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[2022] ZALMPPHC 2
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Woolworths Tzaneen and Another v Rapatsa (HCA 17/2021) [2022] ZALMPPHC 2 (10 January 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO.: HCA 17/2021
In
the matter between:
WOOLWORTHS
TZANEEN
FIRST
APPELLANT
STEPHANIE
VAN DER MERWE
SECOND
APPELLANT
and
MOKGALE
DAVID RAPATSA
RESPONDENT
JUDGMENT
TSHIDADA,
AJ
1
This is an unopposed
appeal against the whole judgment and order pronounced on 11 March
2021 by the Magistrate Court at Tzaneen,
dismissing a rescission
application launched by the appellants against a default judgment
granted in favour of the respondent herein
in the main action between
the parties.
2
The
current appeal was timeously noted and prosecuted in terms of the
Uniform Rules of the High Court. The appellant filed a notice
of
security in terms of Rule 51(4) of the rules of the court
[1]
.
3
The respondent failed
to file heads of argument and was in default of attendance of the
current proceedings. As already alluded,
the respondent lack of
appearance and non-compliance with filing of its heads of argument
compelled the hearing to continue
on uncontested basis.
THE
FACTS:
4
The
present appeal is borne from the following factual background. That
the respondent instituted an action against the appellants
for
damages allegedly suffered by him, as a result of alleged unlawful
arrest and detention at the behest of the second respondent,
whilst
he the respondent was busy shopping at the first appellant's
store
[2]
.
5
When
the appellants failed to defend the main action, default judgment was
subsequently granted by the
court
a
quo
on
the 2
nd
March
2021 in the amount of R60 000 (sixty thousand rands) against the
appellants jointly and severally together with interest and
costs
[3]
.
6
The
appellants aver to have only became aware of the default judgment
when the respondent proceeded with a warrant of execution
about three
months post the default judgment
[4]
.
7
The
appellants immediately launched a rescission application of the said
judgment of which the respondent opposed
[5]
.
8
In opposition of the
rescission application, the respondent raised a
point
in limine
that
the deponent to the founding affidavit one Jan Lucas Lombard
("Lombard") lacked the requisite
locus
standi
to
depose to the appellants' rescission application founding papers on
the basis that Lombard has no mandate or authority neither
was he in
possession of the company (first appellant)'s resolution to confirm
his
locus
standi
to
act on its behalf.
9
It was this
point
in limine
that
became the bone of contention between the parties when the rescission
application was argued before the
court
a
quo
on 11
March 2021, whereupon the
point
in limine
was
upheld with costs even against Lombard, albeit him not having been
cited as a party in those proceedings.
10
This court finds that
the merits of the rescission application were not dealt with by the
court below.
11
The
appellants requested reasons of the court's ruling and the subsequent
orders within the prescribed period after delivery of
judgment in
terms of Rule 51(1) of the Rules Regulating the Conduct of
Proceedings of the Magistrates Court of South Africa
[6]
.
12
This
court noted from the record that the reply to the request for reasons
from the presiding officer a
quo
regrettably
was simply that, and I quote
"I
will stand by my reasons”
[7]
.
This
is impermissible as the reasons for the court's decision were
required.
13
With dismay, this
court however could not establish any reasons for the ruling and/or
order allegedly so furnished by the presiding
officer from the
attached record of the proceedings of the
court
a
quo,
an issue
that begs a question as to which reasons did the presiding officer
stand by, in terms of her response. This was a misdirection.
14
The court proposes to
deal with the necessity and significance of the presiding officer
providing requested reasons of its findings,
rulings and/or judgment
later in this judgment.
15
Despite the
aforegoing, the appellants launched the present appeal on the
following grounds, that:
The
court
a
quo
erred in upholding the respondent's
point
in limine
relating to the alleged lack of
locus
standi/authority on the part of Lombard, whereas the application
for rescission was instituted and prosecuted by a firm of attorneys
whose authority to act on behalf of the appellants was never
challenged by the respondent in terms of Rule 52(2) of the
Magistrate's
Court rules", for which there would be no need for
Lombard to have additional authorisation from the first respondent,
("my
emphasis").
15.1
The court erred in
not finding that the objection to the lack of
locus
standi/authority
on the part of Lombard was raised in an impermissible manner and
against the provisions of Rule 52(2) of the Rules
Regulating the
Conduct of Proceedings of Magistrates Court. ("the rules")
15.2
As a result and in
the alternative, the court erred by failing to adjourn and postpone
the application in order to enable Lombard
to rectify the defect and
comply with the provisions of Rule 52(2)(b) of the Rules.
