About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2021
>>
[2021] ZASCA 168
|
|
Masako v Masako and Another (724/2020) [2021] ZASCA 168; 2022 (3) SA 403 (SCA) (3 December 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 724/2020
In the matter
between:
PAULINE MASIBE
MASAKO APPELLANT
and
MOLEFE STEPHENS
MASAKO FIRST
RESPONDENT
ELSEPCH NOMAHLUBI
BELINDA
KHWINANA SECOND
RESPONDENT
Neutral
citation:
Masako v Masako
& Another
(Case no 724/20)
[2021] ZASCA 168
(3 December 2021)
Coram:
DAMBUZA,
SCHIPPERS and MABINDLA-BOQWANA JJA
Heard:
Matter
disposed without oral hearing in terms of
s 19
(a)
of the
Superior Courts Act 10 of 2013
.
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on
the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 10h00 on 3 December
2021.
Summary:
Locus standi – whether an
attorney requires authority from client to depose to an affidavit –
distinction between right
to institute proceedings, authority to act
on behalf of client and the basis for deposing to an affidavit –
attorney’s
founding affidavit based on facts known to her –
inquiry into attorney’s legal standing irrelevant –
appeal upheld.
ORDER
On
appeal from:
North West Division of the
High Court, Mahikeng (Nobanda AJ and Djaje J concurring, sitting
as a court of appeal): judgment
r
eported as
sub nom Masako v Masako and Another; In
re: Masako v Masako
2021 (6) SA 197
(NWM)
1
The
appeal is upheld.
2
The
order of the North West Division of the High Court, Mahikeng is set
aside and replaced with the following order:
‘
1
The appeal is upheld with costs,
and
the ruling of the Regional Court, Garankuwa
dated
3 October 2018
is set aside and
replaced with the following:
“
The
point in limine is dismissed with costs.”
2
The matter is remitted to the Regional Court, Garankuwa for the
determination of the
merits of the rescission application.’
JUDGMENT
Mabindla-Boqwana
JA
(Dambuza and Schippers JJA
concurring):
[1]
This
appeal concerns a narrow question of whether an attorney who deposed
to an affidavit in support of a rescission application
was required
to obtain authorisation from her client to do so. The Regional Court
in Garankuwa (regional court), whose decision
was confirmed by the
North West Division of the High Court, Mahikeng (high court), held
that she did. The appeal is with the leave
of this Court and is
unopposed. It was
determined without
hearing oral argument, in terms of
s 19
(a)
of the
Superior Courts Act 10 of
2013
, by agreement with the parties.
[2]
The
appellant and the first respondent were previously married, and their
marriage was dissolved by a decree of divorce incorporating
a
settlement agreement on 13 February 2013. One of the terms of the
agreement was that each party would ‘retain those assets
presently in their respective possession and/or under their
respective control in settlement of their respective claims in the
joint estate.’ According to the appellant, both parties
retained immovable properties registered in their names. She retained
the immovable property described as Erf 477, Winterveld JR,
North West, which was registered in her name and was under her
control and possession.
[3]
Despite
this agreement, on 24 May 2016, the first respondent launched an
application in the regional court seeking an order, inter
alia,
‘[a]ppointing a Receiver and Liquidator of the assets of the
joint estate subsisting between the [first respondent]
and the
[appellant].’ The Liquidator would, among other things, be
vested with the right to ‘determine the value of
the assets of
the communal estate as at date of Divorce and ascertain which party
retained which of the assets when the [first
respondent] left
communal home and thereafter divide the assets on [an] equal basis
between the parties taking into consideration
all outstanding debts
as at date of Divorce.’
[4]
The
appellant appointed Ms Nkagiseng Moduka, an attorney, to act on her
behalf in opposing the application, and an answering affidavit
was
delivered. The application was set down for hearing on 17 April 2018.
That day an order was granted in favour of the first
respondent in
the absence of the appellant. This led to the appellant bringing an
application for the rescission of the order on
21 May 2018.
Ms Moduka deposed to the founding affidavit in support of the
application for rescission. She alleged that
an administrative error
in her office had led to the rescission application being incorrectly
diarised for 17 May 2018 instead
of 17 April 2018.
