CIV/T/420/85

J. C.
DAMBHA HOLDINGS(PTY) LTD Plaintiff

VS

M & C
CONSTRUCTION 1st Defendant

IAN SCOTT
MILLER 2nd Defendant

MASERU
TYRE COMPANY 3rd Defendant

RULING

Delivered
by the Hon. Acting Mr. Justice M. L. Lehohla on the 22nd day of
April, 1987

In terms
of a notice of set down filed of record on 1.1th March 1987 and
without reference to any of the above defendants plaintiff,
through
his attorneys to wit CD. Molapo on whose behalf Mr. Addy
(representing plaintiff before Court) signed the notice, set this

matter down for hearing on 16th March 1987 for default judgment
against 2nd defendant only. Needless to state no specific or
approximate
time for the hearing has been reflected in the notice of
set down.

When this
matter was called Mr. Addy expressed surprise that it was on the roll
at all seeing that there were ample documents in
the file showing
that it is a highly contested matter that should ordinarily have not
been set down for hearing on a motion day.

However
after a momentary reflection he. realised that the matter was
properly set down for default judgment against 2nd defendant
only and
accordingly applied for judgment as prayed; whereupon Mr.
Redelinghuys raised an objection stating among other things
that he
was representing the 2nd defendant and that as far as he could see
2nd defendant had not been served with any summons.

2

I am
satisfied that 2nd defendant was served with summons. The deputy
sheriff's return of service dated 8th July 1985 is sufficient
proof
that service of both summons and plaintiff's declaration was effected
on all defendants on 5th July 1985.

Against
Mr. Addy's protestations that Mr. Redelinghuys had no right of
audience in this matter as the latter did not have any power
of
attorney was a rejoinder by him that Mr. Addy had none either.

The only
power of attorney filed for plaintiff in this action is drawn in
favour of Mr. CD. Molapo an attorney of this Court.

Mr. Addy
responded to this state of affairs by pointing out that he was
serving as a substitute for Mr. C. D. Molapo in terms of
the power of
attorney which clothed a lawful attorney acting on behalf of
plaintiff with power of substitution.

However
at page 123 of the Civil Practice of the Superior Courts of South
Africa by Hebstein and Van Winsen 2nd Edition, under the,
title
"Substitution of Attorney" the learned authors say:-

" Where the warrant is made in favour of one attorney with power
of substitution and another attorney is substituted, a power
of
attorney by the former in favour of the latter should be filed in
addition to the main warrant. It is the duty of the new attorney
to
see that his name is placed on the record in lieu of the other
attorney." (My underlinings)

See
Johannesburg Agency Ltd vs Mamabolo and others 1910 T.P.D. 610 and
C.F.: Schewe vs Schewe 1909 T.H. 175

3

Against
the background set out above it appears that what is manifested in
the respective counsel's arguments is a typical example
of the pot
calling the kettle black.

I have
had occasion to look at the High Commissioner's Notice 8 of 1941 on
Rules of the High Court. Rule 9(1) reads:-

" No summons and no process under Rule 10 shall be issued by the
Registrar at the instance of any attorney on behalf of a
plaintiff
unless there has been filed with the Registrar a power of attorney to
sue signed by the plaintiff; nor shall the Registrar
at the instance
of any attorney cause appearance to be entered on behalf of a
defendant unless there has been filed with him a
power of attorney to
defend signed by the defendant."

Second
defendant has not signed any power of attorney authorising Mr.
Redelinghuys to appear for him.

Needless
to relate the High Commissioner's Notice supra along with Rule 9 (1)
has been repealed in terms of Legal Notice No.9 of
1980 Section 2
reading "Rules of the High Court prescribed by High
Commissioner's Notice No.8 of 1941 are repealed upon coming
into
effect of this notice." Incredible to narrate it appears that in
the new rules of 1980 or even in the High Court (Amendment)
Rules
1982 nothing has substituted Rules 9 of Notice 8 of 1941 supra.
Consequently an untenable lacuna has resulted in the High
Court rules
as far as powers of attorney are concerned.

