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[2019] ZAWCHC 53
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Janse van Rensburg v Obiang and Another (A338/2018, 22470/2015) [2019] ZAWCHC 53 (10 May 2019)
Republic of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
First instance case no. 22470/2015
Appeal case no. A 338/2018
Before: The Hon. Ms Justice Goliath (Deputy Judge President)
The Hon. Mr Justice Binns-Ward
The Hon. Ms Justice Fortuin
Date of hearing: 3 May 2019
Date of judgment: 10 May 2019
In the matter between:
DANIËL WELMAN JANSE VAN
RENSBURG
Applicant
and
THEODORIN
NGUEMA OBIANG
First Respondent
THE
REGISTRAR OF
DEEDS
Second
Respondent
JUDGMENT
BINNS-WARD J (GOLIATH DJP and FORTUIN J concurring):
[1]
The applicant obtained an order attaching
certain immovable property owned locally by the first respondent (to
whom I shall hereinafter
refer simply as ‘the respondent’)
for the purpose of founding the jurisdiction of this court to
determine an action
for damages since instituted by the applicant
against the respondent arising out of the applicant’s allegedly
unlawful detention
in Equatorial Guinea. The respondent, who is
the vice president of Equatorial Guinea, is being sued in the action
in his
personal capacity for acts perpetrated pursuant to the powers
he exercised, allegedly unlawfully, as vice president and (according
to the applicant’s particulars of claim) ‘
de
facto
head of Equatorial Guinea’.
[2]
On 2 July 2018, the Supreme Court of
Appeal granted the respondent leave to appeal against the judgment
attaching his property
ad fundandam
jurisdictionem
. It directed that
the appeal should be heard by the Full Court of this Division.
The respondent subsequently delivered
his notice of appeal on 30 July
2018, within the period afforded in terms of rule 49 of the Uniform
Rules of Court.
An application to the registrar for the set
down of the appeal was filed by the respondent’s attorney on
24 October
2018. The appeal has been set down by the
registrar for hearing on 29 July 2019.
[3]
This judgment pertains to an application
that the applicant instituted on 29 January 2019,
[1]
in which he has sought the following relief (I quote from the notice
of motion):
1.
That the … respondent’s
appeal is struck out;
2.
That the … respondent be
ordered to pay the applicant’s wasted costs in the appeal;
3.
That the … respondent be
ordered to pay the costs of this application;
4.
That such further or alternative
relief be granted to the applicant.
The application was brought under the case number of the attachment
proceedings at first instance (case no. 22470/2015),
notwithstanding that those proceedings had been concluded at that
level, and any further proceedings in relation to the order that
had
been made therefore fell within the remit of the court exercising its
appellate jurisdiction; hence the hearing of the application
by a
bench of three judges.
[4]
The bases upon which the application was
brought were given in the applicant’s supporting affidavit as –
1.
the respondent’s ‘failure to
deliver a lawful Power of Attorney as envisaged in terms of the
Uniform Rules of Court’;
and
2.
the respondent’s ‘failure to
put up sufficient (or any) security for the cost of the appeal before
filing the record’.
I shall treat of them in the order in which they were stated.
Failure to file ‘a lawful Power of Attorney’
[5]
The first of the aforementioned bases of
the application was founded on the applicant’s apprehension of
the effect of rule
7(2) of the Uniform Rules, read with the
provisions of rule 63 in respect of the authentication of documents
executed outside the
Republic for use within the Republic, in the
context of the respondent’s application to the registrar, in
terms of rule 49(6),
for the set down of the appeal.
[6]
Rule 7(2) provides:
The
registrar shall not set down any appeal at the instance of an
attorney unless such attorney has filed with the registrar a power
of
attorney authorising him to appeal and such power of attorney shall
be filed together with the application for a date of hearing.
and rule 63 provides (insofar as relevant for present purposes):
Authentication of documents executed outside the
republic for use within the republic.
