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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION-MTHATHA)

                                                                                                            CASE NO. 1174/2016

In the matter between:

THEMBILE LUCAS MGATYELWA                                                         Plaintiff

And

MINISTER OF POLICE                                                                              First Defendant

MINISTER OF JUSTICE AND

CORRECTIONAL SERVICES                                                                Second Defendant

JUDGMENT

Somacala AJ

1.    This matter served before me for the determination of the special pleas raised by the second defendant.

2.    The Plaintiff has instituted an action against the First and second Defendants suing both of them for damages arising out of an alleged unlawful arrest, detention and malicious prosecution.

3.    The plaintiff’s cause of action, against both defendants, is premised on the grounds of vicarious liability. It is the Plaintiff’s contention that the First Defendant is the employer of the members of the South African police Services and that the Second Defendant is the employer of prosecutors within the prosecuting authority and the magistrate of Libode. It is contended by the plaintiff that he was arrested and detained by the members of the South African Police, where-after he appeared in the Magistrates Court in Libode and was thereafter remanded in custody.

4.    Plaintiff contends that his initial arrest and detention, by the members of the police, was unlawful, and the prosecutor allowed that he be detained further by the order of the magistrate, and as a result thereof both the prosecutor and the magistrate effected the furtherance and continuation of his unlawful detention.

5.    The Second Defendant has raised two special pleas to the Plaintiff’s particulars of claim, those being that of misjoinder and non-joinder respectively. Both special pleas relate to the joinder of the Second Defendant for the delicts committed by the prosecutors within the prosecuting authority, as well as the magistrate.

6.    The Second Defendant avers that, prosecutors within the prosecuting authority as well as magistrates, enjoy judicial independence and the Minister of Justice cannot be held vicariously liable for their actions as he or she does not have any authority over them whilst performing their functions.

7.    It is the Second Defendant’s further contention that the National Director of Public Prosecutions is the executive head of the National Prosecuting Authority, which is the national body responsible for overseeing  the prosecutorial services carried out by prosecutors. Second Defendant submits that the National Director of Public Prosecutions should have been joined as a party in these proceedings.

8.    The Second Defendant further contends that magistrates enjoy judicial immunity which comes from their judicial independence and as a result thereof the Magistrate Libode should have been joined in his or her capacity as such.

9.    The cardinal issue for determination herein is whether the Minister of Justice and Correctional Services is vicariously liable for actions and/or omissions by prosecutors within the prosecuting authority including those of the magistrates. Secondly, whether was it not appropriate that both the National Director of Public Prosecutions and the Magistrate Libode, both respectively, should not have been joined in this matter.

10. Vicarious liability is generally described as strict liability of one person for the delicts caused by another. In an employer-employee relationship, the employer is liable for delicts committed by his/her employee whilst acting in the course and scope of such employment.

11. There are three requirements which have to be met for an employer to be held vicariously liable for the delicts of the employee, those being that;

a)    There must have been an employer and employee relationship which was in existence at the time when the delict was committed;

b)    The employee must have committed the delict; and;

c)    The employee must have acted within the course and scope of his employment when such delict was committed.[1]

12. Section 179 of the Constitution of the Republic of South Africa provides for the establishment of a single national prosecuting authority in the Republic which is vested with powers to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings. The Constitution also provides that the prosecuting authority consists of a National Director of Public Prosecutions, who is the head, and is appointed by the President as the head of the national executive.[2]

13. There is a hierarchical structure within the national prosecuting authority as provided for by the National Prosecuting Act. Section 22 provides that “the National Director, as the head of the prosecuting authority, shall have the authority over the exercising of all powers, and the performance of all duties and functions conferred or imposed on or assigned to any member of the prosecuting authority by the Constitution, this Act or any other law”.[3] All prosecutors exercise their powers subject to the authority given to them by the National Director or by a person designated by her.

14. The prosecuting authority enjoys judicial independence in the exercise of their duties and functions, but only subject to the Constitution and the law. Section 32 provides “a) a member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject to the Constitution and the law;  b) subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions”.[4]

15. In MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND ANOTHER v MOLEKO[5], the Honourable Justice Van Heerden stated that, “as far as the first appellant, the Minister of Justice and Constitutional Development, is concerned, the National Prosecuting Act 32 of 1998 provides that the Minister exercises final responsibility over the national prosecuting authority established in terms of s179 of the Constitution, but only in accordance with the provisions of that Act (s33(1)). Thus the National Director of Public Prosecutions (NDPP) must, at the request of the minister, inter alia furnish her with information in respect of any matter dealt with by the NDPP or DPP, and with reasons for any decision taken by a DPP, ‘in the course of exercise of their powers, the carrying out of their duties and the performance of their functions’ (s33(2)(a) and (b). Furthermore, the NDPP must furnish the Minister, at her request, with information regarding the prosecution policy and the policy directives determined and issued by the NDPP (ss33(2)(c) and (d). However, the prosecuting authority is ‘accountable to parliament in respect of its powers, functions and duties under this Act, including decisions regarding the institution of prosecutions’ (s35(1)). It is therefore clear that the Minister (the first appellant) is not responsible for the decision to prosecute Mr Moleko and the appeal must also succeed as far as the first appellant is concerned. (my own underlining).

