Civil Procedure – Topic 3 – Parties to Civil Litigation

2.1 Locus Standi - Introduction

Locus standi refers to a party’s legal capacity and entitlement to participate in litigation. It
is used in two distinct senses:

a) Legal Capacity to Sue or Be Sued This refers to whether a person (natural or

juristic) has the legal personality and competence to initiate or defend legal
proceedings (locus standi)

b) A litigant must also have a legal Interest in the dispute which is the subject of
litigation.

This ensures that only those genuinely affected by the outcome may approach the court.

Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A) –

Buttressed the need for clarity in who has an interest in a claim before a court
where a guardian brings a case to court on behalf of a minor child.

United Watch & Diamond Co (Pty) Ltd and Others v Disa Hotels Ltd and Another
1972 (4) SA 409 (C) - The court clarified that locus standi involves both the capacity
to litigate and the interest in the relief claimed. A party must not only be legally
competent but also have a real and direct stake in the matter.

Tlhoriso Lekatsa and 14 others v Marematlou Freedom Party and Another C of A

(CIV) 42/2022 – The court clarified that locus standi involves both the capacity to
litigate and the interest in the relief claimed. It also discussed locus standi under
common law.
Ramela & Associates v Letseng Diamond & Ors – CIV/T/0064/23 ND – The issue
of interest for purposes of establishing locus standi emphasized.

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 Mofomobe and Another v Minister of Finance and Others LAC (2017–2018) 65 The
Court of Appeal went at length to discuss the issue of locus standi in constitutional
matters and matters of public interest.

Element of Locus Standi Consideration

Whether the party has legal personality or authority to
Legal Capacity
litigate
Whether the party has a direct, substantial, and legally
Interest in Relief
recognized interest
Prevents abuse of court process and ensures judicial
Importance
resources serve real disputes

2.2 Capacity to sue and be sued

Certain individuals are considered legally incapacitated or immune from suing or being
sued due to age, mental condition, financial status, or other statutory limitations. While
they may not personally litigate, the law provides mechanisms for them to be represented
by authorised persons such as legal guardians, curators bonis, or curators ad litem.

2.2.1 – (Limitations/Immunity)
a) Minors – Generally, minors lack legal capacity to make decisions. However, their
rights still have to be protected and of those they may injure. Should a minor be
sued or want to sue, they should be represented by:
• A legal guardian
• A curator bonis (if appointed and empowered)
• A curator ad litem (appointed by the court for litigation purposes) If there is
no guardian, the court has the discretion to allow appointment if of curator
ad litem.

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However on application, the court may grant permission to a minor to represent himself
where they are emancipated.

Section 4 of the Children’s Protection and Welfare Act, 2011 affirms that the best
interests of the child are paramount and Section 147 thereof stipulates that a child has a
right to legal representation in any legal proceedings.

Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A) – Clarified
the role of guardians and curators in representing minors in litigation.
Madalane v Van Wyk [2016] ZASCA 25 – Reaffirmed that minors must litigate
through legally appointed representatives but parents cannot litigate on behalf of
their children that have reached majority age.
Wolman v Wolman 1963 (2) SA 452 (A) – Addressed the appointment of a curator
ad litem to safeguard a minor’s interests in family litigation.
Yu Kwam v Pres Insurance Co & Others 1963 (3) SA 766 – Although the main
issue was prescription of a claim against the respondent insurance company, the
court considered the limitation of a minor and persons with limited mental capacity
to sue regad being had to the legal incapacity insofar as it relates to locus standi
and their need to be assisted by others such as curators and guardians.

In summary: The principle is that minors must sue through a legal guardian or curator,
and courts will scrutinize whether the guardian is acting in the minor’s best interests.

High Court Civil Litigation Rules, 2024 and Subordinate Court Act, 1988 (as
amended) prescribe a process of appointing a curator.

Child Protection and Welfare Act, 2011 deals with legal guardianship of minor children.

b) Mentally incapacitated persons – they cannot appreciate the nature of the case and
consequences that flow therefrom. They must be represented by:
• A curator ad litem (for litigation)
• A curator bonis (for managing property and affairs)

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De Villiers v Espach 1958 (3) SA 91 (T) – The court held that although mentally
incapacitated persons require curators, in order for the curator to be appointed, there
has to be sufficient proof before the court proving their mental incapacity.

The principle is that Courts require objective proof of incapacity before

appointing a curator bonis or curator ad litem to ensure that representation is
justified and protective.

c) Insolvents - Insolvent individuals may, under certain conditions, sue or be sued.

However, their estate vests in a trustee or liquidator, who may act on their behalf
in litigation.

