HIGH COURT OF LESOTHO
RECOVERIES (PROPRIETARY) LTD Plaintiff
ARIEL MATSABA Defendant
by the Hon. Mrs Justice A. M. Hlajoane on 4th March, 2008.
Plaintiff in this case has described itself as a Government Company,
set up to recoup assets due to the state, with limited
duly registered as such in terms of Companies Act 1967, with its
Principal place of business at Kingsway Road, PMB
Maseru Book Centre,
P.O. Box 1252, Maseru 100, Kingdom of Lesotho.
Plaintiff has sued the Defendant for payment of monies lent and
advanced to Defendant by the then Lesotho Agricultural Development
Bank during August, 1987. The Parties had entered into a written
agreement of a loan in the amount of Ml5,500.00 (fifteen thousand
five hundred maluti) with interest at 11% per month.
alleged that the Defendant has failed to pay the monthly instalments
as at July 1998 and the balance of the loan has came
up to M44,775.99
(forty-four thousand seven hundred and seventy-five maluti and
ninety-nine lisente), which has been adjusted to
thousand and nine hundred and seventy eight maluti thirty six
Pleadings were closed and the matter was ripe for hearing. On the
date of the hearing of the matter, the Defendant's Counsel
allowed to first argue the special plea that had been raised in his
Defendant has specially pleaded that the proceedings were defective
and improper for want of authorization by the Plaintiff.
Defendant specially pleaded further that the provisions of
and 17 of the High Court Rules 1980 have not been
with in that;
No power of Attorney has been filed by the Plaintiff. The Plaintiff
has not appointed any Attorney or Advocate duly instructed
Attorney to act for it.
motivating his special plea, the Defendant showed that the
proceedings were not properly before Court as the Plaintiff has not
authorized such proceedings at all. He said since the Plaintiff is a
Company it could only act through its agents so authorized.
people who have signed the power of Attorney for the Plaintiff at
page 9 of the record, have not shown their relationship with
is as follows:-
party bringing or defending any proceedings in person may at any
time appoint an Attorney to act on his behalf, who shall
power of attorney and give notice of his name and address to all
other parties to the proceedings."
following persons are entitled to an audience in the High Court,
litigant in person
advocate, only when duly instructed by an attorney.
the provisions of paragraph (a) of subruie (1) a company or other
incorporated body or any association is not
entitled to audience in
the High Court except through a duly appointed attorney or an
advocate duly instructed by an attorney."
rightly stated by the Plaintiffs Counsel the Court here has been
called upon to decide on whether enough has been placed before
warrant the conclusion that it is in fact the Plaintiff who is
litigating and not some unauthorized person on his behalf.
(Cape) (Pty) Ltd v Marino 1957 (2) S.A 347 at 352.
in that case showed that, "in the case of an artificial person
there is more room for mistakes to occur and less
reason to presume
that it is properly before the Court or that proceedings which
purport to be brought in its name have in fact
been authorized by
The special power to sue in this case has been worded thus:
"I, the undersigned, Seymour Clyde Harley and Peter Parks do
hereby nominate constitute and appoint Seymour Clyde Harley
with power of substitution to be my true and lawful Attorney and
Agent in my name, place and stead, to appear before the above
Honourable Court or wherever else may be necessary and then and there
as my act and deed to institute action against the Defendant
order in the following terms............".
been the Defendant's case that the relationship of Seymour Clyde
Harley and Peter Parks to the Plaintiff in this case has
clearly stated. He compared the power of Attorney at page 9 of the
record with the Discovery Affidavit of Scott Antony
McAlphine at page
50 of the record where Scott Antony McAlphine has described himself
as, "I am a member of the Joint Venture
Morris, Managers of Asset Recoveries (Pty) Ltd, and I am duly
authorized to make this affidavit on behalf of
correctly pointed out by the Plaintiff the test under the
circumstances of this case should be whether it appears from the
before Court that the Plaintiff has an interest or special
reason entitling it to bring the action. This is the question of
Plaintiff has referred to "AR2" annexed to the summons
titled 'Cession of Book Debts." The document has described
N.O as liquidator of Lesotho Agricultural Development Bank (in
liquidation) of C/O KPMG, Maseru Book Centre, Kingsway,
(herein after referred to as "the Cedent") and Asset
Recoveries (Pty) Ltd of C/O The P.S. Finance, Ministry of
High Court Road, Maseru, (hereinafter referred to as "the
As can be
seen from above there is still no mention of Seymour Clyde Harley or
Peter Parks on the cession of Book Debts document.
therefore be said that the Plaintiff did indeed authorize the
institution of the proceedings before Court.
Rule 15 is about filing of power of Attorney and Rule 17 is about
appointing Attorney or Advocate duly instructed by an Attorney,
Court finds that throughout the papers filed of record there is
neither a proper document by the Plaintiff company appointing
Attorney to act on its behalf.
not been clear on the papers that Seymour Clyde Harley and Peter
Parks are the same as Harley & Morris shown as Plaintiffs
Attorneys, and their relationship with Scott Antony McAlpine. It may
have been clear from other cases but not in the present proceedings.
The Court could therefore not have taken a judicial
such a fact. Nothing on the papers to show that Seymour Clyde Harley
and Peter Parks have been authorized by the Plaintiff
anybody or sign on Plaintiffs behalf.
reasons stated above the special pleas are upheld and the proceedings
dismissed with costs.
Plaintiff: Mr Malebanye
Defendant: Mr Mohlakeng
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