[5]
The
rescission application was opposed by the first respondent, who
raised a point in limine challenging Ms Moduka’s ‘locus
standi’ on the basis that, as the attorney for the appellant,
she was not the person affected by the judgment sought to be
rescinded. He contended that she did not have a ‘direct and
substantial interest in the main application’, which would
entitle her to bring the rescission application. In reply the
appellant filed a confirmatory affidavit in which she attested to
having instructed her attorney to represent her in all proceedings
brought by the first respondent in the matter.
[6]
The
regional court agreed with the first respondent and upheld the point
in limine. It found that Ms Moduka had not been authorised
to bring
the application by the appellant. It held that the appellant’s
confirmatory affidavit was:
‘
.
. . an attempt to usher in her authorisation through the back-door. .
. in that nothing prevented her giving her authorisation
earlier,
other than wait till a point is reached attacking the attorney’s
locus standi
.
The fact that the
attorney takes the position of the real applicant has the potential
of muddling the waters further. . . which
creates the impression that
she was the purchaser of Erf 477, which is factually not correct.
The end result is
that the point
in limine
succeeds on the basis of her lack of
standing.’
[7]
The
appellant appealed that ruling to the high court. The high court
dismissed the appeal on the same basis as the regional court.
It
found that Ms Moduka ‘lacked locus standi to bring the
application for rescission in the absence of authorisation by the
appellant’. Having considered
s 36(1)
of the
Magistrates’
Courts Act 32 of 1944
[1]
and
rule 49
[2]
of the Magistrates’
Court Rules, the high court concluded that an attorney and an
advocate are not ‘a party’
for the purposes of rule 49(1)
in that they do not have a ‘legal interest’ in a matter.
Theirs is an indirect, general
interest to advance their client’s
case and bring it to conclusion. It further held that:
‘
Section
36(1)
(a)
requires the applicant to have been ‘affected’ by such a
judgment. “Affected party” is defined by
Erasmus
as [
a person who] has an interest in the
subject matter of the judgment or order sufficiently direct and
substantial to entitle him
to intervene in the original application
upon which the judgment was given or granted. He must have a legal
interest in the subject
matter of the action which could be
prejudicial to the judgment of the Court.’
(Footnote
omitted)
[8]
In
my view, both the regional court and the high court appear to have
conflated (a) the legal standing of the party seeking rescission
of
judgment; (b) the basis for deposing to an affidavit and (c) the
authority to represent a party. I deal with these in turn.
[9]
As
regards the first issue, a party will have legal standing (locus
standi) if he or she has a direct and substantial interest in
the
subject-matter of the judgment sought to be rescinded.
[3]
The appellant, as the respondent in the main application, had opposed
the main application brought by the first respondent relating
to the
appointment of a Receiver and Liquidator of the assets in the joint
estate. She appointed Moduka Attorneys in opposing that
matter. Upon
learning of the default judgment granted against her, the appellant
instituted an application seeking rescission of
the default judgment.
She accordingly had the necessary standing as she was the party
affected by the judgment sought to be rescinded.
The inquiry into Ms
Moduka’s legal standing was thus irrelevant in the matter.
[10]
Turning
to the issue of authority to depose to an affidavit, the judgment of
this Court in
Ganes
and Another v Telecom Namibia Ltd
[4]
provides a complete answer to this question. It held that:
‘
.
. . it is irrelevant whether Hanke had been 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 which must be authorised. In the present case the
proceedings were instituted and prosecuted by a firm
of attorneys
purporting to act on behalf of the respondent. In an affidavit filed
together with the notice of motion a Mr Kurz
stated that he was a
director in the firm of attorneys acting on behalf of the respondent
and that such firm of attorneys was duly
appointed to represent the
respondent. That statement has not been challenged by the appellants.
