CIV/T/610/84

IN THE HIGH COURT OF LESOTHO

In the matter of:

MOEKETSI MICHAEL MQEDLANA Plaintiff

versus

PITSO PHAKISO MAKHOZA ' Defendant

RULING

Delivered by the Hon. Mr. Justice Sir Peter Allen on. the 21st day of September, 1987

The plaintiff has brought this action for damages , for assault. Before the trial could commence the defendant has applied by Notice of Motion to repudiate all admissions made by his former attorney at a pre-trial conference held on 25 February 1986. Since that date both parties have changed their attorneys.

The trial in the main action was fixed for 11 December 1986 but, on 9 December, this Notice of Motion was filed. When it came before Court on the above hearing date an application was made by the defendant for a postponement so as to file other relevant papers (the record does not show what these were). A postponement was granted with costs to be paid by the defendant. Two earlier postponements (on 4 June 1986 and 30 June 1986) had also been granted at the request of the defendant and the defendant ordered to pay costs.

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The Court file shows that the defendant appointed Mr. S.C. Buys as his attorney by a Power of Attorney dated 4 December 1984. Mr. Buys attended a pre-trial conference with the plaintiff's attorney on 25 February 1986 and the minutes of that conference were filed in the Court on 22 May 1986 having been signed on 28 April by Mr. Kabatsi , who was then the plaintiff's attorney, and Mr. Buys for the defendant.

On 30 July 1986, five months after the pre-trial conference, the defendant filed a power of attorney appointing Ramodibedi & Co. to act as his attorney. Rule 15(2) (a) High Court Rules gives a right to a party to terminate his attorney's authority but, under Rule 15(2) (b) he is required to give notice to the Registrar and to all other parties of the termination and whether he has appointed another attorney. There is no such notice on the Court file.

Mr. Seotsanyana appeared for the defendant/applicant. He referred to the affidavit of the defendant which stated that Mr. Buys was engaged to act for him in this case. It went on:-

3. "At about the time S.C. Buys told me that the case was being prepared for trial in terms of the High Court's procedural rules, there developed between the two of us serious disagreements regarding the handling of the trial before the High Court, particularly because S.C. Buys appeared to me to be coming to some agreements or compromises with Plaintiff's side before obtaining my consent before hand.

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3. I warned S.C. Buys about this uncon­ventional handling of a client's court business by an attorney, but discovered to my dismay that he had already taken it upon himself to make certain admissions of fact so called to Peter Kabatsi of Plaintiff's attorneys without as much as letting me know of this serious turn of events and proceeded to have his own admissions recorded by the High Court as my own!

4. Such admissions had neither my authority nor my post facto ratification. Upon dis­covery, I terminated S.C. Buy's mandate in this case.

5. I am making this application to have his unauthorised and harmful admissions expunged from the record."

Mr. Seotsanyana submitted that it was essential that the client must attend the pre-trial conference and that he is required to sign the minutes of the conference-He claimed that the signatures of attorneys were not enough. He referred to Rule 36 of the High Court Rules which, in fact, makes no mention of any requirement that the parties should attend the conference and sign the minutes. It speaks only of the attorneys acting for the parties. Herbstein and Van Winsen's "Civil Practice of the Superior Courts in South Africa" (2nd edn) Chap.XXVII at p.358 explains that:

".The attorney desirous of so doing must in writing request the attorneys acting for all other parties to such action to atten a conference ..... with the object of reaching agreement as to possible ways of curtailing the duration of the trial ..... "

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I cannot find anywhere in the chapter any requirement or even mention that the actual parties should attend. No doubt they could do so if they wished or if the attorney thought it might be helpful, but there is no authority actually requiring it,as Mr. Seotsanyana insisted. He could produce no such authority.

It should not be necessary to explain what a power of attorney means. It clearly puts the conduct of the client's case into the hands of that attorney. He acts as agent for the client who is bound by his actions and agreements.

