REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number : 025607/2023
DELETE WHI C HEVER IS N O T APPLIC ABLE
( l) REP OR T ABLE: N O
(2) O F INTERE ST TO O THE R JUD G ES: N O
(3) RE V ISED
(4) Date: 02 SEPTEMBE R 2025
SIG NA TU RE:- ~
In the matter between:
METAL INDUSTRIES PROVIDENT FUND
and
JOHFREE CC T/A POWER INDUSTRIES ENGINEERING
(in Liquidation)
App licant
First Respondent
FREDERICK SMITH RADEMEYER Second Respondent
___________________________________________________________________
JUDGMENT
NOBANDA AJ
Introduction
[1] The applicant is a Provident Fund, a pension fund in terms of section 4 of the
Pension Funds Act 22 of 2008 (the Act), established in terms of the Metal Engineering
Industries Bargaining Council (MEIBC), a bargaining council as defined by the Labour
Relations Act 66 of 1995 (the LRA). The applicant has appointed the Metal Industries
Benefit Funds Administrator (MIBFA) as its section 13B of the Act administrator.
[2] The applicant seeks an order against the second respondent in the following
terms:
“1 Directing the Second Respondent to provide th e Applicant with
the documents set out below within 30 calendar days of the date
of the Court Order:
1.1 Outstanding provident fund contribution schedules, in
respect of provident fund contributions for its employees
which is payable to the Applicant, as contemplated in
Section 13A(2) of the Act and Section 3.2 of the FSCA
Conduct Standard 1 of 2022 for the periods of: October
2011 to December 2012 and January 2020 to November
2022;
2 Within one calendar month of the Applicant having determined
the outstanding provident fund contributions, payable by the
Respondents based on the schedules, provided by the
Respondents in terms of paragraph 1 above, directing the
Respondents to pay:
2.1 all outstanding provident fund contributions, together with
prescribed interest thereon, to the Applicant.
3 Directing the Second Respondent to pay over the monies owing
to the Applicant, as determined based on contribution schedules
already submitted by the Respondents but not paid over, which
amount has accrued to R84 407.47 (Eight (sic) Four
Thousand, Four Hundred and Seven Rand and Forty Seven
Cents), which remains due, owing and payable to the Applicant.
4 Directing the Second Respondent Payment (sic) of the amount
outstanding, as determined based on estimated Late Payment
interest, which amount has accrued to R94 055.93 (Ninety Four
Thousand, Fifty Five Rand and Ninety Three Cents) which
remains due, owing and payable to the Applicant.
5 Alternatively to paragraph 1, 2, 3 and 4 above, granting the
Applicant leave to approach this Court on the same papers, as
supplemented, to seek the relief set out in 1, 2, 3 and 4 above
once the amounts payable by the Respondents have been
quantified based on the returns, schedules and fo rms provided
by the Respondents as per prayer 1, 2, 3 and 4 above.
6 Ordering the Second Respondent to pay the costs of this
application at a scale as between Attorney and Own Client...”
[3] No order is sought against the first respondent.
Background facts
[4] The first respondent is a close corporation and a participatory employer in the
applicant. As such, it was obliged to comply with the applicant’s registered rules as
well as the provisions of section 13A read with regulation 33 of the Act. The first
respondent is in voluntary liquidation. The second respondent was the sole member
of the first respondent.
[5] The applicant a vers that the first respondent failed to comply with the
applicant’s rules in making contributions and submitting contributions for its employees
to the applicant as envisaged in section 13A of the Act for the periods October 2011
to December 2012 and January 2020 to November 2022.
[6] The first respondent was finally liquidated in 2022. Section 13A(8)(b) of the Act
holds every member of a close corporation who controls or is regularly involved in the
management of the close cooperation ’s overall financial affairs personally liable for
any debts arising from the non -compliance of the close corporation with section 13A
read with regulation 33 of the Act, hence the claim against the second respondent.
