About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 500
|
|
Joubert and Others v Close to Home Trading 546 CC and Another (2595/2023) [2023] ZAFSHC 500 (21 December 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
2595/2023
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
PIETER
JOHANNES JOUBERT
1st Applicant
PETRUS
JOHANNES JOUBERT N.O.
2nd Applicant
THARISA
JOUBERT N.O.
3rd Applicant
[
In their capacity as Trustees of the
Fiesta
Trust, IT No: 652/04]
And
CLOSE
TO HOME TRADING 546 CC
1st Respondent
MIDWICKET
TRADING 556 CC
2nd Respondent
In
re:
CLOSE
TO HOME TRADING 546 CC
1st Plaintiff
MIDWICKET
TRADING 556 CC
2nd Plaintiff
And
PIETER
JOHANNES JOUBERT
1st Defendant
PETRUS
JOHANNES JOUBERT N.O.
2nd Defendant
THARISA
JOUBERT N.O.
3rd Defendant
CHRIESTIE
WAGENAAR N.O.
[In
their capacity as Trustees for the time being
of
the Fiesta Trust, IT No: 652/04]
4th Defendant
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
7
SEPTEMBER 2023
DELIVERED
ON:
21 DECEMBER 2023
[1]
The Respondents in this interlocutory
application instituted an action against the First Applicant, in his
personal capacity, and
the remaining Applicants in their capacity as
Trustees for the time being of the Fiesta Trust No: 652/04.
[2]
The First, Second, and Third Applicants as Defendants in the main
action
delivered a notice in terms of Uniform Rule 7(1) disputing and
challenging the authority of Kramer Weihmann Inc. (KW Inc.) to act
and represent the Respondents as Plaintiffs in the main action.
[3]
The Respondents replied to the notice by filing a resolution as
herein
set out:
“
RESOLUSIE
DEUR DIE LEDE CLOSE TO HOME TRADING 546 CC H/A OOBA REGIESTRASIE NO:
2010/080944/23 EN MIDWICKET TRADING 556 H/A CBC REGISTRASIE
NO:
2008/149422/23 GENEEM TYDENS N VERGADERING GEHOU TE BLOEMFONTEIN OP
14
th
May 2023.
RESOLUSIE:
Die aktiewe/meerderheid
lede van die hierin bogemelde beslote korporasies
bevestig en kom hiermee
soos volg, ooereen:
1.
N aksie teen Mnr Petrus Johannes Joubert
(ID NO :7[...]) ingestel moet word;
2.
Dat Mnr Jacques Nortje (ID NO :6[...])
lid van die gemelde beslote korporasies gemagtig word om alle
instruksies uit te voer om
gehoor te gee aan gemelde voornemende
aksie ingestel te word en alle dokumente te onderteken welke nodig
mag wees vir uitvoering
van sy pligte namens die gemelde beslote
korporasies.
3.
Dat Kramer Weihmann Ingelyf aangestel
word as die prokureurs om namens die gemelde beslote korporasies as
prokureurs van record
op te tree in enige aksie en /of aansoek
procedure namens en teen gemelde beslote korporasies
[4]
The Applicants were not satisfied with the response. They informed
the Respondents
by way of a letter of their dissatisfaction and
pointed, according to them, that (1) neither of the Plaintiffs
resolved to institute
legal proceedings against the trustees of the
Fiesta Trust;(2) neither of the Plaintiffs resolved to give KW Inc.
the authority
to represent and act on behalf of either of the
Plaintiffs in legal proceedings against the Trustees of Fiesta
Trust;(3 ) Neither
of the Plaintiffs provided KW Inc. with power of
attorney to represent and act on behalf of either of the
Plaintiffs;(4) the nature
of the authority given to KW Inc. as to the
nature of the action to be instituted and the relief sought and the
parties to be sued.
[5]
It is submitted on behalf of the Applicants that the answering
affidavit
of Mr. Nortje on behalf of KW Inc. does not address the
dispute and challenge of the authority of KW Inc. to represent and
act
on behalf of the Plaintiffs in the main action. The Applicants
also submit that KW.Inc. has failed to provide an appropriately
worded resolution to satisfy the court of its authority to act.
[6]
It is submitted on behalf of the Respondents. that the First
Applicant is a
former director of KW Inc. That he knows that all the
remaining directors of KW Inc. have a members’ interest in
Close to
Home and Midwicket. That all the remaining members had
signed the resolution sought to be impugned in this case. It is
further
submitted that the Respondents were joined on the basis of
‘notification’ and that the action is aimed at the First
Applicant and no relief is sought against the remaining Applicants.
