Pennington and Another v Minister of Justice and Constitutional Development of the Republic of South Africa and Others (47599/2016) [2022] ZAGPPHC 93 (26 January 2022)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2022 >> [2022] ZAGPPHC 93 | Noteup | LawCite sino index ## Pennington and Another v Minister of Justice and Constitutional Development of the Republic of South Africa and Others (47599/2016) [2022] ZAGPPHC 93 (26 January 2022) Pennington and Another v Minister of Justice and Constitutional Development of the Republic of South Africa and Others (47599/2016) [2022] ZAGPPHC 93 (26 January 2022) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2022_93.html sino date 26 January 2022 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION PRETORIA (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: NO (4) Date of hearing: 21 January 2022 CASE NO: 47599/2016 In the matter between: FRANKLIN D PENNINGTON                                                                          First Plaintiff GAIL JACKSON PENNINGTON                                                                     Second Plaintiff And THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT                                                            First Defendant OF THE REPUBLIC OF SOUTH AFRICA THE MINISTER OF POLICE OF                                                                      Second Defendant THE REPUBLIC OF SOUTH AFRICA THE MINISTER OF HOME AFFAIRS OF                                                       Third Defendant THE REPUBLIC OF SOUTH AFRICA SUPPLEMENTARY REASONS FOR ORDER NYATHI J A.        INTRODUCTION [1]        Further to the reasons that I handed down on 24 January 2022, I have been requested by counsel for both the Applicant (Defendant) and the Respondent (Plaintiff) to make a supplementary ruling on the Defendant's prayer 2.3, namely that: "2. According to the provisions of Uniform Rule 33(4) the following questions will be decided separately before any evidence is led . . . 2.3 The question whether any of the Defendants can be held liable for the alleged malicious prosecution of the First and/or Second Plaintiffs, due to the fact that the Plaintiffs did not join the National Prosecuting Authority and/or the National Director of Public Prosecutions as a party or parties to the action." (My emphasis). [2]       On behalf of the Plaintiff, reference is made to Section 179(6) of the Constitution of the Republic of South Africa which provides as follows: "The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority." [3]       Further reference is made to Section 33(1) of the National Prosecuting Authority Act 33 of 1998 , which provides as follows: "The Minister shall, for purposes of section 179 of the Constitution, this Act or any other law concerning the prosecuting authority, exercise final responsibility over the prosecuting authority in accordance with the provisions of this Act." [4]       The above provisions could not be any clearer in so far as to the functionary who bears responsibility for the actions of the prosecuting authority. At any rate what is pleaded is that the clerk of the court ("the appeals clerk at the Johannesburg Regional Court") was unable to compile a record for purposes of prosecuting the intended appeal by the Plaintiffs. [1] The clerk of the court also resorts under the Minister of Justice. [5]       I am not persuaded that the complaint relating to non-joinder is based on legal substance. [6]       Accordingly, the Applicant/ Defendant's prayer 2.3 is dismissed. Costs are reserved. J.S. NYATHI Judge of the High Court Gauteng Division, Pretoria Date of Supplementary reasons: 26 January 2022 On behalf of the Plaintiffs: Adv T. Moller Instructed by: THE STATE ATTORNEY SALU Building Ground Floor Corner Thabo Sehume and Francis Baard Streets (REF: 5051/16/z63) Tel: 012 309 1536 Fax: 012 309 1649/086 507 2462 On behalf of the Defendant: Adv M.M.W. Van Zyl SC With                                        : Adv C.G.V.O. Sevenster Instructed by: LOMBARD & KRIEK Inc Willie Van Schoor Drive Bellville Tel: (021)595 2312 (Ref: S07514) Email: willie@lomattorneys.co.za C/O SCHOLTZ ATTORNEYS Unit 4 223 Bronkhorst Street Brooklyn # PRETORIA PRETORIA (REF: A SCHOLTZ/sdp/AL4038) c/o ROXANNE BARNARD ATTORNEYS 17 th Floor, Schreiner Chambers 94 Pritchard Street JOHANNESBURG [1] Particulars of claim, Par 30 and 31 sino noindex make_database footer start