[7] The second respondent raises several various points in limine, to wit:
[7.1] Lack of authority;
[7.2] Non joinder/Mis-joinder;
[7.3] Jurisdiction; and
[7.4] Prescription.
[8] I shall first deal with the issue of lack of authority as this will determine how to
proceed with the application further.
Lack of authority
[9] The second respondent is challenging the deponent to the applicant’s founding
affidavit, one Mr. Naidoo’s (Naidoo) authority to depose to this application on behalf of
the applicant but to Engineering Industries Pension Fund’s (EIPF) application.
Moreover, the second respondent denies that the facts deposed to by Naidoo fall
within his personal knowledge as stated since the applicant avers that MIBFA is its
section 13B administrators. As such, since in terms of inter alia , the provisions of
section 13B(5)(b), (c) and (d) of the Act, the administrator is required to administer the
fund in a responsible manner, keep proper records and employ adequate trained staff
to fulfill its obligations and supervise them, the records pertaining to contributions
received or outstanding are therefore in the possession of the admini strator and not
the fund where Naidoo is located.
[10] In its replying affidavit, the applicant admits that the attached resolution,
annexure ‘LN1’ in the founding affidavit was not for the applicant but EIPF’s. The
applicant explains that it was an oversight on its part and annexes what it purports to
be the correct resolution as annexure ‘RA1’.
[11] During argument, Counsel for the second respondent, Mr. Janse van Rensburg
contended that the resolution ‘R A1’ is still not authorising Naidoo to institute this
application on behalf of the applicant but another person, one O'Girf. In response, the
applicant’s Counsel Mr. Hewitt argued that it was not open for the second respondent
to raise this objection on affidavit but was required to do so in terms of rule 7(1) of the
Uniform Rules. Mr. Hewitt relies on the Supreme Court of Appeal decision in Unlawful
Occupiers, School Site v City of Johannesburg 1 (School site) where Brand JA,
after commenting on Fle mming DJP's dicta in Eskom2 that the remedy of the
respondent who wishes to challenge the authority of the person allegedly acting on
behalf of the purported applicant is provided in rule 7(1) of the uniform rules, concluded
that since that remedy is now available, a party wishing to chal lenge that authority
should not do as it was previously done , that is, directed at the adequacy of the
averments in the applicant’s papers by way an affidavit but utilise the provisions of rule
7(1).
Applicable law/legislation
[12] Rule 7(1) provides:
“Subject to the provisions of subrules (2) and (3) a power of attorney to
act need not be filed, but the authority of anyone acting on behalf of the
party may, within 10 days after it has come to the notice of a party that
1 Unlawful Occupiers, School Site v City of Johannesburg 2005 (4) SA 199 (SCA) at [14] – [16]
2 Eskom v Soweto City Council 1992 (2) SA 703 (W)
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.”
[13] Prior to the amendment of rule 7, rule 7 (1) merely stated that ‘a power of
attorney to act need not be filed.’ The authors Herbstein & Van Winsen3 submit that
the intention of the amendment was m erely to change the rule from one requiring an
attorney to file a power of attorney every time a summons is issued to one not requiring
this and substituting a procedure for challenging the authority of an attorney to act.
The application of the rule now includes both actions and applications . It is this
replacement of the word ‘attorney’ to ‘anyone’ that has caused much controversy and
confusion in our courts.
