Stonehill Property Fund Proprietary Limited v Shongwe and Another

The applicant, Stonehill Property Fund Proprietary Limited, brought an urgent application seeking an interdict against the first respondent (Andile Shongwe) and the second respondent (Kravitouch (Pty) Ltd) to prevent them from organizing, promoting, or participating in marches, demonstrations, or protests directed at the Pullman Hotel, including a march scheduled for 18 October 2024. The applicant also sought a mandatory interdict against the first respondent to disclose the identities of seven individuals in a consortium related to transactions concerning the Pullman Hotel. The applicant alleged that the respondents are politically connected and had corralled several political parties to their cause, leading marches and protests to the applicant's hotel on three separate occasions, causing harm to the applicant's hotel business. The respondents raised preliminary points including non-joinder of necessary parties, misjoinder of the second respondent, and lack of urgency. The court directed that the joinder issue be dealt with first.

• Whether the political parties involved in organizing marches and protests against the applicant were necessary parties who should have been joined in the proceedings.
• Whether the second respondent was misjoined in the application.
• Whether the matter should be struck from the roll or postponed sine die pending joinder of necessary parties.

The matter was struck from the roll due to non-joinder of necessary parties, with costs on scale C, including costs of two counsel.

Where an order sought in proceedings may have a consequential impact on the constitutional rights of third parties — such as the right to assemble, demonstrate, and protest — and where those parties have a direct and substantial interest in the subject matter and outcome of the litigation, they are necessary parties who must be joined. Failure to join necessary parties constitutes a defect in pleadings that justifies striking the matter from the roll. In application proceedings, unlike in actions, striking from the roll rather than postponement sine die is an appropriate remedy for non-joinder.

The court observed that everyone has a constitutional right to express a grievance through protest and marches, and this includes the right to organize demonstrations. Constitutionally protected rights are legally enforceable and give rise to a legal interest which may require joinder. The court noted that it would be a 'jump in legal logic' to suggest that anyone who participated in marches is entitled to join proceedings, but where political parties have a direct and substantial interest, joinder is essential. The court also refused to provide a list of parties to be joined, stating that a fair reading of the founding affidavit and judgment compels the conclusion as to which parties should have been added.

This case illustrates the importance of joining all necessary parties — particularly those whose constitutionally protected rights (such as the rights to assembly, demonstration, and protest) may be affected by a court order — in application proceedings. It confirms that non-joinder of necessary parties is a procedural defect that can result in the matter being struck from the roll, even in urgent applications. The judgment also reinforces the principle that constitutionally protected rights give rise to a legal interest requiring joinder.