Nedbank Ltd v Mabulu N.O and Others (3367/2021) [2022] ZAFSHC 32 (3 March 2022)

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[2022] ZAFSHC 32
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Nedbank Ltd v Mabulu N.O and Others (3367/2021) [2022] ZAFSHC 32 (3 March 2022)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
3367/2021
In the matter
between:
NEDBANK
LTD
Plaintiff
and
RASEKOANE VINCENT
MABULU N.O.
1
st
Defendant
NEO LAWRENCE
MABULU N.O.
2
nd
Defendant
ANTHONY DE
VILLIERS N.O.
3
rd
Defendant
[cited herein in
their capacities as the duly authorised trustees
of the Mabulu Trust,
IT544/2021]
ANTHONY DE
VILLIERS N.O.
4
th
Defendant
[in his capacity as
the executor of the deceased estate
of RASEKOANE VINCENT
MABULU]
MAMPAI ANNAH
MABULU
5
th
Defendant
HEARD
ON:
3
FEBRUARY 2022
JUDGEMENT
BY:
LITHEKO, AJ
DELIVERED
ON:
3 MARCH 2022
[1]
This matter involves two applications. Firstly, there is an
application by the second
defendant to set aside the plaintiff’s
application for a default judgement on the basis that it is an
irregular step, and, secondly,
the adjudication of the disputed
authority of Mathunjwa Incorporated attorneys (Mathunjwa Inc.) to act
on behalf of the second defendant.
[2]
The plaintiff issued summons out of this court on 22
nd
July 2021, claim 1 being for a debt owing in respect of money lent
and advanced and claim 2 alleged to be debt due in respect of
money
overdrawn from a current banking account in terms of an overdraft
facility. The summons was duly served on the 28
th
July 2021 upon the fourth and fifth defendants and, on the 2
nd
August 2021 upon the first, second and third defendants. The first,
second and third defendants are sued in their representative
capacities as the Trustees of the Mabulu Trust, the fourth defendant
in his representative capacity as the executor of the estate
of the
late Rasekoane Vincent Mabulu and the fifth defendant in her personal
capacity. The fourth and fifth defendant did not enter
appearance to
defend and on the 28
th
September 2021 judgment was granted against them for payment of
R867,028.52 together with interest and costs in respect of claim
1
and for payment of R186,856.02 plus costs in respect of claim 2.
[3]
On the 16
th
of
August, 2021,
Mathunjwa
Inc.
entered appearance to defend on
instructions of the second defendant and, 11 days later, on the 31
st
August 2021, the plaintiff delivered a notice in terms of Uniform
Rule 7(1) disputing their authority to act on behalf of the second
defendant. On the 10
th
September 2021, the second defendant served and filed a power of
attorney to which, on the 22
nd
September 2021, the plaintiff objected on grounds that it was given
by the second defendant in his personal capacity and not in his
representative capacity as Trustee of the Mabulu Trust. On the same
date, i.e. the 22
nd
September 2021, the plaintiff served a notice of application for
default judgment against first, second and third defendants.
[4]
I am called upon to decide the following issues:
4.1 whether the
plaintiff’s application for default judgment against second
defendant is an irregular step, and,
4.2 whether
Mathunjwa Inc.
have authority to act on
behalf of the second defendant.
[5]
In order to deal
properly with the issues raised
by the applications before me, it is appropriate to refer to the
Uniform Rules whereupon the applications
are based.
[6]
Uniform Rule 7(1) provides that:
“
Subject to the
provisions of subrules (2) and (3) a power of attorney to act need
not be filed, but the authority of anyone acting
on behalf of a party
may, within 10 days after it has come to the notice of a party that
such person is so acting, or with the leave
of the court on good
cause shown at any time before judgment, be disputed, whereafter such
person may no longer act unless he satisfied
the court that he is
authorised so to act, and to enable him to do so the court may
postpone the hearing of the action or application.”
[7]
Uniform Rule 30 provides as follows:
“
(1)
A party to a cause in which an irregular step has been taken by any
other party may apply to court to set it aside.
(2)
An application in terms of subrule (1) shall be on notice to all
parties specifying particulars of the irregularity or impropriety
alleged, and may be made only if —
(a)
the applicant has not himself taken a further step in the cause with
knowledge of the irregularity;
(b)
the applicant has, within ten days of becoming aware of the step, by
written notice afforded his opponent an opportunity of removing
the
cause of complaint within ten days;
(c)
the application is delivered within fifteen days after the expiry of
the second period mentioned in paragraph (b) of subrule (2).
(3) If at the
hearing of such application the court is of opinion that the
proceeding or step is irregular or improper, it may set
it aside in
whole or in part, either as against all the parties or as against
some of them, and grant leave to amend or make any
such order as to
it seems meet.”
[8]
Rule 30A provides that:
“
(1) Where a party
fails to comply with these rules or with a request made or notice
given pursuant thereto, or with an order or direction
made in a
judicial case management process referred to in rule 37A, any other
party may notify the defaulting party that he or she
intends, after
the lapse of 10 days from the date of delivery of such notification,
to apply for an order —
(a)
that
such rule, notice, request, order or direction be complied with; or
(b)
that
the claim or defence be struck out.
(2) Where a party
fails to comply within the period of 10 days contemplated in subrule
(1), application may on notice be made to the
court and the court may
make such order thereon as it deems fit.”
[9]
The basis whereupon the authority of
Mathunjwa
Inc. was disputed is, (a) that the second defendant gave the power of
attorney in his personal and not representative capacity,
despite
having been sued in his representative capacity as a Trustee of the
Mabulu Trust, and (b) that the Trust Deed provides that
there shall
be at least two (2) Trustees in office. The second defendant was, at
the time the only Trustee. For these reasons, the
plaintiff
disregarded the second defendant’s appearance to defend and applied
for a default judgement. This application for default
judgement
prompted the second defendant’s application in terms of Uniform
Rule 30 and 30A seeking an order to set it aside as an
irregular or
improper step.