(1)
In this rule, unless inconsistent with the context—
“
document
”
means any deed, contract, power of attorney, affidavit or other
writing, but does not include an affidavit or solemn or
attested
declaration purporting to have been made before an officer prescribed
by section eight of the Justices of the Peace and
Commissioners of
Oaths Act, 1963 (Act No. 16 of 1963);
“
authentication
”
means, when applied to a document, the verification of any signature
thereon.
(2)
Any document executed in any place outside the Republic shall be
deemed to be sufficiently authenticated for the purpose of use in the
Republic if it be duly authenticated at such foreign place
by the
signature and seal of office—
(a)
of the head of a South African diplomatic or consular mission or
a
person in the administrative or professional division of the public
service serving at a South African diplomatic, consular or
trade
office abroad; or
(b)
of a consul-general, consul, vice-consul or consular agent of the
United
Kingdom or any person acting in any of the aforementioned
capacities or a pro-consul of the United Kingdom; or
(c)
of any Government authority of such foreign place charged with the
authentication of documents under the law of that foreign country; or
(d)
of any person in such foreign place who shall be shown by a
certificate
of any person referred to in paragraph (a), (b) or (c) or
of any diplomatic or consular officer of such foreign country in the
Republic to be duly authorised to authenticate such document under
the law of that foreign country; or
(e)
of a notary public in the United Kingdom of Great Britain and
Northern
Ireland or in Zimbabwe, Lesotho, Botswana or Swaziland; or
( f )
of a commissioned officer of the South African Defence Force as
defined in section
one of the Defence Act, 1957 (Act No. 44 of 1957),
in the case of a document executed by any person on active service.
(2A) …
(3)
...
(4)
Notwithstanding anything in this rule contained, any court of law
or
public office may accept as sufficiently authenticated any document
which is shown to the satisfaction of such court or the
office, to
have been actually signed by the person purporting to have signed
such document.
(5)
…
[7]
Rule 49(6) provides that if an appellant
does not timeously apply to the registrar for the appeal to be set
down, the appeal shall
be deemed to have lapsed. The
respondent’s application for the set down of the appeal was
made timeously. It
was made on his behalf by his attorney.
As required in terms of the subrule, the attorney vouched his
authority to make the
application by filing a special power of
attorney. On its face, the power of attorney purported to have
been executed by
the appellant at Malabo on 6 February 2018.
Malabo is the capital of Equatorial Guinea. A copy of the
document was
attached to the applicant’s supporting affidavit:
[SEE RTF and PDF VERSIONS FOR ANNEXURE]
[8]
It is evident that the power of attorney
had not been authenticated in any of the ways provided for in terms
of rule 63(2).
The applicant raised an objection and gave
notice in terms of rule 30(2)(b) that he considered that the service
of the record and
the filing by the respondent of a notice in terms
of rule 49(6)(a) was an irregular step, in that the respondent had
failed to
comply with the rules of court in various respects.
The applicant’s notice was served on the respondent at the
offices
of Abrahams & Gross, his attorneys of record.
Insofar as the basis for the application currently under
consideration
is concerned, the particulars of irregularity asserted
by the applicant were stated as follows in his notice to the
applicant to
cure the defects (underlining in the original):
2.
The power of attorney
annexed to the Appellant’s notice in terms of Rule 49(6)(a) is
signed by a person named “
Teodoro
Nguema Obiang” whereas the Appellant is named and cited as
“
Teodorin
Nguema Obiang
”.
3.
In terms of the
Appellant’s notice in terms of Rule 49(6)(a) the Appellant is
ordinarily resident in Malabo in the Republic
of Equatorial Guinea.
4.
The power of attorney
(referred to above) does not state where it was signed.
4.1. If
the power of was signed
outside the Republic of South Africa
the
power of attorney is irregular in that it does not comply with the
provisions of Rule 63(2)(a) or (b) of (
sic
) (c),
alternatively
4.2. If
the power of attorney was signed within the Republic of South Africa
it
is irregular within the meaning of Rule 7(4).
The applicant afforded the respondent a period of 10 days to remedy
the alleged non-compliance with the rules. The respondent
did
not avail of the opportunity to file a power of attorney that had
been authenticated in the manner provided in rule 63(2).