Insolvency Act, 2022 provides a clear framework for representation and litigation
involving insolvent persons.

Sections 18(3) and 23 of the Insolvency Act, 2022

• Section 18(3): Limits the insolvent’s capacity to litigate over estate matters.
• Section 23: Grants trustees or liquidators authority to represent the insolvent
estate.
Marais v Engler Earthworks 1998 (2) SA 450 (E) – In the Clarified the
circumstances under which an insolvent may litigate personally versus when a
trustee must act.

d) Prodigals - a prodigal is a person that has been declared as legally incapable of

managing their financial affairs due to reckless or irresponsible behavior. They may
be represented by:

• A curator bonis (if appointed and authorized)

• A curator ad litem (for litigation purposes)

Delius v Delius 1960 (1) SA 270 – Defined a prodigal and the distinction between
a curator bonis and curator ad litem.

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e) Judges

Under Rule 108(8) of the High Court Civil Litigation Rules, 2024, no summons
may be issued against a judge of the High Court or Court of Appeal unless prior
leave of the High Court has been obtained. This provision safeguards judicial
independence and ensures that litigation against members of the judiciary is not
frivolously pursued.

Marabe v Maseru Magistrates' Court and Others (Constitutional Case No.

18/2020) [2021] LSHCONST 51 The court emphasized the procedural safeguards
surrounding judicial officers including subordinate court officers. It reaffirmed that
litigants must seek leave before instituting proceedings against a judge. The case
also explored the constitutional implications of judicial accountability balanced
against institutional integrity.

Mei v Mr Justice Thamsanqa Nomngcongo NO (Constitutional Case No. 06/2018)

[2021] LSHC 50 In this case, the High Court reiterated that judicial officers are not
immune from scrutiny but must be approached through proper procedural
channels.

f) Members and Officers of Parliament

In terms of Section 3 of the Parliamentary Powers and Privileges Act No. 8 of

1994, Senators and Members of Parliament enjoy immunity from both civil and
criminal proceedings for any statements made or written in the course of their
official duties within the Senate or National Assembly. This protection is designed
to uphold the principle of free speech in parliamentary debate and legislative
functions.

Principle:

• The immunity applies strictly to official parliamentary business and does not
extend to conduct outside the scope of legislative duties.

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 • It ensures that elected representatives can perform their roles without fear of
legal reprisal for their contributions to parliamentary discourse.

g) Holder of King’s Office

The Constitution of Lesotho (1993) outlines the legal status and protections
afforded to the King or Regent. Two key provisions are central:

Section 50(1)

“The King shall not be liable to any proceedings whatsoever in any court in respect
of anything done or omitted to be done by him in his private capacity.”

This grants the King absolute civil immunity for acts done in his private
capacity. It reflects the principle of sovereign immunity, rooted in constitutional
monarchy traditions.

Section 50(5)

“Any right of the King to bring or defend proceedings in any court shall be exercised
by the Attorney-General.”

The King cannot personally sue or be sued. The Attorney General acts on
behalf of the King in all legal proceedings, ensuring continuity and institutional
representation. Thus, The King does not have locus standi in his own name.

h) Persons Enjoying Diplomatic Privilege and Immunity

Individuals who hold diplomatic status are generally shielded from legal
proceedings in domestic courts unless they expressly waive their immunity.
However, if a diplomat initiates legal action, the opposing party may raise a
counterclaim against them within the same proceedings.

This principle is grounded in both international law and domestic legislation,

notably:

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• Article 31 of the Vienna Convention on Diplomatic Relations (1961)

The Article also outlines circumstances or conditions under which a diplomat

may be sued. Thus providing conditions to immunity.

• Diplomatic Privileges Act of 1969

(i) Legal Doctrines:

• Absolute Immunity: Grants blanket protection from all legal claims.
• Restrictive Immunity: Limits immunity to official acts, allowing litigation for
private or commercial conduct.
Sethojane and Others v Korean National Commission of UNESCO (C OF A
(CIV) 46/2013) The Court of Appeal considered the scope of diplomatic
immunity and emphasized that immunity must be respected unless waived. The
case also highlighted the distinction between official and private acts in
determining whether immunity applies.

Trendtex Trading Corporation Ltd v Central Bank of Nigeria [1977] – Introduced

the doctrine of restrictive immunity in commercial disputes. Also highlighted the
distinction between the state and its entities (when entities may be considered
separate legal entities for purposes of immunity)

Jones v Ministry of Interior of Saudi Arabia [2006] UKHL 26 – In a case where

a case concerning torture by state offficials was brought against the sate and
the officials the court deliberated on issue of state immunity vis-à-vis individual
state officials immunity.

