Locus standi of first respondent, non-joinder of first respondent’s sister and misjoinder of appellant raised as preliminary points in Land Court; agreed objection of locus standi to stand over for determination together with the merits; Court declining to join first respondent’ sister as applicant for lack of sufficient interest in the matter; Appellant, shareholder and director of company, cited in personal capacity without citing company; Court mero motu holding that appellant in personal capacity and company both be cited as respondents;
On appeal against decision of Land Court- Held, confirming decision of Land Court - first respondent’s sister not to be joined as had no interest in proceedings; Held further, appellant improperly joined - only company had direct interest in proceedings; as company not initially made party, first respondent given leave to join company as respondent, if so advised. Appeal partly successful - Costs order reflecting partial success accordingly made
IN THE COURT OF APPEAL OF LESOTHO
C of A (CIV) No. 62/2019
HELD AT MASERU
In the matter between
LEBOHANG THOTANYANA APPELLANT
NTHABELENG MOTSAMAI 1ST RESPONDENT
SALEM PRPPERTIES (PTY) LTD 2ND RESPONDENT
GEORGE THABO MONAHENG 3RD RESPONDENT
THE COMMISSIONER OF POLICE 4TH RESPONDENT
THE LAND ADMINISTRATION AUTHORITY 5TH RESPONDENT
THE MASTER OF THE HIGH COURT 6TH RESPONDENT
THE ATTORNEY GENERAL 7TH RESPONDENT
CORAM: MOSITO P
HEARD: 13 OCTOBER 2020
DELIVERED: 30 OCTOBER 2020
Court decision on preliminary issues
“ … I uphold Mr Rasekoai’s contention that a company exist independently of its members and as such the citation of Mr Thotanyane t/a is not proper. This however is not the end of the matter under the circumstances of this case as will be shown later in this Ruling. The next question before striking out Mr Thotanyane, is whether in this personal capacity, he has no direct and substantial interest in the subject matter of this litigation, which may be affected prejudicially by the judgement of this court; this being the test to determine both pleas of non-joinder and misjoinder. Henri Viljoen Pty (Ltd) Awerbunch Brothers 1953(2) SA 151 AT 168-170. Cited in S v S Case No: 71/2015 High Court of South Africa, Free State Division, Bloomfontein.
“ To answer this question in relation to Mr. Thotanyane, the 2nd and 3rd respondents in challenging the applicants capacity to institute these proceedings, place reliance on a sale agreement concluded between Esther Motsamai (the applicant’s mother) and Mr Thotanyane in his personal and not representative capacity (see in this regard para 2(a) of the 2nd respondent’s answer, para 2(b) of the 3rd Respondent’s answer and para 10.3,10.5 and 10.6 of the 1st respondent’s answer). The averments contained therein suggest at this point that Mr Thotanyane’s agreement with the applicant’s mother gave birth to the litigation both in the Commercial Court and subsequently this present application. This, in my view makes him necessary party in these proceedings. He should however be cited as a party independent of the company (Mafube Investments).”
Grounds of appeal
“(1) The learned judge in the court a quo erred and misdirected herself in concluding that the non-joinder of the elder sister of the applicant in the court a quo is not well taken, especially when having due regardto the fact that the heirship status of the applicant in the court a quo is disputed.
(2) The learned judge in the court a quo erred and misdirected herself by concluding that appellant herewith can be joined in his personal capacity.
Still incidental to the point in paragraph 2 above:
(3) (a) The learned judge in the court a quo erred and misdirected herself by effectively joining both the appellant and the company when the company was not party to the proceedings after all.
(b) The learned judge in the court a quo erred and misdirected herself by making conclusive findings of law to the effect that both the pleas of non-joinder and misjoinder are only dilatory when the latter can be fatal if upheld.”
Contentions on misjoinder: separate legal personality of a company
“It seems to me impossible to dispute that once a company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are….
Either the limited company was a legal entity, or it was not. If it was the business belonged to it…. If it was not there was no person and no thing to be an agent at all; and it is impossible to say at the same time, there is a company and there is not.”
“A company is, in law, a juristic person (persona juris). It is in law considered to be an abstract legal entity which exists as a juristic reality in the contemplation of the law despite the fact that it lacks physical existence.
It is in law, through its representatives or agents (per actores syndicosque), capable of knowing, intending, willing, acting, acquiring rights and obligations, possessing proprietary rights and committing delicts and even crimes. This conception of corporate personality is founded in our common law as appears from the following passages in Voet as translated by Gane: Voet,1.8.28:
‘Who but a stranger to the law does not know that corporations are held to stand in the place of persons in contracts and wills. They make contracts through their agents and representatives. Like persons they are bequeathed inheritances, legacies, nay even usufructs, which are personal servitudes cleaving to the frames of persons. With the fictitious death of a corporation such rights perish. Assuredly that a personal obligation intervenes, whenever a debt is due by or to a corporation on contract.’”
1. The appeal against the Land Court decision refusing to join the 1st respondent’s sister, Nthabiseng Motsamai, as a party to the proceedings before that Court, is dismissed.
2. The appeal against the joinder of the Appellant is upheld.
3. The order of the Land Court directing the 1st respondent to amend her originating papers so as to include Mafube Investment Holdings (Pty) Ltd as a party to the proceedings before that Court is amended to read:
“The applicant may, if she so wishes, amend her originating application and include Mafube Investment Holdings (Pty) Ltd as a respondent, provided such application is lodged within 7 days of this order.”
4. The 1st respondent shall pay 85% of the appellant’s costs of appeal and in the court a quo.
M H CHINHENGO
ACTING JUSTICE OF APPEAL
DR K E MOSITO
PRESIDENT OF THE COURT OF APPEAL
N T MTSHIYA
FOR APPELLANT:ADV MAKARA (Assisted by MR M RASEKOAI)
FOR RESPONDENTS:ADV C J LEPHUTHING
(Assisted BY MR S E PULE)
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