[9]
The applicant has not persisted in the
papers in the application before us with the complaint based on the
discrepancy between the
name by which the respondent has been cited
in the court papers (Teodorin) and that given on the power of
attorney (Teodoro), although
his counsel raised it in oral argument.
The decision not to pursue it on the papers may well be because a
basic Google search
in regard to the identity of the vice president
of Equatorial Guinea references numerous webpages on a wide variety
of sites that
state that the vice president is Teodoro (commonly
called Teodorin) Nguema Obiang. Indeed, as pointed out by the
respondent’s
counsel at the hearing, the learned judge at first
instance referred to the respondent’s full name in the judgment
and gave
his first name as ‘Teodoro’. It was the
applicant who cited the respondent by what it would seem is his
nickname,
Teodorin, in the litigious proceedings instituted in this
country.
[10]
The first basis of the applicant’s
application for an order striking out the appeal is that the appeal
has lapsed by reason
of the application for set down in terms of rule
49(6) not having been supported by a power of attorney authenticated
in the manner
provided in terms of rule 63(2).
[2]
It is the absence of authentication in terms of rule 63(2) that is
alleged by the applicant to result in the power of attorney
that was
filed by the respondent’s attorneys not being ‘a lawful
Power of Attorney’. In my view, there
is, for a number of
reasons, no merit in the contention.
[11]
Firstly, it seems to me to be illogical to
suggest that an appeal has lapsed when the responsible officer of
court has accepted
a timeously lodged application for it to be set
down and has allocated a date for it to be heard. Those are
factual considerations
that cannot be ignored or wished away as if
they had not happened. Close regard to the wording of rule
49(6)(a), which provides:
Within
60 days after delivery of a notice of appeal, an appellant shall make
written application to the registrar of the division
where the appeal
is to be heard for a date for the hearing of such appeal and shall at
the same time furnish him with his full
residential address and the
name and address of every other party to the appeal and if the
appellant fails to do so a respondent
may within 10 days after the
expiry of the said period of 60 days, as in the case of the
appellant, apply for the set down of the
appeal or cross-appeal which
he may have noted. If no such application is made by either party the
appeal and cross-appeal shall
be deemed to have lapsed: Provided that
a respondent shall have the right to apply for an order for his
wasted costs.
shows that the application for the set down of the appeal has to be
directed to
the registrar
. There is no requirement that
the application must be ‘delivered’ within the meaning of
that word as defined
in rule 1 (i.e. filed and served); although I
accept that in practice, and for good reason, it ordinarily will be.
The power
of attorney that must accompany the application if rule 7
is of application (as it was in the current matter) has only to be
‘filed’
– not delivered.
[12]
In my view, in the given circumstances it
was for
the registrar
,
not the applicant, to be satisfied as to the authenticity of the
power of attorney when deciding whether to accept or reject an
application for the set down of the appeal. And in that regard
the registrar would not have been constrained by the provisions
of
rule 63(2); she could exercise a judgement as provided for in terms
of rule 63(4) in deciding whether to be satisfied as to
the
authenticity of the document.
[3]
It matters not for the purpose of this discussion whether the
registrar is properly to be regarded as a manifestation of
a ‘court
of law’ or a ‘public office’ within the meaning of
rule 63(4).
[13]
The registrar’s actions in accepting
and giving effect to the application for the appeal to be set down
for hearing suggest
that she must have been satisfied as to the
authenticity of the power of attorney. There is no attack in
these proceedings
on the legality of the registrar’s apparent
exercise of judgement in accepting the power of attorney. The
allegation
that the appeal had lapsed, and accordingly should be
struck out, has been advanced solely on the basis that the power of
attorney
was not authenticated in the manner provided in rule 63(2).
For the reason just explained, that was to focus too narrowly
on the
specific subrule and to overlook the import of the rule read as a
whole, as it should be. In my view, the application
could not
get out of the starting blocks if it did not make out a basis to
impugn the registrar’s decision, evidently in
terms of rule
63(4), to accept the power of attorney.