16. The Moleko judgment of the Supreme Court of Appeal is superabundant and lays to rest any doubt that may exist with regards to the Minister’s liability for the actions of the national prosecuting authority.

17. The second leg for consideration in this matter is about the vicarious liability of the second defendant for the actions of the magistrates. Magistrates are appointed by the Minister,[6] who may after consultation with the Commission, make regulations conferring on or assigning to magistrates administrative powers and duties which do not affect the judicial independence of magistrates, including regulations empowering the Minister, after consultation with the Commission, to confer or assign administrative powers and duties of a general nature to magistrates.[7]

18. Magistrates like all other judicial officers, enjoy judicial independence and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.[8]

19. It follows therefore, that the Constitution apply equally to all courts and judicial officers including magistrates. Judicial independence, being the cornerstone of our rule of law, has its protection which extends to include all forms of external interferences.

20. In exercising their judicial functions, magistrates act independently and are not subject to any authority from the Minister. The doctrine of separation of powers, in any constitutional democracy, allows for an independent judiciary. The executive do not have any control over the judiciary. It therefore stands to reason that the Minister does not have any control over the judicial functions of the magistrates.

21. In VAN ROOYEN AND OTHERS v THE STATE AND OTHERS[9], the Honourable Chaskalson CJ (as he then was), stated that “if the Minister acts without having received a recommendation from the Commission, the regulation will not be valid. If after having received a recommendation, he or she departs from it, that decision would be invalid. Furthermore, if regulations are made which are inconsistent with judicial independence they will be invalid. Viewed objectively, therefore, the power to make regulations of service of magistrates is a limited power, which does not entitle the Minister to impair the independence guaranteed by the Constitution”.[10]

22. The Minister does not have authority over magistrates, and neither can he or she interfere with their judicial independence. The judicial independence which is accorded to the magistrates limits any powers that they Minister may have over them. Magistrates enjoy judicial immunity when performing their judicial duties, and no organ of state or any person can interfere  with their judicial functions.

23. In MINISTER OF SAFETY AND SECURITY AND OTHERS v VAN DER WALT AND ANOTHER,[11] the Honourable Tshiqi JA held that, “the fact that the magistrate is immune from liability for his or her negligent conduct means there is no basis to hold any other party vicariously liable for such negligent conduct. That is so because vicarious liability is in general terms defined as strict liability of one person for the delict of another. What it means is that a person may be held liable for the wrongful act or omission of another even though the former did not strictly engage in any wrong conduct[12]….consequently because the magistrate’s conduct is not regarded as wrongful in delict vicarious liability cannot be imposed upon the minister.”[13] (my own underlining)

24. In SONDAG v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND ANOTHER,[14] the learned Notshe AJ (as he then was), stated that, “when judicial officers execute their judicial functions and duties they are not doing so as employees of the first defendant. Even in the field of labour relations the Labour Court held that a magistrate is not an employee as defined in the Labour Relations Act 66 of 1995. The vicarious liability should fail on that basis alone.”[15]

25. The limitations that exist, in the relationship between the Minister and magistrates and prosecutors, takes away the authority the Minister has over these functionaries, whilst in the performance of their judicial functions.  It follows, therefore, that the second defendant is not vicariously liable for the actions committed by prosecutors and magistrates in the performance of their judicial functions.

26. In the circumstances, therefore, I make the following order:

1). The special plea of misjoinder of the second defendant, in so far as it relates to the prosecutor and the magistrate is upheld.

2). The special plea of NON-JOINDER of the National Director of Public Prosecutions, in so far as it relates to the actions by the prosecutor is upheld.

3). The special plea of non-joinder of the Magistrate Libode, in his or her official capacity as such is upheld.

4). The plaintiff is ordered to pay second defendant’s costs.

                                                                           

BI SOMACALA

ACTING JUDGE OF THE HIGH COURT

Appearances:

For the plaintiff:    Mr C Pangwa

                            Suite 202, First floor

City Centre Complex

York Road

MTHATHA

For the defendants:    Adv AM Da Silva

Instructed by:            The Office of the State Attorney

Broadcast House

94 Sissons Street

Fortgale

MTHATHA

Date heard:                                                   28 July 2020

Date of delivery of the judgment:                  11 August 2020

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