Judgment No. SC 69/15 8
Civil Appeal No. SC 9/14
I am fortified in this view by the following passage contained in Herbstein and
Van Winsen’s book on the civil practice of higher courts1;
“A direct and substantial interest has been held to be ‘an interest in the right which is
the subject matter of the litigation and not merely a financial interest….’ It is a ‘legal
interest in the subject matter of the litigation, excluding an indirect commercial
interest only.’ The possibility of such an interest is sufficient, and it is not necessary
for the court to determine that it in fact exists”.
In relation to joinder, the learned authors go on to
state as follows on the same page;
“For joinder to be essential, the parties to be joined must have a direct and substantial
interest, not only in the subject matter of the litigation, but also the outcome”
Applied to the circumstances of this case, I find that candidates in the elections
other than the applicant, had a direct and substantial interest in both the subject matter of the
litigation, and its possible outcome. These were, respectively, the harmonised election results
for the Mt Pleasant constituency, and the unsealing of and access to, the boxes and packets
containing such election material. The latter would have simultaneously exposed their own
election residue. I find too that the same candidates constituted what the learned authors
Herbstein and Van Winsen termed ‘necessary’ parties, defined thus at page 215 of the same
book,2
“A third party who has, or may have, a substantial interest in any order the court
might make in proceedings, or if such order cannot be sustained or carried into effect
without prejudicing that party, is a necessary party and should be joined in the
proceedings, unless the court is satisfied that such person waived the right to be joined
….In fact, when such person is a necessary party in this sense, the court will not deal
with the issues without a joinder being effected, and no question of discretion or
convenience arises.”(my emphasis)
1
2
“Civil Practice of the High Courts of South Africa”, 5th ed. at page 217
5th ed, ibid