Mr. Addy for the plaintiff/respondent strongly opposed the application. He cited three S.A. cases but, in fact, none was really to the same point and it seems to be a matter about which there are no case decisions available. He referred to Estate Mathews v Ells 1955(4) S.A. 457, in which the Court considered the requirement that process or summons should not be issued at the instance of an attorney on behalf of the plaintiff unless there has been filed a power of attorney to sue signed by the plaintiff. The Judge held that this was to prevent a person whose name is being used throughout the process from afterwards repudiating the process altogether and saying he had . given no authority. This was not quite the situation here.

I am satisfied that an attorney does have authority under his power of attorney to attend a pre-trial con­ference and to agree to admissions in the case. Obviously it would be advisable that he first discusses the matter with his client, but I cannot find that there is any re­quirement that the client should attend the conference; but clearly he could do so if he wishes.

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Whether Mr. Buys discussed the admissions first with the defendant is not known. There is no affidavit from Mr. Buys and the defendant's affidavit is not clear on this point. In para 3 of it he refers to his attorney "coming to some agreements or compromises" but there is no direct reference to the pre-trial conference. If that is what this complaint is all about, as Mr. Seotsanyana asserted, then it seems rather strange that it does not say so in the founding affidavit with much more certainty.

In the last paragraph of his affidavit the defendant refers to the admissions as being "unauthorised and harmful." But what were these admissions?

The minutes show that the first admission was that on 7 December 1984 the defendant and three others were all convicted by this Court of attempted murder and sentenced to various terms of imprisonment. That for the. defendant was three years. And that they later withdrew their appeal against convictions and sentences.

The other admissions made are all medical concerning the treatment to and injuries suffered by the plaintiff (wrongly referred to in the minutes as the defendant).

It is not clear why these admissions are considered to be harmful. The Court records will confirm the defendant's conviction and sentence, and medical reports on the file confirm the injuries and treatment. They can be produced and proved or admitted but the facts will no doubt be the same.

I asked Mr. Seotsanyana to explain just what he considered to be harmful about these admissions. He did

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not seem to know. He could not find a copy of the minutes among his papers. When he was shown a copy by plaintiff's counsel he declared that it was different from his copy. But the Court has a copy on the file. In my view he had either not read the minutes or was disregarding them for some purpose.

I asked if he had discussed the minutes with the defendant before the hearing of this application so as to discover just What he was objecting to. Mr. Seotsanyana's reply was evasive. He merely declared that the defendant had a right to object to all or any of the admissions because they were made without his permission.

So it appeared that he now based his argument on a principle rather than or specific facts in the matter. It would not then matter how harmless or otherwise the admissions were, he still wished to have them expunged from' the record.

If counsel had discussed the actual admissions with the defendant first it is difficult to see how a reasonable person would be likely to object to them. There should be no great difficulty in proving the same facts in Court.

Mr. Addy submitted that the application was nothing more than yet another time wasting action designed to frustrate and prevent this case from being tried. He maintained that it was an abuse of the judicial process and I am inclined to agree. There have already been several previous postponements at the defendant's request and costs are mounting against the defendant. The case is dragging on and time is passing.

I make the following findings:-

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1) There is no legal requirement that the parties must attend the pre-trial con­ference held by their attorneys, but they may certainly do so if they wish. It is sufficient for the attorneys only to sign the minutes.

2) An attorney has authority under his power of attorney to make admissions on behalf of his client; although it would obviously be sensible and prudent for him to discuss the matter with the client before hand.

3) It would only be in most exceptional instances that a party could be allowed to. repudiate an act performed in the case by an attorney under his power of attorney.

4) In the present case I find that the ad­missions made at the pre-trial conference were properly made by the defendant's former attorney with the object of cur­tailing the duration of the trial.

5) I do not find that the admissions made were harmful or so harmful to the defendant that an exception should be made permitting him to repudiate them in this instance.

Accordingly the application is dismissed with costs.

P. A. P. J. ALLEN

JUDGE

21st September, 1987

Mr.Addy for Plaintiff/Respondent

Mr. Septsanyana for Defendant/Applicant