[14]
The second reason for rejecting the
applicant’s allegation that the appeal has lapsed is closely
related to the first.
The applicant’s approach has been
to imply that authentication of the power of attorney in terms of
rule 63(2) was a peremptory
requirement. The provisions of rule
63(4), referred to earlier, make it plain that it is not. See
also Schmidt et al,
Law of Evidence
(LexisNexis, looseleaf edition SI-3) at 11-10, where - citing
Kaplan
v Kaplan
1936 WLD 51
,
Ex
parte Melcer
1948 4 SA 395 (W),
[4]
Stift v Stift
1952 4 SA 215 (O),
[5]
Friend v Friend
1962 4 SA 115 (E),
[6]
Chopra v Sparks Cinemas (Pty) Ltd
1973 2 SA 325 (D),
[7]
Mountain View Hotel (Pty) Ltd v Rossouw
1985 2 SA 73
(NC), and
Maschinen
Frommer GmbH & Co KG v Trisave Engineering & Machinery
Supplies (Pty) Ltd
2003 6 SA 69 (C)
[8]
- the observation is made that the provisions of rule 63(2) are
‘purely regulatory, not peremptory’. And a party
cannot purport to require an opposing litigant to have its power of
attorney authenticated in terms of sub-rule 63(2), merely by
querying
its authenticity. The opposing litigant is entitled, by virtue
of the incidence of rule 63(4), to have the authenticity
of the power
of attorney accepted if the surrounding circumstances do not support
the cogency of any challenge to it. That
is the approach that
the respondent has chosen to take in this matter.
[15]
The third and fourth reasons for rejecting
the applicant’s attack on the power of attorney are probably
the most pertinent,
for they go to the substance, rather than the
form, of the matter, which is whether, as a matter of probability,
the power of attorney
was, as a matter of fact, actually executed by
the respondent. After all, the evident purpose of the
requirement in rule
49(6) that there should be a power of attorney is
to prevent any person in whose name the appeal is being prosecuted by
an attorney
from thereafter denying that it was prosecuted with his
authority and repudiating the result; cf.
Estate
Matthews v. Ells
,
1955 (4) SA 457
(C)
at 459G,
United Dominions Corp (SA) Ltd
v Greylings’ Transport
1957 (1)
SA 609 (T)
[9]
at 614D,
Hills v Taxing Master
1975 (1) SA 856 (D)
[10]
at 859A-C,
Viljoen v Van der Walt
1977 (4) SA 65
(T) at 66B,
Carlkim (Pty)
Ltd and Others v Shaffer and Others
1986 (3) SA 619 (N)
[11]
at 621E-F and
Marais v City of Cape Town
1997 (3) SA 1097
(C) at 1099E. That purpose would be shown to
have been served were the court in these proceedings to be satisfied
on a balance
of probability that the signature on the document was
indeed that of the litigant, i.e. authentic. As already
mentioned,
if the court is satisfied by circumstantial evidence that
the signature is probably authentic, the need for its extracurial
authentication
in the manner allowed by rule 63(2) does not arise.
[16]
According to the unchallenged evidence of
the respondent’s attorney, the power of attorney in issue was
obtained in February
2018 after the applicant had objected to a
previous power of attorney ostensibly signed by the respondent in
November 2017.
The basis for the objection was that the
previous power of attorney did not indicate the place of its
execution and the date in
November on which it had been signed. The
previous power of attorney had been furnished in response to a demand
by the applicant,
in terms of rule 7(1),
[12]
when Abrahams & Gross, the firm of attorneys currently on record
for the respondent, were substituted as attorneys of record
for the
respondent for the purposes of prosecuting the appeal proceedings.
Abrahams & Gross replaced the attorneys who
had represented the
respondent in opposing the attachment application at first instance.