Suffice
it then to stake that both counsel are in a similar position and are
in breach of no rule requiring any

4

powers of
attorney. The effect of this sad state of affairs is that the very
evil that Rule 9(1) supra was intended to cure has
been given a
blessing by the introduction of Section 2 of Legal Notice No.9 of
1980 supra. In the result any attorney standing
up from the bar
without any document to support him can declare that he represents
either of the parties and be granted right of
audience. This is a
very anomalous situation and I would sincerely urge the Chief Justice
in exercise of powers conferred on him
by Section 16 of the High
Court Act 1978 to speedily bring back into operation Rule 9(1)(2)(3)
of the High Commissioner's Notice
8 of 1941 together with all such
rules as have been affected by this misbegotten hiatus existing in
the Lesotho High Court rules.
Meantime as hitherto seems to have been
the practice, it la to be hoped that common sense will continue to
prevail despite this
unwholesome absence of the rule requiring the
filing of powers of attorney by respective attorneys to civil law
suits.

Seeing
that the rules offer no solution to the problem presented before me
it appears therefore resort has to be had to the common
law. As
pointed out earlier on the question of right of audience plaintiff's
and 2nd defendant's attorneys are at par. In Miller
vs Minister of
Pensions 1947 ALL E.R. at 374 Lord Denning said:

" If at the end of the case the evidence turns the scale
definitely one way or the other, the tribunal must decide
accordingly,
but if the evidence is so evenly balanced that the
tribunal is unable to come to a determinate conclusion one way or the
other,
then the man must be given the benefit of doubt. This means
that the case must be decided in favour of the

5

man
unless the evidence against him reaches the same degree of cogency as
is required to discharge a burden in a civil case. That
degree is
well settled. It must carry a reasonable degree of probability, but
not so high as is required in a criminal case. If
the evidence is
such that the tribunal can say: 'We think it more probable than not.'
the burden is discharged, but, if the probabilities
are equal, it is
not." (My underlinings)

Broom's
Leg. Max., 6th ed 289 points out that "No one maintains an
action out of his own wrong." This does not seem to
conflict
with the principle that where both parties are wrong the position of
defendant is given favourable preference.

4 Inst.
64 reads "Paribua sententiis reus absolvitur" meaning - :
Where the opinions are equal, a defendant is acquitted.

I cannot
in this judgment revive provisions of Rule 9 supra. Resort to Rule
59/80 on savings as to the Court's discretion cannot
avail also
because this rule appears to be applicable to situations where the
spirit of the existing law conflicts with the letter.
It does not
cover situations where the spirit and letter of the law have been
taken away by repealing that law. It reads:

" Notwithstanding anything contained in these Rules the Court
shall always have discretion, if it considers it to be in the

interests of justice, to condone any proceedings in which the
provisions of these rules are not followed." It should be clear

therefore that the discretion envisaged by the above rule is
precluded in these proceedings by

6

absence
of the law that should form the basis upon which such discretion
could be exercised.

Even if
provisions of Rule 9 supra applied it does not seem that plaintiff's
attorney would have satisfied the requirements because
his contention
is in conflict with the statement of the law outlined by Hebstein and
Van Winsen at 123 supra To throw the spanner
into the works, it
should be observed that arguments presented before me were on the
basis or mistaken belief that provisions of
Rule 9 supra are still in
force.

Consequently,
because the above matter was opposed and because 2nd defendant was,
thanks to the lacuna in the rules relating to
powers of attorney,
held to be represented by an attorney, it ought not to have been
listed in the motion roll, therefore ought
to have been struck off
the roll. It is so ordered. There will be no order as to costs.

M. L.
LEHOHLA

ACTING
JUDGE

22nd
April, 1987

For the
Plaintiff : Mr. Addy

For the
Respondents : Mr. Redelinghuys