SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE LOCAL DIVISION: MTHATHA]
CASE NO. 1542/2025
In the matter between:
SBV SERVICES (PTY) LTD Applicant
and
NOPHUMZILE NIKIWE MPINI 1st Respondent
BONGANI MPINI 2nd Respondent
ZOLILE SYDWELL MPINI 3rd Respondent
ZIMELE MPINI 4th Respondent
SINAWO MPINI 5th Respondent
ODWA MPINI 6th Respondent
S[...] M[...] obo B[...] M[...] 7th Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA J
[1] This is an application in terms of rule 30(1) of the Uniform Rules of Court at the
centre of which is the respondents’ notice of bar which the applicant seeks an order
setting it aside as an irregular step. This, until a court has been satisfied about the
authority of the respondents’ attorneys to represent the respondents.
[2] The brief history of this matter, to the extent that it is relevant for the purposes of
determining this application is as follows. The respondents ( qua plaintiffs) issued
summons against the applicant ( qua defendant) claiming delictual damages
consequent upon the alleged shooting and killing of the late Luti Mpini, by security
guards under t he employ of the applicant, a company registered in the appropriate
fashion for the provision of security services and specialising in cash conveyance.
The deceased was the biological son of the first respondent and a sibling of the
second to the sixth re spondents and also the biological father of a minor child for
whom the seventh respondent acts in a representative capacity as the mother and
natural guardian.
[3] After being served with the summons, the applicant filed a notice of intention to
defend the action simultaneously with a notice in terms of rule 7(1) the essence of
which was the applicant disputing the respondents’ attorneys’ authority to act for
them. The respondents’ attorneys filed a reply to the rule 7 notice to which they
attached seven separate powers of attorney signed by each one of the plaintiffs
confirming that S. R. Mhlawuli & Associates are their attorneys and that they
authorised them to institute the action proceedings against the applicant to claim
damages consequent upon the death of the deceased. The reply to the rule 7 notice
was filed simultaneously with the notice of bar in terms of which the applicant was
given five days within which to file or deliver its plea to the action.
[4] It is the filing of the notice of bar that spurred this application. In its founding
affidavit the applicant’s case is that the period of 20 days referred to in rule 22(1) 1 of
the Uniform Rules of Court shall only commence running a day after a court shall
have been satisfied of the auth ority of the respondents’ attorneys to act for them.
The applicant contends that, as it was entitled to, it disputed the authority of the
respondents’ attorneys to act for the respondents by issuing a rule 7(1) notice.
Therefore, the respondents’ attorneys were not permitted to act for them until they
had satisfied a court of their authority to act for the respondents. It was contended
that it was insufficient for the respondents’ attorneys to file the powers of attorney as
the said powers of attorney were merely an attempt by them to satisfy the applicant
of their authority to act for the respondents. That did not, without a court making a
pronouncement that it was satisfied of their authority, entitle them to continue acting
and file a notice of bar as the y did. Therefore, the filing of the said notice of bar,
absent a pronouncement by a court, was an irregular step. That is the essence of the
applicant’s case.
[5] In their opposing affidavit the respondents’ case is that once they filed their
powers of attorney which they had granted to their attorneys of record to act on their
behalf, nothing more was required of them and their attorneys were thereupon
entitled to continue acting for them. They further contend that the applicant’s
complaint was therefore based on a misconception of the legal position as an
attorney who produces a power of attorney to act on behalf of the litigant concerned
is not required to await a judicial pronouncement on his or her authority to act.
Therefore, the notice of bar which was filed on their behalf by their attorneys was not
1 Rule 22(1) reads: Where a defendant has delivered notice intention to defend, he shall within twenty days
after the service upon him of a declaration or within twenty days after delivery of such notice in respect of a
combined summons, deliver a plea with or without a claim in reconvention, or an exception with or without
application to strike out.
an irregular step as nothing beyond the filing of the powers of attorney was required
in the circumstances of their case.
[6] The applicant’s attorneys filed very long heads of argument running to 25 page s
with 83 paragraphs to which they attached judgments from the Gauteng Division of
the High Court and the North West Division of the High Court. Both judgments,
despite having been decided long after Fillis2, a decision of this Division which is an
authority on rule 7(1) do not refer to Fillis. Most disappointingly, even in their very
long heads of argument the applicant’s attorneys also ignored Fillis which has been
and continues to be good law in this Division.