[17]
It has been held, rightly so in my
respectful view, that the production of a power of attorney is
ordinarily sufficient to answer
a challenge in terms of rule 7(1) to
an attorney’s authority to act; see
South
African Allied Workers’ Union v De Klerk NO and Others
1990
(3) SA 425
(E) at 436F-437B and
Gainsford
and Others NNO v HIAB AB
2000 (3) SA
635
(W) at 640D-F. Implicit in such finding is that it behoves
a party that alleges that the proffered power of attorney does
not
meet the challenge to timeously make its position clear. A
failure to do so gives the impression that representation
of
authority constituted by the power of attorney has been accepted.
Challenging the attorney’s represented authority
only much
later in the litigious process would be inimical to the efficient
administration of justice - at the furtherance of which
the rules in
general are directed. Challenges to the authority of an
attorney to represent a litigant, if they are to be
raised at all,
should be raised promptly at the earliest opportunity, and once
raised, taken to a determination without delay.
Indeed, that,
no doubt, is why there is a 10-day time limit in terms of rule 7(1).
[18]
The applicant appeared to have been
satisfied by the power of attorney when it was presented in February
2018 because he did not
thereafter challenge the attorneys’
authority to represent the respondent in the application for leave to
appeal before the
first instance judge or in the subsequent
application for leave from the Supreme Court of Appeal. And he
has also not done
so, as far as we have been made aware, in respect
of the delivery by the self-same attorneys of the respondent’s
plea in
the related damages action pending between the parties.
[19]
Having, in the circumstances just
described, given the impression that he had accepted that the
respondent’s attorneys of
record were duly authorised by the
respondent to represent him in pursuing an appeal against the
judgment at first instance, I
consider that it is no longer open to
the applicant, without showing good cause, now to challenge the
authenticity of the power
of attorney on purely formal grounds as he
has done in the application before us. This follows as a matter
of logic, for
if the genuineness of the power of attorney were
accepted for the purposes of the applications for leave to appeal,
why, in the
absence of any reason being advanced by the applicant for
only subsequently calling it into question, should its authenticity
be
doubted for the purpose of the appeal itself? It also
follows, in my judgment, by reason of the effect of rule 7(1), the
text of which has been quoted earlier in note 12.
[20]
The effect of not having pursued a
challenge to the power of attorney produced in response to its notice
in terms of rule 7(1) before
further steps in the litigation were
taken by the respondent’s attorneys under its apparent
authority is that, according
to the tenor of the subrule, the
applicant could thereafter only do so with the leave of the court on
good cause shown. He
has not sought the court’s leave to
challenge the power of attorney at this stage and he has also not
shown good cause to
do so. Indeed, the only basis for his
belated complaint appears to be that the power of attorney lacks the
adornment of beeswax
and ribbons that it would have had had it been
authenticated with an official’s seal in the manner provided in
rule 63(2).
We have already pointed out that any conception
that it had to be was misguided.
[21]
Mr
Joubert
sought in argument to suggest that the applicant had been entitled to
look critically and afresh at the power of attorney when
application
was made for the set down of the appeal because the provision of a
power of attorney was expressly required at that
stage in terms of
rule 7(2). The argument does not bear scrutiny.
Accepting it would require reading rule 7(2)
completely disjunctively
from rule 7(1), which, if regard is had to the purpose of rule 7, is
not justified. Ordinarily,
there would have been no obligation
on the respondent to furnish a power of attorney for the purpose of
prosecuting his applications
for leave to appeal and noting the
appeal. He was required to furnish one in early 2018 only
because the applicant demanded
it in terms of rule 7(1). Having
given a power of attorney then because the applicant demanded it, the
authorisation was
good according to its tenor, which was for the
remainder of the litigious process in which the respondent was
engaged at the instance
of the applicant. The respondent was
therefore not required to furnish fresh authorisation to his
appointed attorneys when
application was made for the set down of the
appeal. In the circumstances the power of attorney that had
been given in February
2018 was good for use for the purpose of
satisfying the requirement of rule 49(6) later in the litigation.
