, Randburg, **in his personal capacity as well as in his representative capacity as the father and natural guardian** of his minor son, James Jones, **residing at** the same address

Question 31

Example of citing of the state

Answer 31

➢ Plaintiff is the **Government of the Republic of South Africa**, herein **represented by** the Minister of Education NO, **acting in her official capacity,** with **offices at** Sol Plaatjie House, 222 Struben Street, Pretoria

Question 32

Example of citing the state where Where a national department is the defendant

Answer 32

▪ **Defendant is** xxx **in his or her capacity as** Minister of Safety and Security, with **offices at** Wachthuis, 231 Pretorius Street, Pretoria

Question 33

Example of citing the state where a provincial department is the defendant

Answer 33

▪ **Defendant** is YYY i**n his or her capacity as a member of the Executive Council**, Gauteng Provincial Department of Safety and Security, wit offices at Wachthuis, 231 Pretorius Street, Pretoria.

Question 34

what is a joinder?

Answer 34

➢ Joinder is a procedure by which multiple parties or multiple causes of action are joined together in a single action.

Question 35

The implication of a joinder

Answer 35

A single summons may therefore cite several plaintiffs or defendants and contain several claims based on separate causes of action.

Question 36

The rationale behind a joinder

Answer 36

Primarily, it is to save time and costs spent in court and to prevent a multiplicity of actions.

Question 37

❖ Necessity vs Convenience

Answer 37

➢ Convenience is set out in HCR 10. ➢ Necessity must be determined through common law.

Question 38

The rules regulating a joinder

Answer 38

➢ HCR 10 → Joinder in action proceedings. ➢ HCR 6(14) → Joinder in application proceedings. ➢ Sections 41 and 42 of the Magistrates’ Courts Act → Joinder in action proceedings for the Magistrates’ Courts. ➢ Magistrates’ Courts Rule 28(2) → Joinder in application procedure.

Question 39

HCR 10 on Joinder of convenience

Answer 39

▪ Allows the court, at its discretion, to permit parties to join or to be joined together in proceedings even though it is not essential for these parties to be joined.

Question 39

HCR 10(1) on joinder of convenience

Answer 39

▪ Any number of persons having a claim, whether jointly, jointly and severally, separately or in the alternative, may join as plaintiffs in one actions against the same defendant or defendants. ▪ A proviso to the rule is that joinder is conditional and may occur where the claim of another plaintiff fails.

Question 40

HCR (3) on joinder of convenience

Answer 40

▪ Any number of persons having a claim, whether jointly, jointly and severally, separately or in the alternative, may join as plaintiffs in one actions against the same defendant or defendants. ▪ A proviso to the rule is that joinder is conditional and may occur where the claim of another plaintiff fails.

Question 41

General rule on joinder of neccessity

Answer 41

* If an outside party has or will have a significant stake in a court order, they must be included in the case unless they choose to give up that right. * The court does not have discretion in deciding whether to include such a party—it is a requirement. * Even if there is only a possibility that an outside party has a strong interest, the court can order them to be joined in the case

Question 42

Amalgamated Engineering Union v Minister of Labour

Answer 42

There are two tests to determine whether a third party has a direct and substantial interest in a legal matter: 1. Standing to sue: Would the third party have the right (locus standi) to seek legal relief on the same issue? 2. Impact of exclusion: If the third party is not included in the case, any court decision would not be final against them. This means they could later bring their own case on the same issue, possibly resulting in a conflicting court ruling

Question 43

General rule on Joinder of Causes of Action and Separation of Trials

Answer 43

Under HCR 10(2), a plaintiff can combine multiple causes of action in one case. These claims may be based on different causes of action or a single claim can stem from multiple causes of action. If the claims contradict each other, they must be presented as alternatives in the case.

Question 44

HCR 10(15) on Joinder of Causes of Action and Separation of Trials

Answer 44

If multiple parties or legal claims have been combined in a case, any involved party can request the court to separate the trials. The court has the power to split the proceedings, either for certain parties or specific legal issues, at any point during the case.

Question 45

Waiver

Answer 45

A person who has established a right of joinder, may waive such a right and agree to be bound by the judgement of the court, in which event joining such a person will be unnecessary.

