Dormehl and Others v FirstRand Bank Beperk (303/2007) [2007] ZAFSHC 38 (10 May 2007)

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[2007] ZAFSHC 38
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Dormehl and Others v FirstRand Bank Beperk (303/2007) [2007] ZAFSHC 38 (10 May 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 303/2007
In the case between:
JG DORMEHL
1
st
Applicant
ME
MAKLEIN
2
nd
Applicant
JG
VAN ES
3
rd
Applicant
and
FIRSTRAND BANK
BEPERK
Respondent
______________________________________________________
JUDGMENT:
MILTON, AJ
______________________________________________________
HEARD ON:
26 APRIL 2007
______________________________________________________
DELIVERED ON:
10 MAY 2007
______________________________________________________
[1]
INTRODUCTION
1.1 The first applicant,
an 84 year old male is neither a qualified attorney or advocate, has
brought an application for the rescission
of judgment by default
granted in case nr. 3089/06 by the registrar on the 15
th
of November 2006, together with the request for other relief. The
first applicant was not a party to case 3089/06 in which he seeks
rescission of judgment.
First applicant brings
the application on behalf of the second applicant since it is his
contention that he is the “partner”
of Mrs. Zwane, who was
appointed as executrix of the estate of the late Mr. Maklein, who
in turn appointed the first applicant
to assist her. This was done
with a signed power of attorney.
Third applicant was
second defendant in the judgement by default. Third applicant a
practicing attorney sited as the newly appointed
executor of the
estate of the late Mr. Maklein, being duly appointed by the Master
of the High Court on the 20
th
of October 2004, a copy
thereof being attached to the judgement by default.
The respondent,
Firstrand Bank, is the plaintiff in case 3089/06 wherein judgement
by default was granted for payment of the sum
of R737 758,30 plus
11% interest thereon from the 14
th
July 2007, being the
outstanding amount due and owing on the mortgage bond registered on
the property of the second applicant
and her late husband with whom
she was married in community of property. The parties were in
breach of payment in terms of the
bond, and further in breach by
allowing, a third party to occupy the property without the
respondent’s consent.
From the application
documents submitted by the first applicant it appears that during
the time that he supposedly represented
Mr. Zwane, the first
executrix, he failed to submit a claim against the deceased estate
for payment of the outstanding bond at
that time. The first
applicant relies on the fact that the claim of the respondent was
not submitted through the Master’s
office in that there was a
life policy which should have been called up by the respondents
which would have paid the outstanding
amount of due and owing by
the respondents since the respondent had it own insurance.
It is the first
applicant’s contention that the judgment was deceitfully
obtained, in the High Court since the respondent had
already issued
a summons in the Welkom Magistrate’s Court for payment of the
outstanding amount in terms of the mortgage bond.
No documents
were attached, save a notice it terms of Rule 55A whereby the
present first and second applicant request an amendment
to add a
counterclaim in their capacity as defendants. These pleadings are
not before the court and I do not deem it necessary
to elaborate
the details. The only reason for making mention thereof is since
the first applicant clearly does not understand
the civil procedure
rules and basis his argument for rescission of the High Court
judgment on case 3089/06 on the fact that there
is already a
judgment in the magistrate’s court. From the arguments put
forward by the respondent it transpired that no judgment
was
actually taken in the magistrate’s court and respondent’s
action (Firstrand Bank) were dismissed in terms of Rule 27(5)
of
the Magistrate’s Court Rules.
Attached to the
applicant’s application is a affidavit whereby the third
applicant confirms that the summons in case 3089/06
was not served
on him at his business address.
Neither the second or
the third applicant lodged confirmatory affidavits whereby it can
be deduced that they are in accordance
with the first applicant’s
application. Confusingly though, Messrs Stander, Venter and
Kleynhans lodge a notice of accession
on behalf of the second and
third applicants to establish an address for service and only later
they lodge a notice of acquiescence
to the court’s decision. A
letter was also handed up by the respondent’s council that was
addressed to respondent’s attorney
whereby they inform that the
first applicant has no
locus standi
to bring the application
on their behalf and they now distantiate themselves from the
proceedings.
[2]
RELIEF
SOUGHT
The first applicant
requests the court to give the following order that:
Johan Georg Dormehl,
first applicant be cited first defendant (seemingly in case
3089/06).
That judgment by
default dated 15 November 2006 in case 3089/06 be rescinded.
Judgment in favour of
first and second applicants be given in the Welkom Magistrate Court
be confirmed as the same cause of action
as case 3089/06.
That the respondent be
barred from bringing any further process in the present matter
(case 3089/06) until the Welkom judgment
is settled in full.
[3]
LEGAL POSITION
3.1 An applicant, for an
order setting aside (or varying) a judgment or order of court must
show, in order to establish
locus standi
, that he 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 an order granted.
See
UNITED WATCH &
DIAMOND CO (PTY) LTD AND OTHERS v DISA HOTELS LTD AND ANOTHER
1972 (4) SA 409
C on 415 D.
3.2 What constitutes a
direct and substantial interest has been referred to and adopted in a
number of decisions and is accepted that
what is required is a legal
interest in the subject matter of the action and which could be
prejudicially affected by the judgment
of the court.
See
HENRI VILJOEN
(PTY) LTD v AWERBUCH BROTHERS
1953 (2) SA 151
on 167 G – H
and
ABRAHAMSE & OTHERS v CAPE TOWN CITY COUNCIL
1953 (3) SA 855
(C).
3.3 In
Erasmus
Superior Court Practice
on B1 – 126A, the requirements for
locus standi in judicio
are expanded as follows:
3.3.1 the
plaintiff/applicant for relief must have an adequate interest in the
subject-matter of the litigation, which is not a technical
concept
but is usually described as a direct interest in the relief sought;
3.3.2 the interest must
not be too far removed;
3.3.3 the
interest must be actual, not abstract or academic;
3.3.4 the interest must
be a current interest and not a hypothetical one.