[22]
Having chosen to accept the power of
attorney without objection, when it was proffered in terms of rule
7(1), it was not open to
applicant to challenge it later in the
process, except perhaps on the basis of knowledge that it could not
reasonably have been
expected to have or been able to acquire when
the document was provided. Any other approach would be to allow
rule 7 to be
used to disrupt the efficient conduct of the
litigation. Rule 7 is not intended to permit successive
challenges to the authority
of attorneys whose warrant to act in the
matter has already been vouched by a power of attorney to which no
other party has raised
timeous objection.
[23]
This is the third reason why the first
basis for the application cannot be sustained.
[24]
The fourth reason for rejecting the first
basis for the application is that the evidence shows that, as a
matter probability, the
respondent did execute the power of
attorney. There has been no suggestion that it was not the
respondent who opposed the
application for the attachment of his
immovable properties. The applicant has himself maintained in
the papers before us
that the respondent will do anything to delay
the determination of the applicant’s action against him and
will use his allegedly
relatively limitless means to ‘out-litigate’
the applicant. The applicant’s evidence in this regard
is,
if anything, confirmatory of the inherent probability that the
person prosecuting the appeal is the respondent. After all,
the
action instituted by the applicant cannot be heard until the question
of the effectiveness of the attachment of the respondent’s
property has been finally determined.
[25]
There is also the undisputed evidence of
the respondent’s attorney that he travelled to Equatorial
Guinea in March 2018 to
take instructions directly from the
respondent. If the respondent was giving the attorney from
Abrahams & Gross instructions,
why should anyone other than him
have signed the power of attorney previously sent to him by the
attorney? If he had not
authorised the attorney to represent
him, why should he give the attorney instructions in relation to the
matter and why should
the attorney travel all that way to see him?
It is the inherent nature of these incidences of the probabilities
that inspired
remarks such as those made in comparable circumstances
by Flemming DJP in
Eskom v Soweto
City Council
1992 (2) SA 703
(W) at
p. 705 that ‘
the risk is
minimal that an attorney will act for a person without authority to
do so
’, and by Brand JA in
Unlawful Occupiers of the School Site v
City of Johannesburg
2005 (4) SA 199
(SCA)
[13]
at para. 16
that ‘
there
is rarely any motivation for deliberately launching an unauthorised
application
’.
[26]
Furthermore, as pointed out by the
respondent’s attorney, the signature on the power of attorney
that purports to be that
of the respondent is very similar to other
examples of the respondent’s signature in the papers, the
authenticity of which
has not been challenged. I agree with the
respondent’s attorney that the signature on the power of
attorney has every
appearance of being that of the respondent.
The applicant’s counsel contended, however, that the
respondent’s
attorney’s evidence that the signature on
the power of attorney corresponded with what he knew to be the
respondent’s
(undisputed) signature on other documents was
inadmissible because the attorney was not a handwriting expert.
This approach
is not supported by the jurisprudence.
[27]
For example, in
Ex
parte Holmes
supra, Selke J
accepted the evidence of the brother of the person who had executed a
power of attorney in the United States
identifying the person’s
signature, and in
In Re Estate Innes
1943 CPD 257
, Sutton J accepted the evidence of the tutor of a
person who had executed a power of attorney in Addis Ababa,
Abyssinia, as
to the genuineness of the signature. In
Friend
supra, Munnik J was satisfied upon his own comparison on the
return day of a rule
nisi
in divorce proceedings of the signature on the affidavit of
non-return by the defendant deposed to in Bulawayo, Southern
Rhodesia,
with the signature on the defendant’s power of
attorney,
[14]
presumably executed in South Africa, that the former had indeed been
signed by the defendant. In none of these matters were
the
court’s findings inhibited by the absence of opinion evidence
by a handwriting expert. Compare also the remark
of Theron AJ
(as he then was) in
United Dominions
Corp supra
, at p. 613, that it did
‘not require the assistance of a handwriting expert to compare
the signatures [on an incomplete
power of attorney] with the
signatures placed on [a subsequently completed power of attorney]’.
