IN THE HIGH COURT OF LESOTHO
ENTERPRISES (PTY) LTD PLAINTIFF
CHANG CHI (Mr ) 2nd DEFENDANT
LIN (Mr) 3rd DEFENDANT
by the Hon. Mrs Justice A. M. Hlajoane on 18th
case is based on a Sublease Agreement relating to the Commercial
premises situated at Maputsoe Plot No.23134 - 019. The
claim is about
arrear rentals owed to the Plaintiff by the Defendants in breach of
the said Agreement for none performance of payment
on their part.
Defendant had filed notice of appearance to defend and subsequent to
that also filed notice of exception. The exception
was taken on the
basis that Plaintiffs declaration lacked averments necessary to
sustain an action against the third Defendant.
Defendant has given grounds upon which his exception is founded. He
says that he was not a party to the agreement and
as such incurred no
personal liability against the plaintiff. He merely acted on behalf
of the first Defendant and in his capacity
as duly authorized
representative of the first Defendant. Also that Plaintiffs
declaration alleges no alternative ground upon which
Defendant could be held liable in his personal capacity for the
payment of arrear rentals.
to the Plaintiff, the third Defendant has been sued in his
representative and official capacity as one of the Directors
shareholders of the first Defendant. He has not just been sued as a
witness to the Sublease Agreement, but as a party representing
Defendant and as such could be held liable in conducting himself
negligently and acting in breach of his duty. Third Defendant
considered liable in terms of Companies Act of 1967, Sections 27 (1)
29, 34 (2), 141, 168, 172, 272 and 275.
declaration, the role played by the third Defendant was where he
the first Defendant when the Sub-lease Agreement was entered into
between the Plaintiff and the first Defendant. It
has not been stated
whether or not the company was a private one or what, in order to
bring it under the given provisions of the
Companies Act. It has also
not been stated whether the company was in the process of winding up
or under judicial management for
provisions of sections 168, 172, 272
and 275 of the Act to apply.
being a legal person can contract in the same way as an individual.
But, however, unlike an individual, it cannot contract
in person but
must do so through a person acting under its authority. From the
sublease agreement and in terms of the resolution
that was taken by
the board of directors of the first Defendant, the third Defendant
was authorized to represent the first Defendant.
Tuckers Land and
Development Corporation v Perpellief 1978 (2) S.A. 12 at 14 (f).
Defendant has been described as a company with limited liability and
as such a legal person with its corporate identity,
distinct from the directors or shareholders and its own property
rights and interests to which alone it is entitled.
If the company is
in the wrong, the company itself has to be sued. This principle has
been cited with approval by Hoexter JA in
Francis George Hill Family
Trust v South African Reserve Bank & Others 1992 (3) SA 91 (A) at
the third Defendant was acting as representative of first Defendant
as director, he could therefore not be personally held
liable but the
company as he was authorized so to act.
also been the Plaintiffs case that the third Defendant's exception
did not give plaintiff notice to amend the summons to
against the third Defendant or amend such summons in terms of Rule
29(3)(a) & (b) of the High Court Rules.
On the reading of the
provisions of that section, I learn that the word used is "may"
thus giving a person a discretion.
giving of a notice to amend is not mandatory as the word may has been
used. As a result, the exception is allowed and the Plaintiffs
particulars of claim as against the third Defendant are set aside.
The Plaintiff is given leave, if so advised, to file amended
particulars of claim within 30 days from date of delivery of this
Plaintiff: Mr Mabulu
Defendants: Mr P. J. Loubser
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