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[2017] ZAGPPHC 431
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MacMillan v Janse van Rensburg (67920/2015) [2017] ZAGPPHC 431 (12 April 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER 67920/2015
DATE:
12/4/2017
In
the matter between:
WILLIAM
LAWSON
MACMILLAN
APPLICANT
and
HERMAN
JANZEN VAN
RENSBURG
RESPONDENT
JUDGMENT
SENYATSI
AJ
:
[1].
This is an application in terms of Rule 30A brought by the respondent
on the ground that the applicant has failed to comply
with a Rule
7(1) notice.
BACKROUND
[2].
The applicant instituted proceedings against the respondent for
payment of R2 917 709.10 ("the main application")
based on two acknowledgements of debts concluded in favour of the
applicant on 9 March 20.12 and 23 February 2015 respectively.
[3].
Upon service of notice of motion in the main application, the
respondent served a notice of intention to oppose the application
and
notice in terms of Rule 35(12) which called upon the applicant to
provide the original documents referred to in the founding
affidavit
of the applicant. These documents were annexures "BM1" and
"BM2" consisting of two acknowledgements
of debts. The
notice further sought proof of payments of the amounts allegedly
loaned and advanced, CIPC records relating
to
Sentio Building
(Pty)
Ltd, contract relating to the transfer of property, the
first and final liquidation and distribution account relating
to
the deceased wife of the applicant.
[4].
The applicant served his reply to the respondent's notice in terms of
Rule 35(12). In his reply, the applicant stated that
the original
acknowledgement of debt "BM1" was in the possession of his
attorneys of record and
was
available for inspection during office hours. The applicant
stated that he did not have the original acknowledgement of debt
"BM2"
as it was furnished to him by the respondent in
electronic form. He annexed proof of payment and
the
required CIPC search, a copy of the first and final
liquidation and distribution account of his deceased wife's estate
and responded
that payment was made by Steel Test (Pty)
Ltd of which he was the controlling shareholder and chief executive
officer.
The respondent was dissatisfied with the reply and served
the applicant with Rule 7 (1) notice which sought to challenge the
applicant's
authority to act on behalf of Steel Test (Proprietary)
Ltd (“Steel Test”).
[5].
From the evidence adduced on papers, it is not in dispute that
two
payments of R1
million each were made by Steel Test and it is not In dispute that
these payments were made on behalf of the
applicant who, at the time
was the principal shareholder and chief executive officer
of
Steel Test. The applicant
and the respondent knew each other quite well. The respondent acted
as the attorney of the applicant and
even handled the applicant's
wife's deceased estate.
[6].
The respondent
persisted with his
claim
that the applicant has failed to comply with notice in terms of Rule
7(1) and that as a consequence the main application should
be
dismissed with costs In terms of Rule 30A.
[7].
Mr. Bitter submitted on
behalf of the applicant that the application in terms of Rule 30A
should be dismissed with costs. He contended
that the Rule 7(1)
notice served by the respondent was used as a delaying tactic to
avoid the claim against him by the applicant
and that the respondent
was avoiding providing a defence on
merits.
[8].
It was submitted on behalf of the respondent by Mr. Thompson that the
application in terms of Rule 30A ought to be favourably
considered by
Court and that the main application should be dismissed with costs.
His basis Is that the applicant, in the main
application, has failed
to allege a cession of claims on a loan account in that payments were
made by third parties to the respondent.
He further argued that the
demand by the respondent in the main application that the applicant
should prove his authority to act
on behalf of third parties is
legitimate.
[9].
The issue for determination Is whether or not there Is merit to
the application In terms of Rule 30A.
THE
LEGAL PRINCIPLES
[10].
It is important to restate what Rule 7(1) provides which Is as
follows:
"(1)
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
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."
[11].
In my view, Rule 7(1) is only concerned, in the main, with the
mandate of
an
attorney to act In instituting or defending legal proceedings on
behalf of a party.
[1]
[12].
It is apposite that the purpose of filing a power of attorney is to
prevent a person whose name is cited in an application
or proceedings
from thereafter repudiating the process by
denying his authority for the issuing
of such a
process.
This principle has been acknowledged by courts in various
judgments.
[2]
[13].
Mr. Bitter contended that the applicant in the main application has
not purported
to
act on behalf of any third
party, and that as a consequence, the Insistence on Rule 7(1)
compliance is misplaced. The applicant
is acting on his own based on
the two acknowledgements of debt. I do concur with Mr. Bitter on this
point.
[14].
On proper perusal of the main application, it is evident that the
applicant is acting on his own based on the two acknowledgements
of
debts. No any other party has been cited in the main application
proceedings. it is therefore improper to contend that the applicant
does not have authority to act on behalf of a third party who is not
cited.
[15].
It has
been
submitted by Mr. Thompson that unless the applicant avers and proves
that the payments were made on his behalf by Steel Test,
his
authority can be challenged. As already indicated, I do not agree
with this contention. It has not been averred by the applicant
that
he acts on behalf of any third party. On the contrary, the applicant
in his papers paints a picture of how
the
payments
were made and more importantly, how the respondent even paid
some
of the money
to
the
applicant and this has not yet been challenged by
the
respondent except the attempt to use Rule 7(1) notice as a way of
frustrating the claim by the applicant.
The
authorities referred to by Adv.
Thompson
are not applicable in the present case. I was referred to in Saunders
Valve Co Ltd v lnsamcor (Ply) Ltd
[3]
.
It
is without doubt that
"It
is trite law that in motion proceedings the affidavits serve not only
to place
evidence
before court but also to define the issues before the parties. In
so
doing
the issues between the parties are identified. This is not only
for
the
benefit of the court but also, and primarily,
for
the
parties. The parties must know the
case
that
must be met and in respect of which they must adduce evidence in
affidavit".
[16].
I am of the view, the respondent has fully provided sufficient
information to the applicant in reply to Rule 35(12) to enable
the
applicant
to
provide the answering affidavit and
to raise whatever defence he may have at his disposal. As
a consequence,
I do not agree
that he has failed
to
reply
adequately
to the notice. Consequently, the application in terms of Rule 30A
cannot succeed.
ORDER
[17].
Accordingly, the following order is made:-
1.
The
application
for
dismissal
of
the
clai
m
b
y
the
applicant's
in terms of
Rule 30A dismissed with costs.
___________________
ML
SENTATSI
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing :
Date
of judgment :
Counsel
for the applicant :
Mr.
JJ
Bitter
Attorney
for the applicant : Darryl Ackerman
Attorneys
Counsel
for the respondent : Mr. CE Thompson
Attorney
for the respondent : Martin Van Vuuren Attorneys
[1]
See
SA Allied Workers' Union v De Klerk
1990 (3) SA 425.
[2]
See
Estate
Matthews v Els
1955 (4) SA 457
(C) at 459; United Dominion
Corporation (SA) Ltd v Greyllngs' Transport
1957
(1)
SA
609
(T)
at
614;
Vlljoen
v
Federated
Trust
Ltd
1971(1)
SA
750
(D)
at
752;
Eskom
v
SOweto
City
Councll
1992
(2)
SA
803(W)
at
705
E
-
F.
[3]
1985
(T) 146(T)
at
149
(T)