[28]
Handwriting comparison involves a judicial
consideration of real evidence, and there is no rule that requires a
court to have regard
to expert evidence in making a determination on
such evidence; although there will be situations, for example where
an alleged
forgery is in issue, in which a court will be hesitant to
make a decision without the assistance of expert evidence;
cf. Schmidt
& Rademeyer,
Bewysreg
(4th ed) at pp. 329-330. In my judgment this case is not
one of such situations. There is no indication in the
evidence
that the signature on the power of attorney is a forgery, nor that
anyone would in the circumstances have reason to forge
it.
[29]
It is relevant, I think, in deciding the
court’s preparedness to make a determination on the basis of
handwriting comparison
without the assistance of expert evidence, to
have regard to the fact that the matter under consideration is of a
procedural, rather
than substantive nature such as that in issue in
CRC Engineering (Pty) Ltd v JC Dunbar &
Sons (Pty) Ltd
1977 (1) SA 710
(W) on
which Mr
Joubert
relied
in argument. It is a determination whether the court should
allow the respondent’s case to be prosecuted on appeal
by the
attorneys who are on record as acting for him. And it falls to
be made without any regard to the merit, or lack thereof,
of the
appeal. It is not the sort of matter in which a court should,
in principle, be unduly fainthearted about acting on
its own
comparison of sample signatures without the assistance of expert
evidence.
Failure to put up sufficient (or any) security for the cost of the
appeal before filing the record
[30]
Turning now to the second basis for the
application, which, it will be recalled, concerned the respondent’s
failure to put
up security for the applicant’s costs in the
appeal.
[31]
Rule 49(13) provides:
(a)
Unless the respondent waives his or her right to security or the
court in granting leave to appeal or subsequently on application to
it, has released the appellant wholly or partially from that
obligation, the appellant shall, before lodging copies of the record
on appeal with the registrar, enter into good and sufficient
security
for the respondent's costs of appeal.
(b)
In the event of failure by the parties to agree on the amount of
security, the registrar shall fix the amount and the appellant shall
enter into security in the amount so fixed or such percentage
thereof
as the court has determined, as the case may be.
[32]
The respondent, qua appellant, has not
provided security for the applicant’s costs in the appeal.
The applicant suggested
that security should be given in the sum of
R750 000. The respondent does not agree that that is an
appropriate sum,
and has requested the taxing master (whom it would
seem is the designated official in the registrar’s office for
fixing security
if it cannot be agreed between the parties) to fix
the sum of security to be provided. The taxing master has
apparently advised
that he will fix the sum closer to the date of the
hearing of the appeal. There is nothing in the evidence to
suggest that
the respondent will not put up security in the amount to
be fixed by the designated member of staff in the registrar’s
office.
If he does not, that can be dealt with as a preliminary
issue when the appeal comes up for hearing.
[33]
Rule 49 does not provide that should the
appellant fail to furnish security within the period stipulated in
the rule the appeal
shall lapse. And any implication to such
effect would in any event probably be unconstitutional; cf.
Shepherd
v O’Neill
2000 (2) SA 1066
(N).
[34]
It was misdirected of the taxing master, if
he has been correctly reported, to postpone the fixing of security
until closer to the
date of the hearing. It is clear that, in
terms of the rules, security should be provided when the record is
filed; and if
that cannot be done because of a disagreement between
the parties on the amount of the security to be provided, the amount
should
be fixed to enable security to be put up as closely as
reasonably possible to the time provided in the rules. The
appropriate
course for the applicant to have taken in the described
circumstances was to have approached the taxing master or the
registrar
and pressed for an early determination of the amount of
security to be provided. In the unlikely event of the
registrar,
notwithstanding such an approach, unreasonably failing to
discharge her duty in terms of rule 49(13)(b), the applicant
would
have been entitled to approach the court for an order directing
the registrar to discharge the function provided in terms of the
subrule. Having not taken the indicated steps, it was not
appropriate in the given circumstances for the applicant to apply
instead for the appeal to be struck out.
[35]
The second basis for the application can
accordingly also not be sustained.