Absolute Immunity - Absolute immunity is a traditional doctrine that grants

complete protection to foreign states and diplomats from being sued in
domestic courts, regardless of the nature of their conduct—whether public
or private.

Key Features:

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 • Immunity applies to all acts, including commercial or private transactions.
• Rooted in the principle of sovereign equality: one state cannot sit in
judgment over another.
• Historically dominant but now largely replaced by restrictive immunity in
many jurisdictions.

International Instrument:

• Vienna Convention on Diplomatic Relations (1961) – Article 31 affirms

broad immunity for diplomats.

Lesotho Application:

• Diplomatic Privileges Act 1969 incorporates the Vienna Convention into

domestic law.
• Diplomats in Lesotho enjoy absolute immunity unless they waive it
explicitly.

Sethojane and Others v Korean National Commission of UNESCO -

CIV/APN/353 The Court of Appeal affirmed that diplomatic immunity shields
foreign entities from legal action unless waived. The case illustrates how
Lesotho courts uphold absolute immunity in line with international norms.

Restrictive Immunity

Definition: Restrictive immunity limits protection to acts performed in a

sovereign or official capacity. It excludes immunity for private or commercial
activities, allowing foreign states or diplomats to be sued when acting like private
individuals.

Key Features:

• Immunity applies only to public acts (acta jure imperii).

• No immunity for commercial or private conduct (acta jure gestionis).

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 • Reflects a shift toward accountability and fairness in international law.

International Instrument:

• Convention on Jurisdictional Immunities of States and Their Property

(2004) – Promotes restrictive immunity globally, though not yet universally
adopted.

Trendtex Trading Corporation Ltd v Central Bank of Nigeria [1977] 1 All ER 881
(CA).
Jones v Ministry of Interior of Saudi Arabia [2006] UKHL 26

Lesotho Perspective:

• While Lesotho’s courts have not formally adopted the restrictive doctrine, cases
like Sethojane show an awareness of the distinction between official and
private conduct.
• Future decision may consider changes in the international legal landscape amd
jurisprudence involving foreign entities may invite courts to consider restrictive
immunity, especially in commercial or employment disputes.

Aspect Absolute Immunity Restrictive Immunity

Scope All acts (public and private) Only sovereign/public acts
Suability for commercial
Not allowed Allowed
acts
Jurisdictional Immunities
International support Vienna Convention (1961)
Convention (2004)
Recognized via Diplomatic Emerging awareness in
Lesotho application
Privileges Act 1969 case law

i) Fugitives from Justice

Generally, fugitives from justice—individuals who evade lawful arrest or prosecution—

are barred from instituting legal proceedings, although they may still be sued by
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others. This principle is rooted in the idea that one should not benefit from the legal system
while actively defying it.

j) Unincorporated Associations

Unincorporated associations such as clubs, societies, and informal groups—do not

possess separate legal personality under common law. Their ability to sue or be sued
depends on whether they meet certain legal criteria, are recognized as universitas
personarum, or are granted statutory rights.

• Common Law Position

At common law, unincorporated associations generally lack juristic personality and

cannot litigate in their own name unless recognized by statute or judicial interpretation.
Legal action must be brought by or against individual members or representatives.

Ahmed v Belmont Supermarket 1991 (3) SA (N) – Whether an unincorporated

association. An unincorporated supermarket operated by a group could not sue
or be sued unless it had legal personality or statutory recognition.
DF Scott (EP) (Pty) Ltd v Golden Valley Supermarket [2001] 1 All SA 303 –
Reaffirmed that legal standing depends on whether the entity has juristic
personality and that legal personality of a juristic person is distinct from that of its
owners.

• Universitas Personarum

An unincorporated body may be treated as a universitas personarum—a legal

entity—if it meets certain criteria:

• A constitution or founding document

• Perpetual succession
• Capacity to own property
• Distinct identity from its members

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 Chaba-li-maketse Society v Sibeko C OF A (CIV) No. 50 of 2018 – The court
interpreted provisions of the law relating to the locus standi of an unincorporated
association.

k) Entities/Juristic persons with Statutory Recognition of Legal Capacity

Certain entities are granted the right to litigate through statutory provisions,
which confer legal personality or procedural standing.

