IN THE HIGH COURT OF LESOTHO In the
MAJARA MAKAMA Applicant
SISTER GISELE FOUCREAULT 1st Respondent REITUMETSE
CHURCH PROJECT 2nd Respondent
J U D G M E N T
Delivered by the Hon. Acting Mr. Justice M.L. Lehohla on
the 5th day of May, 1987.
RULING ON POINTS RAISED IN LIMINE
On 21st April 1987, applicant in the above matter
approached Court ex parte. My brother Sir Peter Allen J. let a Rule
returnable on 27th April 1987 but refused to make an
On 24th April 1987 Respondent filed simulteneously the
following sets of papers each of which bears proof of service on
1 Notice of intention to oppose to which are attached
1st Respondent's opposing affidavit
and annexure "A" the constitution of 2nd
Notice of Motion in terms of Rule 8(16)
otherwisebetter referred to from the point of view of
itsfunctional purpose as notice of application forjoinder of
the 2nd Respondent.
Counter application to which are attachedaffidavits
of Ntai Ramakau and Mojansi Monkhe
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and a series of Annexures marked "A" (again)
through "T" being invoices issued from Frasers
I was informed from the bar that even before the filing
of the counter application referred to in (3) above the application
or 2nd Respondent was granted unopposed.
It is common cause that what is tabled before Court in
these proceedings are the main application and the counter
prayer for their consolidation was granted.
The main application consists of a Notice of Motion
wherein applicant net out his prayers for a Rule Nisi calling upon
to show cause why:
The respondent shall not be restrained fromentering
applicant's premises and removingbuilding material kept and
stored at applicant'spremises, pending a civil action to be
institutedin the High Court.
The respondent shall not be ordered to returnthe
building material she removed withoutapplicant's consent to
The respondent shall not be ordered in thealternative
to (a) and (b) hereof, to payapplicant the sum of M21,000 rental
(d) The respondent shall not be ordered to pay costs
The applicant shall not be given such furtherand/or
That prayer 1(a) operate as an interim interdictwith
As pointed above although the rule nisi did issue prayer
2 was however refused. If I may add my word to it, this was properly
The counter application due to have been heard on
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April 1987 pleaded for an order :-
Dismissing the applicant's application in toto.
(b) Restraining the applicant from preventing the 2nd
respondent from removing all its property from applicant's site.
Directing the applicat to pay the costs of
application on an attorney and client scale
Further and/or alternative relief.
It is against the above background that on 5th May 1987
Mr Nthethe for the applicant in the main application or
respondent in the counter - application (hereinafter, for the sake of
to as applicant) raised a point in limine
against the respondents in the main application or applicants in the
counter-application (hereinafter referred to as 1st and 2nd
respondents as the case may be).
As the basis of his submissions in support of the points
raised in limine Mr. Nthethe pointed, out that 1st
Respondent Sister Gisele filed opposing affidavit to the main
application. In para. 17 thereof she deposes
that the some affidavit
is in opposition to the main application and in support of the
counter - application lodged by 2nd Respondent.
In para 10 of applicant's replying affidavit applicant
deposes as follows :- "I notice that there is no authority from
Project; in the result this affidavit cannot be
admissible for the Counter application as alleged."
In Para 2 of applicant's 1st opposing affidavit
the applicant deposes and makes it plain to 2nd respondent that:-At
the hearing, I shall apply to Court to expunge this affidavit
on grounds of lack of necessary Resolution."
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Applicant adopted this attitude in response to Mojansi.
Monkhe's affidavit and clearly held in question the deponent's locus
Mr. Nthethe contends that likewise 1st
Respondent does not have the necessary authority from 2nd Respondent
in as much as 2nd Respondent is
an artificial person in respect of
whom a resolution is a sine qua non at litigation.
Referring to the constitution of 2nd Respondent marked
annexure "A" applicant's counsel submitted
that by agreeing to be joined as a co-respondent with the 1st
respondent it assumed
power to sue and be sued which is one of the
characteristics of artificial persons
It was accordingly submitted on behalf of applicant that
in the absence of express authority 1st respondent could not depose
affidavit on behnlf of 2nd Respondent.
Indeed were it to be assumed that through some mishap
the express authority was left out some reference to it by 1st
her affidavit would serve as a legitimate ground for
concluding that 2nd respondent's contention that it had authorised
the 1st respondent
to act on its behalf would not be entirely
baseless. Needless to say that no resolution to that effect or at
all has been annexed.
Submitting that it is trite that if one deposes and
brings action on behalf of on artificial person he or she must do so
of proof of a "properly worded resolution. Mr.
Nthethe referred me to R.T. Morrison (Pty) Ltd vs Belle
206 where at page 209 Mofokeng J. said :-
"There is no resolution of the company that it duly
resolved to institute proceedings against the respondent nor
that those proceedings
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were instituted at its instance."
I indeed accept that the proposition is trite for as set
out in Mall (Cape) (Pty) Ltd vs Merino Ko operasie Bpk 1957(2)
S.A at 351 Watermeyer J. said:-
"There is a considerable amount of authority for
the proposition that, where a company commences proceedings by way of
it must appear that the person who makes the petition on
behalf of the company is duly authorised by the company to do so.
........ This seems to me to
be a salutary rule and one which should apply also
to notice of motion proceedings where the applicant is
an artificial person. In such cases some evidence should be placed
the court to show that the applicant has duly resolved to
institute the proceedings and that the proceedings are instituted at
While it is a mere truism to urge that in a counter
-application this statement of the law should be observed, I think it
to emphasise that the proposition is of equal force
where any person deposes to act on behalf of an artificial person who
in such proceedings.