I
pause to mention even at the stage that the above attempt by the
appellants to remedy the defect would not have been necessary
as it
shall be demonstrated hereunder.
15.3
The
court
a quo
further
erred by failing to dismiss the respondent's point
in
limine
on
the part of Lombard with costs.
15.4
Furthermore, that the
court erred by ordering Lombard to pay the costs of the application
in his personal capacity, whereas such
costs order was not warranted
or permissible by the facts and/or by law.
THE
ISSUE ON APPEAL:
16
The main and one
issue that remains to be determined by this court and as it were with
the
court
a
quo,
is
whether Lombard required authorisation by the first appellant to
depose to a founding affidavit in support of the appellant's
rescission application or not.
17
It is common cause
that the appellants were throughout these proceedings legally
represented by a firm of attorneys who duly acted
on their behalf
with authority. Lombard deposed to the founding affidavit in the
rescission application on appeal in his capacity
as an authorised
director of Lombard Retail (Pty) Ltd, which company traded as the
first appellant.
18
Rule 54(4) of the
Magistrate's Court Rules allows for a company to sue or be sued in a
firm's name.
19
It
was stated in
Durbach
v Fairway Hotel Ltd
[8]
that
"a denial of authority must be clearly pleaded".
20
In this instance,
there was no clear denial or notice filed in terms of the rules on
the denial of Lombard's authority by the respondent.
The enquiry into
his authority should have ended there and that the improperly raised
point in
limine
should
have been dismissed.
21
Rule 52(2) of the
Magistrate's Court Rules provides as follows:
"(a)
it shall not be necessary for any person to file
a
power of
attorney to act, but the authority of any person acting for
a
party may
be challenged on
notice
by the other party
within 10 days of such party becoming aware that such person is so
acting or with leave of the court on good
cause shown at any time
before judgment.
(b)
if
a
person's
authority to act for
a
party
is challenged, he or she may not, without leave of the court, so act
further until the court is satisfied that her or she
has authority so
to act, and the court
may
adjourn
the hearing of the proceedings to enable him or her to do so."
22
However,
the dispute with regards to the authority to act of a person who is
legally represented in motion proceedings which have
already been
instituted by his/her legal representatives whose power of attorney
has never been challenged, was settled by the
Supreme Court of Appeal
in a matter of
Ganes
and Another v Telecom Namibia Ltd
[9]
at
616 G - I where the court held thus:
"in
determining the question whether
a
person has
been authorised to institute and prosecute motion proceedings, is it
irrelevant whether such person was authorised to
depose to the
founding affidavit. The deponent to an affidavit in motion
proceedings need not be authorised by the party concerned
to depose
to the affidavit.
It
is the institution of the proceedings and the prosecution thereof
that must be authorised.
Thus, where, as in
the present case, the motion proceedings were instituted and
prosecuted by a firm of attorneys purporting to
act on behalf of the
applicant and in an affidavit filed with the notice of motion."
See
also the matter of
Masako v Masako & Another (Case No.:
724/20)
[2021] ZASCA 168
(3 December 2021)
23
It is therefore no
brainer that Lombard required no authorisation, nor was he required
or expected to prove that he had the requisite
authority to depose to
the rescission application founding papers in support of the
appellant's rescission application before the
court
a
quo.
24
It is clear from the
record that the
court
a
quo
was
adamant that authorisation on the part of Lombard was required and
necessary, despite reference by the respondent's counsel
at the
hearing to the
Ganes
case
referred
supra.
25
Regardless,
it is apparent that the respondent's counsel did not understand the
principle regarding the need for authorisation to
depose to an
affidavit on behalf of a legally represented entity, as enunciated in
the referred authority, inspite quoting and
referring the court to
the stated case law
[10]
.
26
It is unsurmountable
to imagine that the
court
a
quo
does not
seem to have had any regard to consider the relevant authority as
referred to by the respondent's counsel. Undoubtedly,
if it was
considered and understood on principle, clearly the
point
in limine
raised
would have been dealt with differently.
27
Instead,
without proper consideration of the matter, the
court
a
quo
was
inappropriately convinced that the
point
in limine
was
valid, and that there was no authority deposed to in the affidavit by
Lombard, lastly, that Lombard was not in possession
of a
resolution to prosecute the matter, when in actual fact and in law it
was not necessary for Lombard to have the sought authorisation
[11]
.
