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[2026] ZAGPJHC 1051
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Media Capital (Pty) Ltd v Consortium (2023/030800) [2026] ZAGPJHC 1051 (31 August 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO:
2023-030800
(1)
REPORTABLE: NO/YES
(2)
OF INTEREST TO OTHER JUDGES: NO/YES
(3)
REVISED: NO/YES
In the matter between:
MEDIA
CAPITAL (PTY) LTD
Applicant / Defendant
and
THE
CONSORTIUM
Respondent / Plaintiff
JUDGMENT
VERVEEN
AJ:
This
judgment is handed down electronically by circulating it to the
parties’ representatives by email and by uploading on
CaseLines.
Introduction
[1]
This is an interlocutory application under
Uniform Rule 7(1). The applicant, Media Capital (Pty) Ltd, seeks
leave to dispute the
authority of Alicia van Wyk Incorporated (AVW)
to act for the respondent, The Consortium, in a pending action. It
also seeks attorney-and-client
costs.
[2]
The decisive issue is not whether the
applicant has raised concerns that may warrant investigation. It is
whether it has complied
with Rule 7(1), or established good cause for
leave to mount its challenge outside the prescribed period. For the
reasons that
follow, it has not.
[3]
The application must accordingly fail. In
the circumstances, it is neither necessary nor appropriate to make
definitive findings
on the disputed internal authority of the
Consortium or on the validity of the resolution relied upon by it.
Background
[4]
The respondent instituted the action during
February 2023. The applicant entered an appearance to defend on 30
May 2023 and delivered
its plea on 3 July 2023. The respondent
thereafter applied for summary judgment. The applicant opposed that
application, which
was dismissed, with costs, and the applicant was
granted leave to defend.
[5]
AVW was plainly identified as the
respondent’s attorneys from the inception of the action and in
the ensuing summary-judgment
proceedings. Yet no Rule 7 challenge was
made at that stage.
[6]
On 28 May 2025, approximately two years
after the appearance to defend, the applicant served a Rule 7 notice
disputing the authority
of the respondent’s representative and
AVW. It contends that the authority concern crystallised when Mr
Daniel Rubenstein,
a director of Ann Arbor Capital (Pty) Ltd, one of
the three constituent entities of the Consortium, informed it during
April 2025
that he had not authorised the action or AVW’s
appointment.
[7]
On 8 May 2025, shortly before the Rule 7
notice, the respondent filed a notice of amendment attaching proposed
amended particulars
of claim. The proposed amendment retains the
allegation that the Consortium acted as Killarney Country Club’s
agent, substantially
increases the arrear-rental claim, seeks
cancellation and ejectment, and adds a hold-over claim.
[8]
The respondent replied that the notice was
late and that leave of the Court was required. The applicant
thereafter instituted the
present application and expressly seeks
leave to challenge AVW’s authority. The question is whether its
affidavits establish
the good cause required for that relief. In my
view, they do not provide a full and satisfactory explanation for the
delay.
The governing
principles
[9]
Rule 7(1) does not require a power of
attorney to be filed as a matter of course. It furnishes the
procedural mechanism by which
the authority of a person acting for a
litigant may be disputed: within ten days after the challenging party
learns that person
is acting, or thereafter only with leave of the
Court on good cause shown and before judgment.
[10]
The
enquiry under the Rule is directed to the attorney’s mandate to
institute, prosecute or defend proceedings for the litigant.
It is
not a mechanism for determining every collateral question concerning
a deponent’s authority or a litigant’s internal
governance. Rule 7 concerns the special procedural authority
conferred by a client upon an attorney.
[1]
It is the institution and prosecution of proceedings that must be
authorised; the deponent to an affidavit need not separately
be
authorised merely to depose to it.
[2]
[11]
The
Supreme Court of Appeal has endorsed Rule 7(1) as the appropriate
procedural remedy and cautioned against costly technical disputes
about authority.
[3]
The
obligation to prove an attorney’s authority arises only once
that authority has been properly challenged.
[4]
[12]
The
ten-day period is substantive and purposeful. A late challenge
requires leave and good cause. The Court must consider both a
satisfactory explanation for the delay and prospects of success in
the proposed authority challenge.
[5]
The object of the time limit is to bring certainty and to avoid a
challenge being raised at the whim of an opponent after substantial
litigation has occurred.
[6]
[13]
The relevant question is therefore whether
the applicant has established good cause for leave to serve the late
notice. That requires
a reasonable explanation covering the period of
non-compliance, considered together with the nature and apparent
merits of the
intended challenge and the interests of justice.
Application to the
facts
[14]
The applicant was aware of AVW’s role
by no later than May 2023. It was represented in the action,
delivered a plea, and opposed
the respondent’s summary-judgment
application without challenging AVW’s authority. That was the
point at which Rule
7(1) required the applicant either to deliver its
notice within ten days or to seek the Court’s leave on good
cause shown.