Mr.Nthethe bringing to Court's attention the
sympathetic attitude adopted by Courts in accepting pleas couched in
the phrase "I have been
duly authorised to bring these
proceedings which is a bare allegation was quick to submit that in
these proceedings even this bare
allegation is locking and laid
stress on the fact that when an artificial
person commences proceedings . .............
it must appear that the person who makes the
petition or affidavit on behalf of the artificial person is duly
authorised to do so.
It was prayed that the counter application be dismissed
with costs to be borne by deponents themselves.
In response Miss Mofolo for respondents referred
me to lot respondent's opposing affidavit at para 2 which reads:
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"I am the Liaison officer of an Association known
as Reitumetse Church Project, herein-after referred to as the
being registered, which is a charitable
non-profit making organisation."
She further referred me to affidavits of Ramakau and
Monkhe ad para 2 respectively the upshot of which is that the
deponents are the
General Director and Treasurer respectively of the
committee of 2nd respondent. She further referred me to Annexure
Articles 4.2, 4.8 and 5.2 thereof setting out
functions of the Liaison officer under Article 4 and those of
the Executive Committee under Article 5.
Miss Mpfolo accordingly submitted that sweeping
as these powers appear to be in the constitution they nonetheless
indicate that the deponents
had authority to bring the proceedings
before this Court. She attributed the absence of a proper
resolution to the haste with which papers were drawn. To illustrate
her point she submitted that
service on 1st Respondent was effected
on 22nd April, 1987 requiring cause to be shown on 27th April 1987.
Thus she was left with
only 2 days within which to file opposing
affidavit because the other days were non-dies i.e. Sunday and
Saturday. Further that her client was served only on Wednesday
preceding the Monday which was a return day. She
further stated that
1st respondent was informed of the need to file the resolution and
that her attorneys duly prepared it and that
it is ready and at hand,
however failure to file it of record she, submitted, was the
responsibility of her office.
Accordingly she begged leave to hand in the resolution
and submitted that this would in no way prejudice applicant on the
while 2nd respondent would suffer inculculable harm on the
other hand if it cannot bo allowed the indulgence
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to file the resolution.
Finally she submitted that the point in limine
challenges the authority of deponents but urged that such authority
should be accepted even at this late stage since the matter does
go to the merits of applicant's case.
In reply Mr. Nthethe opposed the handing in of
the resolution from the bar and pointed out that compared with the
bulk of papers filed by respondents
the filing of the resolution if
indeed it was ready for filing at the time would have been a very
light task since generally a resolution
of the type required in the
present proceedings would consist of. less than half a page of
standard papers used in court.
He submitted that it seems there was ample time within
which to rectify this irregularity. He pointed out that respondent's
was served with the opposing affidavit on 29th April but
even as of 6th May she had not filed the resolution notwithstanding
fact that under the Rules she is entitled to file replying
affidavits to the opposing affidavit filed in the counter
Even at this state respondents should have set out in
such reply reasons for failure to file their resolution while
at the same time; but they didn't.
It was also urged on me not to lose sight of the fact
that it was made clear in the opposing affidavit that the 1st
respondent's locus standi was held in question as early as
29th April 1987. Accordingly Mr. Nthethe pointed out that the
application on behalf of respondents to submit the resolution is an
afterthought and therefore should not be
Vehemently contending that the argument is invalid
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that handing over the resolution is not prejudicial he
pointed out that throughout there papers applicant has been saying
has had no dealings with 2nd respondent. Thus bringing in 2nd
respondent into the arena is going to prejudice the applicant, it was
Mr. Nthethe submitted that it would create a dangerous
precedent to allow respondents' attorney to hand in this resolution
ample opportunity that she had to do so. Reiterating his
earlier submission on the point he invited the court to assume for
sake of argument that authority had initially been left out by
misadvertence; and posed the question that "couldn't in such
circumstances there have been an averment, in the affidavit that I
depose to this affidavit in my capacity as an employee of 2nd
respondent in terms of whose resolution dated such and such I
have been authorised to depose as follows ................
I have read the papers, heard arguments and come to the
conclusion that articles referred to in Annexure "A" cannot
as a substitute for a properly worded resolution. In
Morrison supra where an attempt to read into the power of
attorney the meaning that a resolution ordinarily carries was
rejected by Mofokeng J.
in the following terms :-
"It is quite obvious that this document is not the
document envisaged by my brother Rooney J. This document referred to
is of a general character."
In CIV/APN/8/87 L.E.C. VS MOROJELE & OTHERS
(unreported) an argument by applicants' attorney that due to shortage
of time provided by the rules in the event that respondents
in an ex
parte application should anticipate the rule nisi failed to file
their relevant papers was rejected with costs.
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I have no doubt in holding the view that on arguments
advanced it appears that the filing of the resolution by 1st
respondent on behalf
of 2nd respondent is on afterthought to which
she was awakened by applicant's averments in his opposing affidavits
The ruins of Court should be strictly adhered to. See C.
of A. (CIV) No. 16 of 1984 Kutloano Building Construction vs
Matsoso & 2 Others (unreported) at 7.
I accordingly uphold with costs the application in
limine. For clarity I should mention that costs ere awarded against
I however am not disposed to reject in toto the counter
application. Consequently while holding that 2nd respondent is not
before court as 1st respondent has no authority to represent
it I give an order giving respondents an opportunity to correct their
papers within 21 days falling which the rule in the main application
should be confirmed in terms of prayers 1(a) (b) (c) and (c)
notice of motion and that prayed for in the counter application
The costs incurred by applicant/respondent in treating
of the counter application are awarded to him as well.
ACTING JUDGE. 8th May, 1987.
For the Applicant : Mr Nthethe For the
Respondents: Miss Mofolo
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