[10]
On the 31
st
January 2022, the second defendant served and
filed a plea, notwithstanding the fact that the application in terms
of Uniform Rule
30 and 30A had not been heard and was set down for
hearing on the 3
rd
February 2022.
[11]
On the 3
rd
February 2022, Mr. Pela, who appeared on behalf
of the second defendant, applied for a postponement which Mr. Benadè,
on behalf
of the plaintiff, opposed. I dismissed the application and
ordered that the matter proceed, whereupon Ms. Masia of Masia
Attorneys
Incorporated, a correspondent of Mathunjwa Inc., took over
on behalf of the second defendant.
[12]
Ms. Masia argued that although the Trust Deed stipulated that there
shall be a minimum of two (2) trustees,
and the second defendant was
the only trustee at the time of the delivery of the appearance to
defend and when the power of attorney
was signed, he was authorised
in terms of the Trust Deed to mandate Mathunjwa Inc. as the only
prohibition in the Trust Deed related
to distribution of income,
capital or amendment of the Trust Deed. She submitted that
plaintiff’s disregard of the second defendant's
appearance to
defend constituted an infringement of his constitutional right “to
have a dispute that can be resolved by the application
of law decided
in a fair public hearing before a court or where appropriate, another
independent and impartial tribunal or forum.”
[1]
[13]
Mr. Benadè argued, correctly so, that a trustee, although he or she
acts on the authority given by the
Master of the High Court, any act
that he or she performs must be so performed in terms of the
provisions of the Trust Deed. In the
event that a Trust Deed requires
specified minimum number of trustees to hold office, when fewer
numbers than the number specified
are in office, that Trust suffers
from an incapacity that precludes action on its behalf.
[2]
He contended that because from the time of the filing of the
appearance to defend up to and including the date on which the
Master
of the High Court issued new Letters of Authority, i.e. the 10
th
December 2021, the Trust was incapacitated and consequently any
action on its behalf was precluded.
[14]
Although Counsel for the second defendant and the plaintiff argued
the merits of the applications at
length, they eventually agreed that
the issues that were raised in the applications were addressed in the
second defendant’s plea.
What was then left for adjudication was
the issue of costs occasioned by the interlocutory applications that
were enrolled for hearing
on the 3
rd
February 2022. I have
dealt briefly with the issues herein involved on the basis that they
have a bearing on costs.
[15]
It is a trite principle of our law that a court considering an order
of costs exercises a discretion,
[3]
which must be exercised judicially.
[4]
[18]
Uniform Rule 7(1) requires a party
[5]
disputing the authority of another to do so within 10 days after
becoming aware that such other party is so acting. After the expiry
of a period of 10 days, such authority to act can be disputed at any
time prior to judgment only with the leave of the court and
upon good
cause shown. A perusal of the pleadings has revealed that the
plaintiff became aware of the fact that
Mathunjwa
Inc.
were acting on behalf of the second defendant on the 16
th
August 2021 and only disputed their authority to act on the 31
st
August 2021, eleven days later. In the circumstances,
Mathunjwa
Inc.’s
authority could only be properly disputed with the leave of court and
on good cause shown. As such leave was neither sought nor granted,
the plaintiff’s objection to the authority of Mathunjwa Inc. to act
on behalf of the second defendant cannot be entertained.
[6]
[19]
It follows that the second defendant’s application in terms of
Uniform Rule 30, to set aside the plaintiff’s
request for default
judgement as an irregular step, must, in the circumstances, succeed.
Although I make no ruling in this regard,
I am of the view that, the
provisions of Uniform Rule 30A, which deals with general
non-compliance with rules, did not find application
in the second
defendant’s application.
[20]
In conclusion, and in the light my finding above and the fact that
Counsel were in agreement that the
second defendant has purged his
default by attaching relevant documents to the plea in proof of
compliance with the terms of the
Trust Deed, it seems equitable and
competent to set aside the application for default judgement. There
is no reason why the costs
should not follow the cause.
[21]
I therefore make the following order:
21.1
The plaintiff’s application for default judgement is set aside as
an improper step.
21.3
The plaintiff is ordered to pay the costs.
S.
LITHEKO, AJ
For
the Applicants:
Adv. H. J. Benadè
Instructed
by:
Symington & De Kok Attorneys
Bloemfontein
For
the Respondents:
Adv. T. J. Pela and Me S. Masia
Instructed
by:
Mathjunwa Incorporated Attorneys
c/o Masia Attorneys
Inc.
Bloemfontein
/roosthuizen
[1]
Section 34 of the
Constitution, 1996.
[2]
Land and
Agricultural Bank of South Africa v Parker and Others 2005(2) SA
77(SCA) at paragraph 11.
[3]
Ferreira
v Levin NO & Others; Vryenhoek & Others v Powell NO &
Others
[1996] ZACC 27
;
1996 (2) SA 621
(CC) at paragraph 3.
[4]
Motaung v Mukubela and
Another, NN.O; Motaung v Mothiba, NO
1975 (1) SA 618
(O) at 631A.
[5]
In terms of
Uniform
Rule 1, ‘party’ or any reference to a plaintiff or other
litigant in terms, shall include his attorney with or without
an
advocate, as the context may require.
[6]
Janse
van Rensburg v Obiang and Another (A338/2018, 22470/2015)
[2019]
ZAWCHC 53
(10 May 2019) at paragraph 17.