IN THE HIGH COURT OF LESOTHO In the
METROPOLITAN HOMES TRUST LIFE (PTY) LTD Applicant
SIMON MAHASE MAKEPE Respondent
Delivered by the Honourable Mr, Justice J.L. Kheola on
the 19th day of March, 1990
This is an application for rescission of the default
judgment granted by this Court on the 30th June, 1989 and a prayer
as the Court might deem fit.
The original application was set down for hearing on the
14th April, 1989 and it appeared in the weekly roll immediately
the Motion Roll. Mr. Maqutu,attorney for the respondent,
was aware that the matter was set down for hearing on that Friday.
However, when the matter was called he was no longer in Court. Mr.
Mahlakeng, attorney for the applicant, decided to go ahead and
applied for a default judgment. After he had addressed
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the Court judgment was reserved and on the 30th June,
1989 a default judgment was granted as prayed.
The branch manager of the respondent company has filed
an affidavit in which he deposes that he was surprised when he was
a writ of execution on the 4th September, 1989. He was
not aware that the matter was heard on the 14th April, 1989 and that
was delivered on the 30th June, 1989. The Notice of set-down
was served on the respondent's attorneys on the 5th December, 1988.
There is nothing to show that Mr. Maqutu informed his client about
the date of the hearing of the matter. He was probably under no
obligation to insist that a representative of his client should be in
Court when the matter was argued. As this was an application
no oral evidence was going to be led the attendance of the
representative of the respondent was not necessary if Mr. Maqutu
that he had enough instructions to argue the matter.
It is therefore clear that the applicant cannot be
blamed for failure of its branch manager to appear on the 14th April,
the arguments were to be heard. Only its attorney must be
blamed for failing to appear on the 14th April, 1989. There are
cases which deal with the negligence of an attorney in
failing to do certain things for his client and the circumstances
the client may be debarred from obtaining the relief he
seeks. One of such cases is Rose and Another v. Alpha Secretaries Ltd
(4) S.A. 511 (A.D.) the headnote reads as follows:
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"It is undesirable to attempt to frame a
comprehensive test as to the effect of an attorney's negligence on
his client's prospects
of obtaining relief under Rule 12 or to lay
down that a certain degree of negligence will debar the client and
another degree will
not. It is preferable to say that the Court will
consider all the circumstances of the particular case in deciding
whether the applicant
has shown someting which justifies the Court in
holding in the exercise of its wide judicial discretion, that
sufficient cause for
granting relief has been shown."
(See also Regal v. African Superstate (PTY) LTD. 1962
(3) S.A. 18 (A.D) at p. 23; Saloojee and another NNO v. Minister of
(2) S.A. 135 (A.D.) at P. 141).
The applicant's attorney has filed an affidavit in which
he deposes that the matter was set down for the 14th April, 1989. It
a highly contested matter and that was a motion day. He was at
the High Court and expected respondent's attorney to let him know
when he appeared before the judge about the matter. He further
deposes that he enquired from the Registrar whether such a contested
matter would proceed, but he was informed that it would not. He got
the impression that they had agreed with the respondent's attorney
that the matter could be postponed to a suitable date. He is now
realises that he was mistaken and probably took a postponement for
In his submissions Mr. Mahlakeng never attempted to put
the blame on the applicant for the non appearance of its attorney. He
the blame on Mr Maqutu because earlier that morning he (Mr.
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was in the motion Court but vanished immediately after
the motion roll was completed. I am convinced that the applicant
denied the relief it is applying for because its attorney's
neglect cannot be imputed to it. It was not even aware that the
had been set down for the 14th April, 1989. It became aware of
the default judgment on the 4th September, 1989 when it was served
with a writ of execution; and it took prompt action to have the
judgment rescinded. On this ground alone the judgment must be set
aside and the matter be re-opened for argument.
The second ground on which Mr. Mahlakeng opposed the
application was that it did not comply with Rule 8 (8) of the High
1980 in that the address to which correspondence and
pleadings were to be addressed was not given. I think that this is a
point because an application for rescission of a judgment
is not the initial application; the particulars of the parties
appear in the original application. In the instant case the
address appears in the Notice of Intention to Oppose dated the 2Sth
The third ground on which the application was opposed
was that the person who made the founding affidavit in the rescission
has no authority to do so and that the power of attorney
was filed on the 17th October, 1989 while the application was
the 7th September, 1989. In other words on the 19th
October, 1989 when the application was argued before me the power of
was already in the file. It appointed Mr. Maqutu
as the applicant's agent in the application for the
rescission of judgment and stay of execution in case No.
CIV/APN/278/88. It further
ratified all such actions executed by Mr.
Maqutu before the date of signing of the power of attorney in the
opposing of application
No. CIV/APN/278/88 brought by S.M. MAKEPE.
The power of attorney is dated the 16th October, 1989
and was already before me on the 19th October, 1989. It is very clear
power of attorney that these proceedings are being brought
by the applicant who was the respondent in the original/main
On the question of ratification I only have to refer to
Estate Oosthuizen v. Botha (1) 1940 (2) P.H.A42 in which it was held
it is a principle of our law of agency that ratification may
take place at any stage, and that when once it takes place it relates
back to the commencement of the act or acts ratified.
In Ashley v. S.A. Prodential, Ltd, 1929 T-P.D. 283 it
was sought to obtain a postponement in order to prove ratification.
was refused. In the present case the evidence of
ratification was before the Court, and given in due time.
Mr. Mahlakeng referred to Mall (Cape) (Pty) Ltd v.
Merino Ko-operasie Bpk., 1957 (2) S.A. 347 (C.P.D.) whose headnote
reads as follows:-
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"When an artifical person, such as a company,
commences notice of motion proceedings some evidence must be placed
Court that the applicant has duly resolved to institute
the proceedings and that the proceedings are instituted at its
Though the best evidence that the proceedings have been
properly authorised would be provided by an affidavit made by an
of the company annexing a copy of the resolution, such form
of proof is not necessary in every case. Each case must be considered
on its own merits and the Court must decide whether enough has been
placed before it to warrant the conclusion that it is the applicant
which is litigating and not some unauthorised person on its behalf."
He submitted that there was no evidence that the branch
manager of the applicant, Ashton Petlane, was authorised by the
to institute these proceedings because he attached no
resolution by the Board of Directors of the applicant to that effect.
view this submission cannot stand because we now have a power
of attorney which is conclusive proof that these proceedings are
brought by the applicant company.
In his affidavit Ashton Petlane avers that he is "duly
authorised to make this affidavit"., The respondent has given no
evidence that this is not the case. In Mall's case - supra - at p.
352 Watermeyer, J. said:
"I proceed now to consider what the applicant has
put before the Court in the present case, de Witt, the secretary of
Society, states in para. 2 of his affidavit: "I am
duly authorised to make this affidavit." Mr. Knight, for the
submitted that, although it was not specifically so stated
by de Witt, it was clear from para. 2 that it was the applicant
which had conferred authority upon him. That inference is, I
think, irresistible, Mr. Knight submitted next that the use of the
"duly" shows that the authority conferred upon de Witt
had been properly conferred i.e. that all the necessary formalities
prescribed by the applicant Society's constitution had been complied
with. With this submission I am also in agreement."
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It seems to me that it is not enough for the respondent
to infer from the absence of a resolution annexed to the founding
that there is no authority to institute the proceedings,,
Something more must be proved especially where the deponent avers
he is duly authorised to make the affidavit.
For the reasons stated above the application is granted
as prayed with costs.
J.L. KHEOLA JUDGE
19th March, 1990.
For Applicant - Mr. Maqutu For Respondent - Mr.
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