CIV/APN/49/89

IN THE HIGH COURT OF LESOTHO
In the
matter between:-

LERIBE TAXIS ASSOCIATION Applicant

and

ROAD TRANSPORT BOARD 1st Respondent

MINISTER OF TRANSPORT COMMUNICATIONS 2nd
Respondent
THE ATTORNEY GENERAL 3rd Respondent

RULING

ON A POINT OF LAW RAISED IN LIMINE.

Delivered by the Honourable Mr. Justice J.L. Kheola
on
the 19th day of March, 1990

This is an application for review of the proceedings of
the first respondent in the matter between the first respondent and
the applicant's
members. The applicant seeks an order in the
following terms:-

1. Directing and calling upon the Respondents to show
cause (if any) why the Proceedings and decision of the First
Respondent as
confirmed by second Respondent in the matter between
the First Respondent and the Applicant's members dated the 31st day
of December,
1988 shall not be reviewed, corrected and set aside;

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2. 
   Directing and calling upon the First
   Respondent to
   despatch within 3 days
   of the receipt of the Notice to
   the
   Registrar of this Honourable Court,
   the record of
   proceedings and the
   decision aforesaid, and to notify
   the
   Applicant in writing that it has done
   so;

   
   

3. 
   Declaring that the First Respondent
   flouted the audi
   alteram partem Rule
   in not according the Applicant a
   hearing
   before it made the decision of
   the 31st day of December, 1988.

   
   

4. 
   Declaring that the decision aforesaid
   is
   unreasonable in the circumstances.

   
   

5. 
   Declaring that the First Respondent
   failed to
   exercise its discretion as
   required by Law in making the
   decision
   aforesaid.

   
   

6. 
   Directing the First Respondent to consider
   and apply
   its mind to applications for "C
   permits" by individual
   Applicant's members
   as required by Law.

   
   

7. 
   Directing First Respondent to afford the
   Applicant's
   members a hearing upon or
   before making a determination on
   their
   applications for "C permits".

   
   

8. 
   Dispensing with the forms and service
   provided for
   in the Rules of Court,
   regard being had to the urgency of
   the
   matter;

   
   

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9. In the event of their opposition, the Respondents
be directed to pay costs hereof.

10. Such further and or alternative relief.

The opposing affidavit on behalf of all the respondents
was made and signed by one Lerato Mahata who alleges that she is
employed
in the Ministry of Transport and Communications, in its
Department of Transport and Traffic whereat she also serves, amongst
other
duties, as the Secretary to the first respondent. She concludes
her paragraph 1 by saying she is therefore entitled to file this
affidavit.

Mr. Phafane, counsel for the applicant, has
submitted that the person who has filed the opposing affidavit has no
authority to file it and/or
to represent the respondents. She has not
even alleged to represent the respondents. Nowhere does she even
claim to have been duly
authorised to make the affidavit on behalf of
the respondents.

It is trite law that where a person institutes civil
proceeding on behalf of a company, some evidence should be placed
before the
Court to show that the applicant has duly resolved to
institute the proceedings and that the proceedings are instituted at
its instance.
(See Mall (Cape) (Pty) Ltd v. Merino Ko-operasie
Bpk., 1957 (2) S.A. 347 (C.P.D.).

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The best evidence that the proceedings have been
properly authorised would be provided by an affidavit made by an
official of the
company annexing a copy of the resolution. But as it
was pointed out in Mall's case (supra) that form of
proof is not necessary in every case. Sometimes the allegation by the
deponent that he is duly authorised to
make the affidavit is enough
proof of authority.

It seems to me that the above principles must apply
where an official of a company decides to oppose an application
brought against
his company. There must be some evidence that the
company has resolved to oppose the application.

In the present case there is no evidence that Lerato
Mahata was authorised by the respondents to oppose this matter and if
the respondents
were a company I would have no alternative but to
reject her affidavit. The difficulty I have is that the first
respondent does not
seem to be an artificial person because sections
3, 4, 6 and 7 of Road Transport Act 1981 which establish it, and
specify its duties
and functions do not say it shall be a body
corporate with limited liability, and perpetual succession and many
other things which
are the normal qualities of a body corporate, such
as being capable of suing and being sued; owning property. (Compare
section 2
(2) of The Lesotho Sports Council Order 1970; section 3 (2)
of Lesotho National Development Corpora­tion Act No.20 of 1967;
section
3 (2) of The Lesotho Bank Order 1971). The first respondent
is just a statutory board established

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for the purpose of implementing certain provisions of
the Road Transport Order 1981. It is a board of the Ministry of
Transport and
Communications and cannot legally be regarded as an
independent artificial person separate from the Ministry for
which it was created.

It follows that the present proceedings are against the
Government of Lesotho represented by the second respondent and
the third respondent. In the proceedings against the Government
no power of attorney is necessary because The Government Proceedings
and Contracts Act 1965 provides that in such proceedings the
Attorney-General shall be made the nominal defendant or respondent..
The Government has its lawyers at the Law Office in Maseru who art
entitled to represent the Attorney General in all litigation against
or by Government. In the present case the Notice of Intention to
Oppose is signed by Mr. A.M. Lenono for the Attorney General.

In Mall (Cape) (Pty) Ltd. v. Merino Ko-operasie Bpk.
1957 (2) S.A. 347 (C.P.D.) at p. 351 Watermeyer, J. said:

"An attorney is an officer of the Court and it must
be presumed in the absence of any evidence to the contrary that he
has satisfied
himself that he has authority from the applicant to
commence proceedings before doing so. By appen­ding his signature
to the
notice of motion he in effect certifies that he has authority
to act on behalf of the applicant. I say that the Court will presume
the attorney's authority in the absence of evidence to the contrary,
for it is of course always open to a respondent, if he has reason
to
believe that the proceedings have not been properly authorised by the
applicant, to file an opposing affidavit setting out the
grounds of
his belief, in which case a triable issue of fact arises."

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Mr. Lenono is an officer of this Court and by virtue of
his appointment may act as a legal representative of the Attorney
General
in all litigation against Government. The Court must presume
that by appending his signature to the Notice of Intention to Oppose
he in effect certifies that he has authority to act on behalf of the
respondents. The affidavit of Lerato Mahata cannot be challenged
on
any ground because, unlike a compnay, the Government does not have to
pass any resolution to oppose any proceedings against it.
It would be
very inconvenient that whenever the Government is sued the Cabinet
must sit and pass a resolution.

The Notice of Intention to Oppose states that the
affidavit of Lerato Mahata attached shall be used to support the
opposition of the
application. What more authority does the applicant
want when the document which founds the oppositon sets out whose
affidavit is
going to be used? There is absolutely no doubt that the
present proceedings are being opposed by the Government of Lesotho
and that
the applicant must rest assured . that in the event of costs
being awarded in its favour, the Government of Lesotho will have to
pay them.

In the result the point raised in limine is dismissed
with costs.

J.L. KHEOLA JUDGE

19th March, 1990.

For Applicant - Mr. Phafane
For Respondents - Mr.
Lenono.