Order
[36]
There is no reason why costs should not
follow the result. I do, however, think that the respondent’s
engagement of
two counsel, while it might well be reasonable for the
purpose of the appeal, was luxurious for this application. The
following
order is made accordingly:
The application is dismissed with costs.
A.G. BINNS-WARD
Judge of the High Court
P.L GOLIATH
Deputy Judge President
C.M.
FORTUIN
Judge of the High Court
[1]
The application was set down for
hearing on 13 February 2019, but was postponed for hearing before a
full bench on 3 May
2019.
[2]
The requirement in terms of rule 7 that a notice of
appeal filed with the registrar in terms of rule 49 must be
accompanied by
a power of attorney is anomalous. There is no
apparent reason for it to be a generally applicable requirement.
A
power of attorney is not required in respect of an appeal to the
Supreme Court of Appeal or to the Constitutional Court, and since
1987 it has not been required of attorneys issuing out summonses or
entering appearances to defend on behalf of their clients
in the
High Court to file powers of attorney. I am inclined to agree
with the remark in Harms,
Civil Procedure in
the Superior Courts
(LexisNexis) at §B7.6
that ‘
The retention of these provisions
[rule 7(2) and (3)]
can
be questioned
’.
[3]
See paragraph [6]
above for the
text of rule 63(4).
[4]
Also reported at [1948] 1 All SA 583
(W).
[5]
Also reported at [1952] 4 All SA 185
(O)
[6]
Also reported at
[1962] 4 All SA 274
(E). In
Friend
,
Munnik J quoted, with approval, the following dicta of Selke J
in
Ex parte Holmes
& Co. (Pty) Ltd
1939
NPD 301
at pp. 307-308:
In this connection, Mr.
Macaulay
urged before
me, that as it would appear that the object of the Rules is merely
to ensure, so far as possible, the authenticity
of documents
executed outside the Union, provided their authenticity is
established by reliable evidence tendered in the usual
manner, that
object seems to be attained. He submitted that if, for example, a
person were on oath to satisfy this Court by oral
testimony that the
maker of such a power of attorney executed it in his presence,
handed it over to him there and then, and that
the document under
consideration had been in his possession continuously ever since its
execution, it would be taking altogether
too narrow and technical a
view of the situation if this Court were to reject the document, or
to decline to recognise it. merely
because it lacked the
authentication required by the Rules. I think there is much to be
said in favour of this line or argument,
for after all, the Rules
seem to me designed to be of practical assistance, and to apply them
in the way which Mr.
Macaulay
condemns would be to turn them
into something more in the nature of an impediment in many cases.
On the whole I am disposed to think that a document
authenticated in accordance with the Rules, furnishes, on its mere
production
from proper custody, prima facie proof of itself; and
that it should be in a condition to do this, is the true purpose and
effect
of such authentication. But I am inclined to doubt whether
sec. 24 of Act 27 of 1912, and the Rules made under it, take away or
diminish the right and duty of this Court, to consider, and give
effect to, other evidence, tendered in proper form, directed
to the
proof of a document executed in a foreign place, even though that
document be not authenticated as the Rules require;
and, further,
whether this Court, upon being thus satisfied as to the genuineness
of the document, cannot give effect to it provided,
of course, that
the document is, apart from authentication, executed with proper
formalities.
[7]
Also reported at [1973] 2 All SA 428
(D).
[8]
Also reported at [2003] 1 All
SA 453 (C).
[9]
Also reported at [1957] 1 All
SA 298 (T).
[10]
Also reported at [1975] 2 All SA 296
(D).
[11]
Also reported at [1986] 4 All SA 111
(N).
[12]
Rule 7(1) provides:
Subject
to the provisions of sub-rules (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 satisfies 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.
[13]
Also reported at
[2005] 2 All SA 108
(SCA) and on SAFLII as [2005] ZASCA 7.
[14]
Prior to an amendment of the
rules in 1987 a power of attorney was required in respect of the
institution of any action by an
attorney on behalf of a client or
the delivery of any notice by an attorney of its client’s
intention to defend any action.