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.

2

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.

   
   

3

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 ..... "

4

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.

5

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

6

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:-

7

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