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[2019] ZALMPPHC 62
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Mokgotho Building Construction CC and Another v Iliad Africa Trading (Pty) Ltd (446/2013) [2019] ZALMPPHC 62 (27 November 2019)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NUMBER: 446/2013
In
the matter between:
MOKGOTHO
BUILDING CONSTRUCTION CC
1
ST
APPLICANT
MBOYENG
THOMAS MOKGOTHO
2
ND
APPLICANT
And
ILIAD
AFRICA TRADING (PTY)
LTD
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The
respondent who is the plaintiff in the main action has instituted an
action against the applicants who are the defendants in
the main
action for alleged breach of contract. The applicants have defended
the respondent’s action.
[2]
The matter was set down for trial on the 11
th
September 2017. The applicants failed to attend court on that date
and the respondent obtained a default judgment against the
applicants.
[3]
The applicants have brought a rescission application seeking an order
that the default judgment
that was obtained by the respondent on the
11
th
September 2017 be rescinded. The respondent is opposing the
applicants’ rescission application. The deponent of the
respondent’s
answering affidavit is one Cornelius Loubser who
has stated that he is a Divisional Credit Manager employed by
Steinhoff Doors
and Building Materials (Pty) Ltd. He has further
stated that the respondent is a subsidiary of Steinhoff, and
therefore he is authorised
to depose the answering affidavit. He has
also attached the alleged resolution which authorizes him to act.
[4]
The applicants in their replying affidavit have raised a point in
limine challenging the
authority of the deponent of the
answering to depose it. It is the applicants’ contention that
the resolution attached to
the answering affidavit makes no mention
of the respondent. The applicants did not serve the respondent with a
notice in terms
of Rule 7(1) of the Uniform Rules of Court (the
Rules).
[5]
Rule 7(1) provides as follows:
“
(
1)
Subject to the provisions of sub-rules (2) and (3) a power of
attorney to act need not be filed, but 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 a person is so acting, or with the
leave of the
court on good cause shown at any time before judgment, be disputed,
whereafter such a person may no longer act unless
he satisfies the
court that he is authorised to so act, and to enable him to do so the
court may postpone the hearing of the action
or application.”
[6]
In
Unlawful
Occupiers School Site v City of Johannesburg
[1]
Brand
JA at 206 G-H said:
“
The
import of the judgment in Eskom is that the remedy of a respondent
who wishes to challenge the authority of a person allegedly
acting on
behalf of a purported applicant is provided for in Rule 7(1) of the
Uniform Rules of Court.”
[7]
It is trite that a deponent to an affidavit in motion proceedings
need not be authorized by the
party concerned to depose to the
affidavit. It is the institution of the proceedings and the
prosecution thereof that must be authorized.
(See
Ganes and Another v Telecom Namibia Ltd
[2]
).
[8]
The applicants have challenged the authority of the respondent to
sign the answering affidavit
for the first time in their replying
affidavit. They at no stage served the respondent with a Rule 7(1)
notice. The applicants
are challenging the authority of the deponent
to depose the answering affidavit and not the authority to oppose the
application.
[9]
The deponent of the answering affidavit has stated that he was duly
authorised to depose the affidavit.
The affidavit was made under oath
which makes it evidence, and he alleges that the evidence is within
his personal knowledge. The
applicants in their replying affidavit
have merely denied the allegations and stated that there is no proof
that the deponent has
sufficient authority to attest to the
affidavit. It did not present the basis for its denial.
[10]
As held in Ganes supra, the deponent to an affidavit in motion
proceedings need not be authorised by the
party concerned to depose
the affidavit, but it is the institution and the prosecution which
but be authorised. In this case it
will be the decision to oppose the
applicants’ application that must be authorised, and as I have
already pointed out in
paragraph 8 above. The applicants did not seem
to be challenging the authority to oppose its application, but the
authority to
depose the answering affidavit. In my view, the
challenge of the authority to depose to the answering affidavit is
entirely misconceived
(See
FirstRand Bank v Fillis
[3]
).
[11]
An applicant who wishes to challenge the authority of a person
allegedly acting on behalf of the purported
applicant must not to
challenge the authority in the replying affidavit, but must do so in
terms of Rule 7(1) of the Rules. The
applicants did not avail
themselves of the procedure provided for in Rule 7(1) and are
therefore not entitled to challenge the
authority of the deponent of
the respondent’s answering affidavit in their replying
affidavit. The applicants’ point
in limine has therefore no
merit and stand to fail.
[12]
In the result I make the following order.
12.1
The applicants’ point in limine of lack of authority is
dismissed with costs on party and party scale.
MF.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
For
the plaintiff
: Adv. S. Makoasha
Instructed
by :
Becker Attorneys
Unit
2 Proforum Building, Bendor
For
the Defendant
: Adv.
M. Jacobs
Instructed
by
: PMK Tladi & Associates
20
Schoeman Street, Polokwane
Date
of hearing
: 04 NOVEMBER 2019
Date
of Judgment
:
27
TH
NOVEMBER 2019
[1]
2005 (4) SA 199 (SCA)
[2]
2004(4) SA 615 (SCA) at 19.
[3]
2010 (6) SA 565
(ECP)