Question 46

Non-joinder

Answer 46

➢ Deals with joinder of necessity, where a necessary party has not been joined. ➢ Remember, someone with a direct and substantial interest must be joined as it is compulsory and not discretionary.

Question 47

Misjoinder

Answer 47

➢ It applies to matters involving joinder of convenience. ➢ It involves a situation where someone with no interest in the matter was joined, and it must then be determined whether their joinder is justified on grounds of convenience

Question 48

Objections to misjoinder

Answer 48

➢ A party to proceeding, who wishes to raise an objection against the non-joinder of a necessary party or the misjoinder of another party, may do so by means of a special plea or in the event of an application by means of a point in limine.

Question 49

Intervention in the High Court

Answer 49

Under HCR 12, anyone who has the right to be a plaintiff or could be added as a defendant can apply to intervene in a case at any stage, as long as they notify all parties. HCR 6(14) extends this right to application proceedings as well.

Question 50

when does intervention usually happen?

Answer 50

Intervention happens when an outside party wants to join the case to protect their interest in the matter, especially if they might be harmed by not participating. Intervention is considered a part of Joinder, where additional parties are brought into the case.

Question 51

Intervention in the MC

Answer 51

➢ In terms of MCR 28(1) only a person having an interest in the proceedings may make an application to intervene, and the court may grant leave to intervene on such terms as it may deem fit. ➢ There must be prima facie proof of the interest.

Question 52

Meaning of interest

Answer 52

Interest means “direct and substantial interest.”

Question 53

General rule on 3rd party joinder

Answer 53

➢ HCR 13 allows any litigant to join a 3rd party to an already instituted action.

Question 54

Purpose of HCR 13

Answer 54

➢ The purpose is to prevent a multiplicity of unnecessary actions and is available in two instances.

Question 55

Two instances in which HCR 13 is available

Answer 55

If a party in a lawsuit believes that another person (who is not yet involved in the case) should share responsibility for damages or provide financial protection, they can request their inclusion through a third-party notice. This can happen in two ways: * Shared responsibility: If both the defendant and the third party are liable for the plaintiff’s damages but the plaintiff only sued the defendant, the defendant can ask the third party to join and take on their fair share of the responsibility. * Contractual indemnification: If the defendant and the third party have an agreement (such as a contract) where the third party must protect the defendant from financial loss, the defendant can demand indemnification through a third-party notice.

Question 56

Contents of a third party notice

Answer 56

➢ The nature and ground of the claim of the party issuing same. ➢ The question or issue to be determined. ➢ Any relief or remedy claimed.

Question 57

❖ Time of Serving the 3rd party Notice

Answer 57

➢ Before the close of proceedings in the action. ➢ It can only be served after pleadings with leave of the court. ➢ It must also be accompanied by a copy of all pleadings filed in the action up to the date of the service of notice.

Question 58

Effect of serving a third party notice

Answer 58

➢ The 3rd party becomes a party to the action. ➢ The 3rd party must deliver notice of intention to defend, and notify all other parties. ➢ The 3rd party must be served with all documents and given notice of all matters as a party

Question 59

3 rd Party Notice in Magistrates’ Courts

Answer 59

If a court rules that both a defendant and a third-party defendant are liable for a payment to the plaintiff, but one of them ends up paying the full amount or more than their fair share, they have the right to recover the excess from the other defendant. This means the defendant who overpaid can take legal action to claim back the portion that the court assigned to the other defendant. HCR 13 contains no similar provision.

Question 60

When did 3rd party notice in MG come into existence

Answer 60

15 October 2010

Question 61

GR on the consolidation of rules

Answer 61

When different parties have already started separate legal actions, the High Court may find it useful to merge them into one case.

Question 62

The goal of consolidation of rules

Answer 62

The goal of consolidating cases under HCR 11 and adding third parties under HCR 13 is similar—ensuring that related issues are handled in a single hearing to prevent unnecessary costs and complications from multiple separate lawsuits.

Question 63

Test for consolidation

Answer 63

The test for consolidation is based on convenience, meaning it must be practical, efficient, and fair for all parties involved. If a party requests consolidation and it meets this standard, the court will approve it unless it significantly prjejudices one of the parties