[14] It all began with the dicta by Flemming DJP in Eskom (supra) where the
applicant was challenging the authority of the deponent to the respondent’s (a juristic
person) interlocutory application. Flemming DJP held inter alia that:
“The care displayed in the past about proof of authority was rational. It was
inspired by the fear that a person may deny that he was party to litigation carried
on in his name. His signature to the process, or when that does not eventuate,
formal proof of authority would avoid undue risk to the opposite party, to the
administration of justice and sometimes even to his own attorney…
The developed view, adopted in Court Rule 7(1), is that the risk is adequately
managed on a different level. If the attorney is authorised to bring the
application on behalf of the applicant, indication necessari ly is that of the
applicant. There is no need that any other person, whether he be a witness or
3 Herbstein & Van Winsen: Civil Practice of the Superior Courts of South Africa vol 1 6ed
someone who becomes involved especially in the context of authority, should
additionally be authorised. It is therefore sufficient to know whether or not the
attorney acts with authority…
If the applicant had qualms about whether the “interlocutory application ” is
authorised by the respondent, that authority had to be challenged on the level
of whether [the attorney] had empowerment. Apart from more informal requests
or enquiries, applicant’s remedy was to use Court Rule 7(1). It was not to hand
up heads of argument, apply textual analysis and make submissions about the
adequacy of the words used by a deponent about his own authority.”4
[15] This last part of Flem ming DJP’s dicta was referred to with approval by the
Supreme Court of Appeal in Ganes5 where Streicher JA commented thus “… 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.”
[16] Flemming DJP’s dicta was reiterated by the Supreme Court of Appeal in School
Site (supra)6 where Brand JA stated the following:
“[14]…The import of the judgment in Eskom is that the remedy of a respondent
who wishes to challenge the authority of the person allegedly acting on behalf
of the purported applicant is provided for in Rule 7(1) of the Uniform Rules of
Court.
…
[16]… as Flemming DJP has said, now that the new rule 7(1) remedy is
available, a party who wishes to raise the issue of authority should not adopt
4 At 705-706C
5 Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at 624J-625A
6 At [14]
the procedure followed by the appellants in this matter, i.e by way of argument
based on no more than a textual analysis of the words used by a deponent in
an attempt to prove his or her own authority.”
[17] Relying on this dictum by Brand JA, Gorven J, writing for t he full court in
Umvoti7 concluded that the only way to challenge the authority of the deponent
purporting to represent a juristic person in the institution and/or defending the legal
proceedings is by using rule 7(1) and not by affidavits. To that end, Gorven J held as
follow:
“I am therefore of the view that the position has changed, since Watermeyer J
set out the approach in the Merino Ko-operasie Bkp case. The position now is
that, absent a specific challenge by way of rule 7(1), “the mere signature of the
notice of motion by an attorney and the fact that the proceedings purport to be
brought in the name of the applicant” is sufficient. It is further my view that the
application papers are not the correct context in which to determine whether an
applicant which is an artificial person has authorised the initiation of application
proceedings. Rule 7(1) must be used.”
[18] With the greatest of respect, I disagree with Umvoti in this regard in that it treats
the different types of authorities as if they are the one and the same thing. As explained
by the learned authors Herbstein & Van Weinsen (supra)8 there are three different
types of authority namely:
[18.1] The authority of an attorney /legal practitioner to institute an action on
behalf of a client;
7 ANC Umvoti Council Caucus and Others v Umvoti Municipality 2010 (3) SA 31 (KZP) at [28]
8 At p6-7
[18.2] the authority of the person or persons who instruct the legal practitioner
to institute or defend proceedings on behalf of a juristic person; and
[18.3] The authority of a deponent to an affidavit to present evidence.
[19] The authority of the person or person s who instruct the legal practitioner to
institute or defend proceedings on behalf of a juristic person is different from the
authority of a deponent to an affidavit to present evidence on behalf of a juristic person
even though in some instan ces, these au thorities may overlap . The l atter cannot
exercise the authority of the former while the former can exercise the authority of the
latter, which is usually the case with juristic persons. I t is the former that is the most
essential when dealing with juristic persons . As explained by Streicher JA in Ganes
(supra), it is not necessary to authori se a person to depose to an affidavit in motion
proceedings. It is the institution of the proceedings and the prosecution thereof which
must be authorised.9
[20] Juristic persons are governed by different laws from the laws that govern a
natural person. A juristic or ‘artificial’ or ‘fictitious’ person cannot be a party to litigation
in the absence of an authorising resolution. The courts require proper evidence of the
existence of this authority in whatever form it takes. 10 It is a basic principle of our law
that a juristic or artificial or fictitious entity like the applicant cannot institute or defend
any legal proceedings without human assistance and it obviously cannot physically
appear in court. As such, it must be represented by a natural person.11
[21] Hence, w here a company or juristic person comme nces process by way of
motion proceedings, it should appear that the person bringing the application on behalf
of the juristic person is duly authorised by the juristic person to do so. As clarified by
Krigler JA in Louw (supra): ‘Two questions arise: firstly, who has authority to bring or
Krigler JA in Louw (supra): ‘Two questions arise: firstly, who has authority to bring or
9 At [19]
10 LAWSA 4(1) par 38; Mall (Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 (C) at 352
11 Louw v WP Ko-operasie Bpk 1991 (3) SA 593 (A) at 603
defend proceedings and, secondly, who may appear in court on the company’s behalf’.