It must, therefore, be accepted
that the institution of the
proceedings was duly authorised. In any event, Rule 7 provides a
procedure to be followed by a respondent
who wishes to challenge the
authority of an attorney who instituted motion proceedings on behalf
of an applicant. The appellants
did not avail themselves of the
procedure so provided. (See
Eskom v Soweto City Council
1992 (2) SA 703 (W) at 705C - J.)’
[11]
Ms
Moduka alleged that her reason for deposing to the founding affidavit
was that the facts that gave rise to the need for a rescission
application lay squarely within her knowledge as the attorney who was
dealing with the matter. It stands to reason that a deponent
to an
affidavit is a witness who states under oath facts that lie within
her personal knowledge. She swears or affirms to the truthfulness
of
such statements. She is no different from a witness who testifies
orally, on oath or affirmation, regarding events within her
knowledge. Thus, when Ms Moduka deposed to the founding affidavit,
she needed no authorisation from her client.
[12]
As
to the last issue, the appellant clearly indicated that she had given
Ms Moduka instructions to act on her behalf in all proceedings.
Ms
Moduka stated that she was the attorney who had been instructed by
the appellant to oppose the main application and had accordingly
been
involved in the matter from its inception. She went further in the
replying affidavit, and said that her mandate had never
been
questioned by the first respondent and that her instructions came
from ‘a person who had been affected by the order
that was
granted and [she] was not acting on the frolic of [her] own . . .’.
As already stated, she had attached a confirmatory
affidavit of the
appellant, who confirmed that she had instructed Ms Moduka to
institute the rescission application. These
allegations were not
challenged.
[13]
In
any event, in terms of rule 52(2)
(a)
[5]
of the Magistrates’ Court Rules, an attorney does not need to
allege that they are authorised to act for a party. A party
wishing
to challenge an attorney’s authority to represent a party may
do so in terms of the procedure outlined in that rule.
The first
respondent brought no such challenge. Accordingly, there was no
reason for the regional court and the high court to find
that Ms
Moduka lacked authority. For those reasons, the decision of the high
court falls to be set aside.
[14]
In
the result, the following order is made:
1
The
appeal is upheld.
2
The
order of the North West Division of the High Court, Mahikeng is set
aside and replaced with the following order:
‘
1 The
appeal is upheld with costs,
and the
ruling of the Regional Court, Garankuwa
dated
3 October 2018
is set aside and
replaced with the following:
“
The
point in limine is dismissed with costs.”
2 The
matter is remitted to the Regional Court, Garankuwa for the
determination of the
merits of the rescission application.’
N
P MABINDLA-BOQWANA
JUDGE OF APPEAL
Written
submissions
For
the appellant: A
J D’Oliveira
Instructed
by
:
Moduka
Attorneys, Pretoria
[1]
Section 36(1), inter alia provides: ‘The court may, upon
application by any person affected thereby, or, in cases falling
under paragraph
(c)
,
suo
motu
-
(a)
rescind or vary any judgment granted by it in the
absence of the person against whom that judgment was granted.’
[2]
Rule 49(1) states: ‘A party to proceedings in which a default
judgment has been given, or any person affected by such judgment,
may within 20 days after obtaining knowledge of the judgment serve
and file an application to court, on notice to all parties
to the
proceedings, for a rescission or variation of the judgment and the
court may, upon good cause shown, or if it is satisfied
that there
is good reason to do so, rescind or vary the default judgment on
such terms as it deems fit: Provided that the 20
days' period shall
not be applicable to a request for rescission or variation of
judgment brought in terms of subrule (5) or
(5A).’
[3]
De
Villiers and Others v Trustees for the Time Being of the GJN Trust
and Others
[2018] ZASCA 80
;
2019 (1) SA 120
(SCA) para 22.
[4]
Ganes
and Another v Telecom Namibia Ltd
2004
(3) SA 615
(SCA); (2004) 25 ILJ 995 (SCA);
[2004] 2 All SA 609
(SCA)
para 19.
[5]
Rule
52(2)
(a)
of
the Magistrates’ Court Rules provides: ‘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 the leave of the court
on good cause shown at any time before judgment.’
This is
equivalent to Rule 7(1) in the Uniform Rules of Court.