[15]
The applicant relies on the later
information attributed to Mr Rubenstein in April 2025. That
information may explain why the applicant
elected to revisit the
subject. It does not, however, explain its failure to challenge the
authority of the attorneys when it first
knew that they were acting,
as the Rule requires.
[16]
Even accepting the applicant’s
version that material information was received on 8 April 2025, the
notice was served only
on 28 May 2025. The founding affidavit does
not explain that intervening period adequately. The replying
affidavit refers generally
to public holidays and weekends, but it
does not provide a complete factual explanation or cure the omission
in the founding papers.
[17]
The applicant does seek leave in its notice
of motion. It is therefore unnecessary to decide whether a distinct
application under
Rule 27 was additionally required. The substantive
question remains whether the applicant has shown good cause for the
leave sought
under Rule 7(1). The founding papers do not address the
extent of the delay fully, do not provide a satisfactory explanation
covering
it, and do not set out sufficient facts from which the Court
can conclude that the interests of justice favour a departure from
the ordinary time limit.
[18]
This conclusion is fortified by the
litigation history. The applicant was able to defend the action and
oppose summary judgment.
The authority challenge was raised after the
action had proceeded for approximately two years. A challenge at that
stage, without
a cogent explanation for non-compliance, is inimical
to the procedural certainty which Rule 7(1) is designed to achieve.
[19]
Even if the applicant’s proposed
challenge is assumed, in its favour, to possess sufficient
prima
facie
merit to justify investigation,
that cannot compensate for the absence of an adequate explanation.
The applicant has not discharged
the onus of showing good cause for
leave to proceed out of time. The application therefore falls to be
dismissed without a determination
of the disputed substantive
mandate.
The merits need not be
decided
[20]
The applicant submits that the resolution
dated 17 February 2023 is invalid because it was not signed by Mr
Rubenstein. The respondent
contends that the resolution was adopted
and acted upon: it was signed by Messrs Dinnie and Jones; Mr
Rubenstein had knowledge
of the intended proceedings and AVW’s
appointment; and he did not object.
[21]
These competing contentions raise factual
and legal issues about the Consortium’s internal arrangements
and the effect of
the resolution. They are not fit for final
determination in this interlocutory application once the threshold
Rule 7 question has
been decided against the applicant. I add that
the applicant’s reliance on the subsequent Killarney Country
Club correspondence
and the order in the related eviction matter does
not alter that conclusion. Those materials may bear upon the merits
of the pending
action, or upon the Consortium’s relationship
with Killarney Country Club. They do not dispense with compliance
with Rule
7(1), and they do not convert an inadequately explained
late authority challenge into one for which good cause has been
shown.
[22]
It would be inappropriate to make a
declaration that AVW lacks authority on this record. The Rule 7
application is dismissed because
the applicant has not established
the procedural entitlement to pursue its out-of-time challenge, not
because the Court has decided
the disputed internal mandate finally.
Costs
[23]
The respondent has succeeded. The ordinary
rule is that costs follow the result. The respondent seeks costs on
scale C in its heads
of argument but correctly made oral submissions
that it seeks costs on scale B at the hearing of the application.
[24]
The applicant’s conduct does not
warrant a punitive order. A costs order on scale B is nevertheless
appropriate, having regard
to the interlocutory nature of the
application and the costs incurred in opposing it.
Order
[25]
The following order is made:
1.
The application is dismissed.
2.
The applicant shall pay the respondent’s
party and party costs on scale B.
P VERVEEN
Acting Judge of the High
Court
Johannesburg
APPEARANCES
:
Applicant
: L ACKER
Instructed by
: SMITH SEWGOOLAM INC
Respondent
: JW KLOEK
Instructed by
: ALICIA VAN WYK INC
Hearing:
26 August 2026
Judgment:
__ August 2026
[1]
South
African Allied Workers’ Union and Others v De Klerk NO and
Others
1990 (3) SA 425 (E) at 436F–J
.
[2]
Ganes
and Another v Telecom Namibia Ltd
2004 (3) SA 615 (SCA) para 19
.
[3]
Unlawful
Occupiers, School Site v City of Johannesburg
2005 (4) SA 199 (SCA) paras 14–16
.
[4]
FirstRand
Bank Ltd v Fillis and Another
2010 (6) SA 565 (ECP) paras 11–13
.
[5]
Ensemble
Hotel Holdings (Pty) Ltd v Swanvest 328 (Pty) Ltd and others
2024 JDR 0415 (GJ) paras 11–12 and 31–32
.
[6]
Kaap-Vaal
Trust (Pty) Ltd v Speedy Brick & Sand CC
2021 JDR 2625 (GP) paras 17–21
.