In so far as the Trust seems to be one of the Applicants, Mr
Nortje
on behalf of KW Inc. deny that these proceedings have been validly
instituted.
[7]
It is trite law that unless the trust deed stipulates
otherwise, trustees must act jointly.
Further, unless the trust deed
provides otherwise, the trustees may authorise someone else,
including one of the trustees to act
on their behalf.
[8]
As far as the Trust is concerned, the particulars of the claim in the
main action suggest that it has three trustees, namely, the Second
and Third Applicants in this interlocutory applicant and one
Christie
Wagenaar. The attack on the authority of KW Inc. to act is
mounted by the Second and Third Applicant only. No authorization
was
filed giving authority to the Second and Third Applicants to act for
the Trust. The Third Trustee does not seem to be involved
in this
application. This is evident from the Rule 7(1) notice where it is
pertinently stated that the ‘First, Second, and
Third
Defendants dispute and challenge the authority of KW Inc.” to
represent the Respondents.
[9]
The citation of the parties in this interlocutory application also
excludes Christie
Wagenaar. One would obviously doubt, as contended
by Mr Nortje that this interlocutory application is validly
instituted by the
Trust in the absence of Christie Wagenaar. The fact
that Christie Wagenaar is also represented by another firm of
attorneys creates
more doubt that he sanctioned this interlocutory
application. The contention by the Applicants that the
Respondents have
failed to raise the challenge in the appropriate
manner does not hold water. The fact is that the Trustees must act
jointly otherwise
the actions they take where one or more does not
act is a nullity. Rule 7(1) is concerned with the mandate of
attorneys to act,
not of the mandate of a party to act for another
party in a suit. In so far as the Trust is concerned, this should be
the end of
their challenge to the authority of KW Inc. In the absence
of satisfaction to this court that all three Trustees jointly act in
these proceedings, I cannot find that the application is validly
instituted by the Trust.
[10]
It cannot be contended that the resolution filed in response to Rule
7(1) is a model of perfection.
It lacks particularity as to the
nature of the action to be instituted as well as the relief sought.
It is too broad. It can practically
include anything. With this in
mind, however, it must be borne in mind that Rule 7(1) lays no
procedure to be followed by the party
challenging the authority of an
attorney. The parties are in agreement that the person whose
authority is impugned must satisfy
the court that he is so entitled
to act and to represent another party. Where a notice has been
delivered in terms of the Rule
and a response furnished, the Rule
also does not set out how the court should resolve the impasse where
non-compliance is alleged.
The court in
Eriksson
v Hollard Insurance Limited and Others
[1]
said
the following:
“
Rule
7(1) does not set out what evidential material should be placed
before court by an attorney to satisfy the court that he or
she has
been mandated to represent clients, in this instance, the plaintiffs.
It was argued on behalf of the plaintiffs that ‘
satisfies’
does not imply a burden of proof. In my
view, a court will reasonably determine whether it is satisfied with
the material placed
before it to rule whether a mandate has been
shown. The court will act subjectively, but as a reasonable judge
which brings into
the equation an objective yardstick. One of the
reasons for a challenge to the authority of an attorney is not to be
faced with
a situation where an unsuccessful plaintiff, faced with a
cost order, denies the authority of the attorney who instituted the
proceedings.
In my view, a court will consider the documents filed as
proof of authority and consider whether, on a balance of
probabilities,
the attorney was mandated or not.”
[11]
I agree with the sentiments expressed in Erikson, it is the court
that must be satisfied, not a party,
that the person acting has the
necessary authority. In my view, the resolution filed authorises an
action against the First Applicant.
Any doubt about the challenge of
the authority of KW Inc. was laid to rest when all the close
corporations members confirmed the
authority in favour of KW Inc.
This court is satisfied that KW Inc. is duly authorised to institute
this action against the Applicants.
I make this order:
ORDER
1.
The application is dismissed;
2.
The costs shall be costs in the cause.
P.
E MOLITSOANE, J
On
behalf of the Applicants:
Adv.
G.W AMM
Instructed
by:
Peyper
Attorneys
BLOEMFONTEIN
On
behalf of the Respondents:
Adv.
S Grobler
Instructed
by:
KW
Inc.
BLOEMFONTEIN
[1]
(2021/45339) [2023] ZAGP JHC39(24 January 2023) para 23.