As pointed out by the authors Hebstein and Van Wiensen (supra) these two aspects
of authority are separate issues and must be dealt with separately.12 Watermeyer J in
Mall (Cape) (supra), explains this distinction as follows:
‘There is a considerable amount of authority for the proposition that , where a
company commences proceedings by way of petition, it must appear that the
person who makes the petition on behalf of the company is duly authorised by
the company to do so ( see for example L urie Brothers Ltd v Arcache, 1927
NPD 139, and the other cases mentioned in Herbstein & Van Winsen , Civil
Practice of the Superior Court in South Africa at pp. 37, 38). This seems to me
to be a salutary rule and one which should also apply to notice of motion
proceedings where the applicant is an artificial person. In such cases some
evidence should be placed before th e Court to show that the applicant has
resolved to institute the proceedings and that the proceedings are instituted at
its instance. Unlike the case of an individual, the mere signature of the notice
of motion by an attorney and the fact that the proceedi ngs purported to be
brought in the name of the applicant are in my view insufficient. The best
evidence that the proceedings have been properly authorised would be
provided by an affidavit made by an official of the company annexing a copy of
the resolution, but I do not consider that the form of proof is necessary in every
case. Each case must be considered on its own merits and the Court must
decide whether enough has been placed before it to warrant the conclusion that
it is the applicant [juristic person] which is litigating and not some unauthorised
person on its behalf.13 (emphasis provided)
[22] Although Mall (Cape) was decided long before the amendment to rule 7 , its
principles continue to apply . Authors Herbstein & Van W insen (supra) indicate that
principles continue to apply . Authors Herbstein & Van W insen (supra) indicate that
these principles were followed and applied in motion proceedings for almost 50 years
12 At p6-2
13 At 352
until School Site as indicated above.14 Prior to School Site, this dicta, amongst others,
was referred to with approval , even after the amendment, by the erstwhile Appellate
Division in Tattersall.15 It be ars to mention that School Site never mentioned or
referred to either one of these cases. By implication, it means the principles enunciated
in Mall (Cape) referred to with approval in Tattersall are still applicable.16
[23] In the light thereof, it seems to me that there are two schools of thought in one
of our highest Courts, the Supreme Court of Appeal. The one thought distinguishes
between the different types of authorities where a juristic entity is involved17 while the
other regards the authority to the legal practitioner as sufficient, the deponent
purporting to have been authorised to institute the proceedings on behalf of the juristic
person not requiring additional authority.18 Inevitably, the school of thought determines
the procedure to be adopted when there is a dispute about the authority of a person
purporting to be authorised to institute or defend the proceedings on behalf of a juristic
person. The former is n either restrictive nor prescriptive particularly since rule 7(1)
does not provide any specific procedure for its implementation. As such, it recognises
that the challenge can be raised in a variety of ways , that is, inter alia, by way of a
special plea, notice or by affidavit , depending on the circumstances19 while the latter
appears to restrict it to rule 7(1).20
[24] In the light thereof, it seems to me that the court has a discretion on whether or
not to entertain the challenge to the authority of a person purporting to be authorised
to institute or defend the proceedings on behalf of the juris tic entity raised in the
affidavit or insist on rule 7(1) process thereby refusing to entertain the challenge raised
14 At p6-3
15 Tattersall and Another v Nedcor Bank Ltd 1995 (3) SA 222 (SCA) at 228F-229A
14 At p6-3