[7] In Fillis from which I quote liberally, after making reference to and discussing case
law preceding the advert of rule 7, Eksteen J stated the current legal position
governed by rule 7 as follows:
“[12] In 1987 the Uniform Rule of this Court were considerably revised. In term of the
revised rule 7 of the Uniform Rules of Court a power of attorney establishing the
authority to act on behalf of a litigant need no longer be filed as a matter of
course. If, however, an attorney’s authority to act on behalf of a party is
challenged, then in terms of rule 7 of the Uniform Rules of Court, the attorney is
required to satisfy the Court that he is properly authorised to act on behalf of the
litigant. Until he has done so he is precluded from acting further. In order to do
so he is required to produce proof of his mandate, usually a power of attorney,
and, where necessary, an appropriate resolution authorising the signature of the
power of attorney.
[13] The obligation to establish this authority only arises when the authority to
prosecute the p rocess is challenged. In the present matter Attorneys Spilkins’
authority to prosecute the action and the application for summary judgment has
not been challenged and is accordingly not in issue. What is contested is the
not been challenged and is accordingly not in issue. What is contested is the
authority of the deponent Freebor ough to depose to any affidavit. Accordingly,
the reasoning in the Pretoria City Council matter finds no application in this
2 First Rand Bak Ltd v Fillis and Another 2010 (6) SA 565 (ECP).
matter. The challenge to the authority to depose to an affidavit is, in my view,
entirely misconceived. The same point was raise d in the matter of Gans and
Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA). In that matter Streicher
JA disposed succinctly of this argument at 624F-H where he said.
‘There is no merit in the contention that Oosthuizen AJ erred in finding that the
proceedings were duly authorised. In the founding affidavit filed on behalf of
the respondent Hanke said that he was duly authorised to depose to the
affidavit. In his answering affidavit the first appellant stated that he had no
knowledge as to whether Hanke was duly authorised to depose to the founding
affidavit on behalf of the respondent, that he did not admit that Hanke was so
authorised and that he put the respondent to the proof thereof. In my view, 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.’”
[8] Counsel for the applicant was not able to make any meaningful submissions on
whether it was expected of a litigant whose authority has been challenged and in
circumstances in which nothing was being said to gainsay the said attorney’s
authority to act on behalf of her or his client as evinced in a power of attorney, that
attorney, should, nonetheless, set the matter down, specifically to hear if the court
will pronounce itself as being satisfied of the attorney’s authority to act for that
litigant. I find it unfathomable that a court should be expected to make any
pronouncement when the litigant who challenged the authority has not or is unable to
question the authority conferred on that attorney by that litigant as evinced through a
power of attorney.
[9] Even more interesting is, where the hearing of a matter on the merits has been
[9] Even more interesting is, where the hearing of a matter on the merits has been
concluded and judgment has been reserved at the time a rule 7 notice is filed,
whether a court should convene a special sitting when there is nothing that has been
filed to gainsay the authority as demonstrated through the power of attorney? I do
not think so. No meaningful submission was made in this regard, understandably so,
as the issue raised by the applicant is unsustainable, misplaced and appears to have
been adopted in blissful ignorance of the Fillis judgment, an authority on that issue in
this Division which has not been upset by a higher court as far as I am aware. There
is also the issue of the illogicality of a court having to make a pronouncement on an
issue that ceased to be live as soon as the attorney’s mandate has been
established. Were this to be the case, the speedy finalisation of cases and the
avoidance of unnecessary delays would be thwarted in circumstances where the
authority would no longer be in doubt.
[9] In all the circumstances, the application stands to be dismissed as it is entirely
devoid of merit and is totally misconceived, if not entirely misguided.
[10] In the result, the following order is made:
1. The applicant’s application in te rms of rule 30(1) of the Uniform Rul.es of Court is
dismissed.
2. The applicant is ordered to pay the costs of the application on scale B.
__________________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
Appearances :
Counsel for the applicant : J L Hobbs
Instructed by : Engelbrecht Attorneys Inc.
c/o J. A. Le Roux Attorneys
Mthatha
Attorney for the respondents : S R Mhlawuli
Instructed by : S R Mhlawuli & Associates
Date of hearing : 9 October 2025
Date delivered : 2 December 2025