28
It is on this point
that when viewed alone, this court finds that the
court
a
quo
misdirected
itself and erred in upholding the point raised by the respondent
without proper reasons or basis for its finding.
29
Under those
circumstances, the respondent's
points
in limine
ought
to fail.
30
By no stretch of
imagination, if in the first place the
point
in limine
was
erroneously upheld by the
court
a
quo,
the costs
order against Lombard on a wrong finding is also bound to fail and
therefore set aside.
31
The
court
a
quo
accordingly
erred in ordering Lombard to pay costs in his personal capacity when
he was not even a party to the application. It
failed to even afford
Lombard an opportunity in terms of the
audi
alteram partem rule
to
present reasons as to why costs should not be ordered against him,
under circumstances where such costs order was not warranted
or
permitted by facts and/or law.
32
I now turn to deal
with the importance and necessity of a presiding officer/ court to
furnish reasons for its findings and/or judgments.
33
Goldstone
J had the following to say in a Constitutional Court matter of
Vincent
Maredi Mphahlele v The First National Bank of South Africa
[12]
,
thus;
"The
rule of law undoubtedly requires judges/courts not to act arbitrary
and to be accountable. The manner in which they ordinarily
c1ccount
for their decisions is by furnishing reasons. This serves
a
number of
purposes. It explains to the parties, and to the public at large
which has an interest in courts being open and transparent,
why
a
case is
decided as it is. It is
a
discipline
which curbs arbitrary judicial decisions. Then, too, it is essential
for the appeal process, enabling the loosing party
to take an
informed decision as to whether or not to appeal or, where necessary,
seek to appeal. It assists the appeal court to
decide whether or not
the order of the lower court is correct."
34
I find it
disconcerting that there are courts which still neglects and fail to
promote and uphold the rule of law by accounting
for their decisions.
It is undesirable, unacceptable situation and unbecoming conduct
least expected of a judicial officer.
35
Sanctity and
integrity of the judicial processes is what defines our country's
judicial justice system.
36
This court is
displeased and finds it absurd to discover and observe that no clear
reasons for the presiding officer's ruling appears
on the record of
the
court a
quo's
proceedings,
as it appears on the face of her reply which lacks elaboration to the
appellant's request.
37
In
S
v Hadebe and Others
[13]
it
was stated that in the absence of demonstratable and material
misdirection by the trial court, its findings of fact and the law
are
presumed to be correct and will only be disregarded if the recorded
evidence shows them to be clearly wrong.
38
This court is
satisfied that the
court
a
quo
misdirected
itself materially on the point of law as envisaged in
Ganes
supra.
The
challenge on Lombard's authority was wrong in law.
39
Therefore, as an
appeal court, this court is enjoined to interfere and upset the
court
a
quo's
finding.
40
In the premises this
court finds that the appeal should be upheld with costs.
41
Accordingly, the
order granted by this court hereunder on 29 October 2021 is for all
the reasons given hereby confirmed.
ORDER
(a)
The appeal is upheld.
(b)
The decision / order
of the court a quo upholding the
point
in limine
is
set aside.
(c)
The rescission
application is remitted to the
court
a
quo
for
hearing on the merits before another presiding officer.
(d)
The respondent is
ordered to pay the costs.
TC
TSHIDADA
ACTING
JUDGE
LIMPOPO
DIVISION, POLOKWANE
I
agree, and it is so ordered:
MG
PHATUDI
JUDGE
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
1.
For the Appellants
Adv
R Grundlingh
2.
Instructed by
Joubert
& May Attorneys, Tzaneen
3.
For the Respondent
No
appearances
4.
Date of hearing
29
October 2021
5.
Order delivered
29
October 2021
6.
Date revised
Full
text of the judgement electronically circulated to the parties
legal representatives on the 10
th
January 2022. It
is also to be uploaded on SAAFLl's website.
[1]
Record:
pp.5 - 8, pp. 98 - 100
[2]
Record:
POC, pp. 12 - 13
[3]
Record:
pp. 35
[4]
Record:
pp. 52 - 53
[5]
Record:
pp. 40 - 51
[6]
Record:
pp. 95 - 96
[7]
Record:
pp. 97
[8]
1949
(3) SA 1081 (SR)
[9]
2004
(3) SA 615 (SCA)
[10]
Record:
pg. 85, Line 20, pp. 86
[11]
Record:
pg. 92, Line 15 - 20
[12]
[1999] ZACC 1
;
1999
(2) SA 667
(CC) at 671
[13]
1997
(2) SACR 644
(SCA) at 645, e - f