CIV/T/610/84 IN THE HIGH COURT OF LESOTHO
In the matter of:
MOEKETSI MICHAEL MQEDLANA Plaintiff
versus PITSO PHAKISO MAKHOZA Defendant
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
of Motion to repudiate all admissions made by his former
attorney at a pre-trial conference held on 25 February 1986. Since
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
Court on the above hearing date an application was made
by the defendant for a postponement so as to file other relevant
record does not show what these were). A postponement was
granted with costs to be paid by the defendant. Two earlier
(on 4 June 1986 and 30 June 1986) had also been granted
at the request of the defendant and the defendant ordered to pay
/The Court ...
The Court file shows that the defendant appointed Mr.
S.C. Buys as his attorney by a Power of Attorney dated 4 December
Buys attended a pre-trial conference with the plaintiff's
attorney on 25 February 1986 and the minutes of that conference were
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
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
Mr. Seotsanyana appeared for the defendant/applicant. He
referred to the affidavit of the defendant which stated that Mr. Buys
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
/4. I warned ...
I warned S.C. Buys about this unconventional
handling of a client's courtbusiness by an attorney, but
discovered tomy dismay that he had already taken it uponhimself
to make certain admissions of factso called to Peter Kabatsi of
Plaintiff'sattorneys without as much as letting me knowof
this serious turn of events and proceededto have his own
admissions recorded by theHigh Court as my own!
Such admissions had neither my authoritynor my post
facto ratification. Upon discovery, I terminated S.C. Buy's
mandate inthis case.
I am making this application to have hisunauthorised
and harmful admissions expungedfrom the record."
Mr. Seotsanyana submitted that it was essential that the
client must attend the pre-trial conference and that he is required
the minutes of the conference-He claimed that the signatures
of attorneys were not enough. He referred to Rule 36 of the High
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
conference with the object of reaching
agreement as to possible ways of curtailingthe
duration of the trial "
/I cannot ...
I cannot find anywhere in the chapter any requirement or
even mention that the actual parties should attend. No doubt they
so if they wished or if the attorney thought it might be
helpful, but there is no authority actually requiring it,as Mr.
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
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
the same point and it seems to be a matter about which
there are no case decisions available. He referred to Estate Mathews
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
that this was to prevent a person whose name is being used
throughout the process from afterwards repudiating the process
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 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.
Whether Mr. Buys discussed the admissions first with the
defendant is not known. There is no affidavit from Mr. Buys and the
affidavit is not clear on this point. In para 3 of it he
refers to his attorney "coming to some agreements or
but there is no direct reference to the pre-trial
conference. If that is what this complaint is all about, as Mr.
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."
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
of attempted murder and sentenced to various terms of
imprisonment. That for the. defendant was three years. And that they
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
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 medical reports on the file confirm the injuries
and treatment. They can be produced and proved or admitted but the
no doubt be the same.
I asked Mr. Seotsanyana to explain just what he
considered to be harmful about these admissions. He did
/not seem ...
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
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
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
case from being tried. He maintained that it was an
abuse of the judicial process and I am inclined to agree. There have
been several previous postponements at the defendant's
request and costs are mounting against the defendant. The case is
on and time is passing.
I make the following findings:-
/1) There ...
There is no legal requirement that theparties must
attend the pre-trial conference held by their attorneys,
butthey may certainly do so if they wish.It is sufficient
for the attorneys onlyto sign the minutes.
An attorney has authority under hispower of
attorney to make admissionson behalf of his client; although
itwould obviously be sensible and prudentfor him to discuss
the matter with theclient before hand.
It would only be in most exceptionalinstances that
a party could be allowedto. repudiate an act performed in
thecase by an attorney under his power ofattorney.
In the present case I find that the admissions
made at the pre-trial conferencewere properly made by the
defendant'sformer attorney with the object of curtailing
the duration of the trial.
I do not find that the admissions madewere harmful
or so harmful to thedefendant that an exception should bemade
permitting him to repudiate themin this instance.
Accordingly the application is dismissed with costs.
P. A. P. J. ALLEN
JUDGE 21st September, 1987
Mr. Septsanyana for Defendant/Applicant
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