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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION,

DURBAN

 

                                                                                                    Case number: 10781/2013

In the matter between

 

SHIVRAM PARBHOONATH MAHARAJ                                APPLICANT/PLAINTIFF

 

and

 

THE MINISTER OF POLICE                               FIRST RESPONDENT/ DEFENDANT

THE MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT                  SECOND RESPONDENT/ DEFENDANT

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS, KZN                                    THIRD RESPONDENT / DEFENDANT

THE DIRECTOR OF PUBLIC

PROSECUTIONS                                               FOURTH RESPONDENT/ DEFENDANT

ANESH BALRAJ                               PROPOSED FIFTH RESPONDENT / DEFENDANT

 

 

 

                                                                                                    Case number: 10782/2013

In the matter between

 

SOLOMON ELPHUS SIKOBI                                                  APPLICANT /PLAINTIFF

 

and

 

THE MINISTER OF POLICE                               FIRST RESPONDENT/ DEFENDANT

THE MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT             SECOND RESPONDENT/ DEFENDANT

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS, KZN                                    THIRD RESPONDENT / DEFENDANT

THE DIRECTOR OF PUBLIC

PROSECUTIONS                                              FOURTH RESPONDENT/ DEFENDANT

ANESH BALRAJ                               PROPOSED FIFTH RESPONDENT / DEFENDANT

ORDER

 

The following order is granted:

 

[1]        In the circumstances the application falls to be dismissed with costs to be born jointly and severally by the applicants, the one paying the other to be absolved.

           

JUDGMENT

D. Pillay J

 

[1]        The applicants are Shivram Maharaj and Solomon Elphus Sikobi. The first second, third, fourth and fifth respondents are the Minister of Police, the Minister of Justice and Constitutional Development, and the National Director of Public Prosecutions, KwaZulu-Natal.

 

[2]        The applicants seek to join the fifth respondent Anesh Balraj as fifth respondent.

 

[3]        Mr Balraj lodged a complaint against the plaintiffs with the South African Police Service on 14 February 2013. As a result, they were arrested on 25 February 2013 charged, prosecuted and convicted on 4 August 2015 for defeating the ends of justice and extortion. On 5 September 2017 the full bench of the KwaZulu-Natal Division of the High Court set aside their conviction and their sentence of three years imprisonment.

 

[4]        The applicants failed to serve a copy of the pleadings on Mr Balraj. On its own this procedural non-compliance would not be sufficient cause for dismissing the application. The facts must be considered.

 

[5]        On 6 March 2019 the applicants delivered this application for joinder. The action for damages arising from the applicants’ alleged unlawful arrest and detention and malicious prosecution against the first to fourth respondents was launched on 25 October 2013. Any claim the applicants have against Mr Balraj arose when he lodged a complaint against the applicants allegedly on false premises. Lodging a false complaint triggered the sequence of events that resulted in the arrest, detention, prosecution, conviction and eventual acquittal. Their cause of action arose on 14 February 2013. While Mr Balraj has a direct and substantial interest in the proceedings, and substantially the same facts give rise to the claims against the first to the fourth respondents, claims against him have prescribed with the effluxion of time. The cause of action did not arise consequent upon the appeal court’s criticism of Mr Balraj as a witness. Their acquittal on appeal was not the cause of action. It merely fortified their claim.

 

[6]        In the circumstances the application falls to be dismissed with costs to be born jointly and severally by the applicants, the one paying the other to be absolved.

 

 

D. Pillay J

Judge of the High Court of KwaZulu-Natal

 

 

APPEARANCES

N.B With the consent of the parties the matter was dealt with on the papers.

 

Date of Hearing                                        :           2 June 2020

Date of Judgment                                    :           2 June 2020

 

Applicants/Plaintiff Attorneys                  :           Viren Singh Attorneys

                                                                                    Ref: V Singh/ngm/M1362 & S 1347

                                                                                    Tel: (031) 312 8866/7

 

Respondent/ Defendants attorneys          :         State Attorney KZN

                                                                                    Ref: 32/2937/13/s/P20

                                                                                    Tel: (031) 365 2560

 

Counsel for the 5^th Respondent/Defendant:      Murray Pitman

Respondent/ Defendants attorneys          :         Arvina Harrichand Attorneys

                                                                                    Ref: AH/N41

                                                                                    Tel: (031) 826 1277

                                                                                    arvinah@gmail.com

 

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