15 Tattersall and Another v Nedcor Bank Ltd 1995 (3) SA 222 (SCA) at 228F-229A
16 Minister of Water and Sanitation v Clarkson Power (Pty) Ltd and Another 2024 (5) SA 280 (WCC) at
[49]-[50]
17 Tattersall (supra) approving Mall (Cape) (supra) at 351G-352A
18 Ganes (supra); School Site (supra) approving Eskom (supra)
19 Herbstein & Van Winsen (supra) at p6-3; Tattersall (supra); HR Computek (Pty) Ltd v Dr WAA
Gouws (Johannesburg) (Pty) Ltd and Others 2023 (6) SA 268 (GJ); Clarkson (supra) at [40]-[43] and
the further cases referred to at [47]
20 Eskom; Ganes; School Site; Umvoti
in the affidavit.21 Curiously, on the cases referred to herein, Umvoti appears to be the
only one that refused to entertain the challenge to authority raised in the affidavit . In
Ganes, which Umvoti also relied upon, the Court dealt with the challenge raised in the
affidavit and made a finding. Only after the finding did Streicher JA comment about the
rule 7(1) procedure, seemingly, as an afterthought.22
[25] As indicated, the authority of the deponent to institute this application on behalf
of the applicant was challenged by the second respondent. It appeared ex facie the
resolution (NL1) that the authorisation was for the institution of the legal proceedings
on behalf of EIPF and not the applicant. In trying to rectify this problem, Naidoo in the
replying affidavit avers as follows:
‘I am duly authorised by the Appli cant to depose to this affidavit on its behalf.
The institution of this application is also authorised as has been stated and set
out in the founding affidavit. The resolution of the Applicant which authorises
the institution of these proceedings and the deposition to this affidavit has been
annexed hereto as Annexure “LN1” (I assume he meant annexure “R A1” as
that is the annexure to the replying affidavit and “LN1” was the annexure to the
resolution in the founding affidavit).
It did not go unnoticed that what is prominently absent in Naidoo’s replying affidavit is
that Naidoo proffers no explanation or response to the second respondent’s averments
that Naidoo bears no personal knowledge of the facts he purports to be deposing to.
The second respondent’s challenge to Naidoo’s authority was not merely a bare denial
but elaborates on the reason for the challenge.23
21 See Umvoti (supra) at [29]
22 At 624J-625A; See also Herbstein & Van Winsen (supra) at p6-11
23 Cf Eskom; Ganes; School Site
[26] Be that it may, resolution ‘R A1’ which , although proves the applicant’s
authorisation for the institution of the legal proceedings, nevertheless authorises O’Grif
and not Naidoo to institute these proceedings on its behalf. The very document that
Naidoo alleges authorises him to institute these proceedings on behalf of the applicant
states the contrary.
[27] Accordingly, Mr. Hewitt's contention that it is not open for the second
respondent to challenge Naidoo’s lack of authority by raising it in the answering
affidavit but should have done so through the provisions of rule 7(1) as held in the
School Site (supra) is, in my view, opportunistic to say the least. Equally, the applicant
could have also utilised the rules to object to what it seemingly considers ‘irregular’.
Instead, the applicant continued engaging the second respondent’s challenge in what
it now seemingly considers ‘irregular’. The applicant made an election and cannot now
attempt to invoke the provisions of rule 7(1) as a defense.
[28] In any event, as alluded to above, the court has a discretion on whether or not
to entertain a challenge raised in the affidavit. In addition , in my view, Brand JA’s
comments could not have meant that a court should disregard the challenge especially
where it ostensibly appears from the documents filed of record that the person
purporting to be so authorised was in fact not authorised, only because the challenging
party did not utilise the provisions of rule 7(1)24. As indicated by Joubert JA in Clarkson
(supra), rules are not an end in themselves25 and cognisance also to be had on what
our Courts have repeatedly stated, that rules are made for the court and not the court
for the rules.