The duty to allege and
prove
locus standi in judicio
rests on the party instituting
proceedings.
3.4 Before the merits of
the application were dealt with, the point taken
in limine
by
the respondent’s attorney was that the
locus standi
of the
first applicant must first be considered. If the first applicant has
no
locus standi
the merits are then academic.
According to the first
applicant, Mrs. M. A. Zwane was appointed as executrix of the
estate of her late father, Mr. L. J. Maklein
on the 11
th
of August 2002.
However on the 14
th
of May 2002, 4 months prior to this, Mrs. Zwane signed a special
power of attorney appointing first applicant as her substitute
and
agent to perform all the duties of the executrix. The court fails
to fathom how this power could be bestowed on the first
applicant
when she herself had not yet been appointed as the executrix. No
power of attorney was attached to the application
and during
arguments on the court’s request, the first applicant could also
not produce such a document.
Although it is common
cause that Mr. Van Es was appointed as executor on the 2 September
2004 thereby replacing the previous executor
(Mrs. Zwane) who was
relieved of her duties, the first applicant is still insistent that
he is the “co-executor” and he is
rightfully entitled to bring
this application.
It is trite in our law
that any such authority must exist at the time an act is performed
on behalf of an undisclosed principal,
i.e. at the time of the
institution of the action. There can be no ratification. See
DURITY ALPHA (PTY) LTD v VAGG
[1991] ZASCA 20
;
1991 (2) SA 840
(A) AT
843 A and also
GRAVETT NO v VAN DER MERWE
1996 (1) SA
531
(D & CLD) on 537 H.
At the time of the
instituting the application for rescission of the judgment in case
3089/06, Mr. Dormehl was definitely not
an authorised agent, not
only because he cannot produce a written power of attorney but
since the previous executor had been
replaced by Mr. Van Es and he
had no such authority at the time of instituting the application.
Secondly, even if the
first applicant could prove
locus standi
with a power of
attorney, he would not succeed to bring an application in terms of
Rule 31(2)(b) since first applicant is not
a defendant in that
action and has therefore no substantial legal interest.
I agree with the
respondent’s council that it is not clear if the application is
brought in terms of Rule 42 in which case,
first applicant would
have to prove that judgment was granted erroneously and that he has
a direct interest and is prejudicially
affected thereby. There are
no such averments in his papers.
The only possibility
would then be that he brings this application in terms of the
common law in which case he must prove that:
3.12.1 The successful
litigant was a party to the fraud (First Rand Bank).
3.12.2 That
the evidence was in fact correct.
3.12.3 That
is was made fraudulently and with the intent to mislead.
3.12.4 It
diverged to such extent from the true facts, that if the true facts
had been placed before the court, the court would have
given a
judgment other than that which it was induced to do by the incorrect
evidence.
See
Erasmus:
“Superior Court Practice”
B1 – 307.
3.13 It is the first
applicant’s contention that the respondent was not entitled to
bring an application in the High Court since
they had already issued
summons in the magistrate’s court which was dismissed and this was
deceitful. He does not understand the
procedural turn the matter in
the magistrate’s court took and that the Rule 27(5) application
dismissed the applicant’s action
since the court date was not
requested within the prescribed time period. It is therefore clear
that the respondent’s matter was
dismissed on a technicality and
not on the merits and that the respondent thereafter proceeded to
issue summons in the High Court.
3.14.1 As the first
applicant further avers that the respondent served the summons on the
address of the property this being the address
of the chosen domicile
address, which is incorrect as he argued, since Mr. Van Es, the third
respondent, has an office whereupon
this should have been served.
3.14.2 On the supposition
that first appellant could succeed in proving that the judgment was
incorrectly granted in the case 3089/06,
(which is doubtful) the
first applicant must first convince this court that he has
locus
standi
to bring such an application. If he fails on the first
hurdle, the merits become irrelevant.
[4]
FINDING
4.1 I therefore find that
the first applicant had no
locus standi
to bring an
application in his capacity as first applicant for the following
reasons:
4.1.1 He was not a party
to the pleadings on case 3089/06 where judgment by default was taken.
4.1.2 He could not
produce a valid power of attorney.
4.1.3 Even
if he could produce a valid power of attorney, it is clear that the
erstwhile while executor whom he professes to represent,
had in the
meantime been replaced.
4.1.4 In
terms of the common law the first applicant bears the onus to prove
that he has a legal interest, an interest based on the
issues of law.
4.2 Finally regarding the
representation of the second and third applicant, by the first
appellant it is clear that the first appellant,
who is neither a
qualified attorney nor advocate and cannot therefore, represent
another person in a court of law, appeared and signed
court
proceedings in direct conflict to the Right of Appearance Act, nr. 62
of 1995 and the Supreme Court Act nr. 59 of 1959.
4.3 Secondly, no
confirmatory affidavits were attached to his application whereby the
second and third applicants associate themselves
as being part of the
application.
4.4 A letter was handed
into court whereby the respondent’s attorneys were informed by the
second and third applicant’s attorneys
that they distantiate
themselves from this application for obvious reasons.
5. The following order is
therefore made:
The application is
dismissed.
First applicant to pay
the costs.
______________
D. MILTON, AJ
On
behalf of the 1
st
Applicant: J. G. Dormehl
BLOEMFONTEIN
On
behalf of the 2
nd
and 3
rd
Applicants:
H. J. Stander
Instructed by:
Stander,
Venter & Kleynhans
BLOEMFONTEIN
On
behalf of the Respondents: J. E. Smit
Instructed by:
Hill, McHardy & Herbst
BLOEMFONTEIN
/em