• Section 3 of the National University of Lesotho Order No. 19 of 1992

• Section 9(2)(a) of the Companies Act No. 18 of 2011
• Sections 20(1)– (2) of the Societies Act 1966

Minister of Home Affairs v Bickle 1983 (2) SA 457 (ZS) – Addressed the statutory
recognition of legal standing for certain entities.
Tlhoriso Lekatsa and 14 others v Marematlou Freedom Party and Another C of A
(CIV) 42/2022 – The Court deliberated on the authority to represent a voluntary
association.
Wamkulus Construction and Maintenance CC v Sebokuboku Construction and
Water Supply Case No. A143/2015 (Gauteng Division, Pretoria) – Requirement
and importance to clearly separate a juristic person from a natural person in
litigation to avoid dismissal of a case or an unenforceable court order emanating
from incorrect citation of the party with interest.

2.2.2 Consequences of Improper Citation of Parties/Parties with

immunity or no locus standi

a) Dismissal of the Case

• If a party is incorrectly cited (e.g. suing the wrong person or entity), the court may
dismiss the action outright.
• This is especially common when:
o The plaintiff lacks locus standi
o The defendant is not legally liable or does not exist
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Example: In Mohale v Mohale [2007] LSHC 4, the High Court dismissed the case due to
lack of proper standing and citation.

b) Delay in Proceedings

• Improper citation can lead to amendments, re-service, and re-pleading,

causing delays.
• Courts may grant leave to amend, but this wastes time and resources.

c) Costs Orders Against the Plaintiff

• Courts may penalize the party responsible for improper citation by awarding
costs against them.
• This discourages careless litigation and protects the wrongly cited party.

d) Loss of Substantive Rights

• If the error is not corrected within the prescribed time limits, the plaintiff may
lose the right to sue due to prescription (expiry of legal claim).
• This is particularly risky in delictual and contractual claims.

e) Invalid or Unenforceable Judgment

• A judgment against a wrongly cited party may be unenforceable or set aside.

• This undermines the authority of the court and the finality of litigation.

f) Violation of Constitutional Rights

• Improper citation may infringe on:

o The right to a fair trial
o The right to be heard
o The right to legal representation

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 Essence Lading CC v Infiniti Insurance Ltd Mediterranean Shipping Company
(Pty) Ltd (2022/4024) [2023] ZAGPJHC 676; [2023] 3 All SA 410 (GJ) (9 June
2023) – Incorrect citing of a defendant may necessitate withdrawal of a case.
Ramela and Associates v Letseng Diamond & Ors – Case dismissed for lack of
locus standi.
Bochabela Transport Operation v Traffic Commissioner LAC (2009-2010) 432 –
Dismissal of a case due to lack of locus standi.

Consequence Impact
Action fails due to citing a wrong party
Case dismissal
that does not have locus standi.
Amendments and re-service prolong
Procedural delays
litigation
Costs orders Financial penalty for procedural error
Loss of rights Claim may prescribe before correction
Judgment may be overturned or
Invalid judgment
unenforceable

Wamkulus Construction and Maintenance CC v Sebokuboku Construction and Water

Supply Case No. A143/2015 (Gauteng Division, Pretoria) The summons cited a close
corporation on the cover page, but the body of the particulars of claim described the
defendant as a natural person trading under the same name.

The court found that the wrong party was cited, and the default judgment was void ab
initio. Thus, inconsistent or incorrect citation can invalidate proceedings.

2.3 Basic overview of distinction between Motion and Trial Proceedings.

a) Motion Proceedings

• Based on affidavits and written submissions.

• No oral evidence or cross-examination.

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 • Suitable for disputes of law or uncontested facts.

• Faster and more cost-effective.

High Court Civil Litigation Rules, 2024 and Subordinate Court Rules, 1996
– stipulate the procedure in respect of application/motion proceedings and
action/trial proceedings.

b) Trial Proceedings

• Involve oral testimony, cross-examination, and witnesses.

• Used when facts are disputed.

• More formal and time-consuming.

2.4 Parties
a) Plaintiff / Applicant

• The party who initiates the proceedings.

• Known as the plaintiff in action proceedings and applicant in motion

proceedings.

b) Defendant / Respondent

• The party who defends or opposes the claim.

• Called the defendant in action proceedings and respondent in motion

proceedings.

c) Intervening Parties

• Third parties who join the litigation due to a direct and substantial legal
interest in the outcome.

• Must apply for leave to intervene.

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d) Third Parties

• Brought into the proceedings by one of the existing parties, typically through
joinder or third-party notice.

• Often used in indemnity or contribution claims (e.g insurance companies for

third party claims)

e) Nominal Parties - Parties cited for procedural completeness but who may not
have a direct interest There is no fault or liability on their part. e.g executors and
the Attorney General).
f) Representative Parties - Individuals or entities acting on behalf of others, such
as guardians, curators, or trustees.

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