[29] In HR Computek (supra),26 where it did not appear ex facie the resolution that
the deponent and accordingly the attorney was authorised by the applicant company
24 Cf Umvoti (supra)
25 At [40]
26 Cf Umvoti (supra)
to oppose the proceedings on its behalf, Coppin J did not ignore the applicant’s
challenge to the first respondent’s authority merely because it was not raised in terms
of rule 7(1) but decided the matter on the papers as they stood.27 Similarly, in the most
recent case of Clarkson (supra), where it similarly appeared ex facie the documents
that the deponent was not properly authorised to institute the proceedings on behalf
of the applicant, the Court dealt with the matter on the papers as they stood. As
indicated by the Court in Mall (Cape) (supra),28 each case must be considered on its
own merits and the courts must decide whether enough has been placed before it to
warrant the conclusion that it is the applicant company which is litigating and not some
unauthorised person on its behalf.
[30] Apparent lack of authority on the documents filed of record goes to the root of
the application or opposition of the proceedings themselves. By necessary implication,
it means the juristic person did not initiate those legal proceedings. It is a fundamental
principle of our law that an order is generally taken to be binding only on the parties to
the litigation. This principle is often times emphasised in cases of mis -joinder or non-
joinder of parties where the courts persistently emphasise that a party who has a direct
and substantial interest in the litigation has to be joined not only because he or she or
it may be prejudicially affected by the judgment of the court but also so that the court
order may be effective.29 Therefore, if there is ostensible lack of authority by the person
who alleges to have been authorised to institute or defend the proceedings on that
party’s behalf, what effect would a court order for or against that party have.
[31] In casu, as indicated, it appears ex facie the resolution that the applicant did
not authorise Naidoo to institute and represent it in these proceedings. For all intents
not authorise Naidoo to institute and represent it in these proceedings. For all intents
and purposes, Naidoo could have appointed the attorneys as well , purporting to
represent the applicant.30 By necessary implication, in my view, the applicant did not
institute these proceedings. It also seems to me that even if the second respondent
27 cf Umvoti Mall (Cape).
28 At p352
29 Watson NO v Ngonyama 2021 (5) SA 559 (SCA) at [55]
30 HK Computek (supra)
had proceeded by way of rule 7(1), it still would not have assisted the applicant as the
attempt to rectify what the applicant alleged was a bona fide error in attaching a wrong
resolution, the applicant was still not able to attach a valid resolution as indicated. As
such, the application ought to be dismissed.
[32] In the light thereof, it is not necessary for me to deal with the further in limine
points raised by the second defendant.
Costs
[33] Mr. Janse van Rensburg argued on behalf of the second respondent that it was
not necessary for the applicant to bring this application before court as the Act makes
provision for the applicant to bring this type of complaint to be adjudicated upon by the
Pension Funds Adjudicator. Accordingly, that the applicant should have referred this
matter to the office of the Pension Funds Adjudicator to be adjudicated upon in order
to alleviate the costs the applicant is complaining about that they will have to be borne
by the members.
[34] I agree with Mr. Janse van Rensburg . Although it was the applicant’s right to
institute these proceedings in a court of law and forgo lodging the complaint with the
Pension Funds Adjudicator’s Office, the applicant also has to bear the consequences
of its election.
[35] In the result, I make the following order:
1. The application is dismissed.
2. The applicant to pay the second respondent's party and party costs
including the costs of Counsel at Scale B .
Date of hearing:
Date of judgment:
Appearances:
For the Applicant:
For the Respondent:
PL NOBANDA AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
29 May 2025
02 September 2025
Adv D Hew itt instructed by Soonder Inc c/o W iese
& W iese
Adv E Janse van Rensburg instructed by SJ V an
Den Berg Attorneys