CIV/APN/138/87

IN THE
HIGH COURT OF LESOTHO

In the
Application :

MAJARA
MAKAMA Applicant

SISTER
GISELE FOUCREAULT 1st Respondent

REITUMETSE
CHURCH PROJECT 2nd Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice M.L. Lehohla on the 5th day of May,
1987.

RULING ON
POINTS RAISED IN LIMINE

On 21st
April 1987, applicant in the above matter approached Court ex parte.
My brother Sir Peter Allen J. let a Rule Nisi issue
returnable on
27th April 1987 but refused to make an interim interdict.

On 24th
April 1987 Respondent filed simulteneously the following sets of
papers each of which bears proof of service on applicant's
attorney:

1. Notice
   of intention to oppose to which are attached 1st Respondent's
   opposing affidavit and annexure "A" the constitution
   of
   2nd Respondent.

   
   

2. Notice
   of Motion in terms of Rule 8(16) otherwise better referred to from
   the point of view of its functional purpose as notice
   of application
   for joinder of the 2nd Respondent.

   
   

3. Counter
   application to which are attached affidavits of Ntai Ramakau and
   Mojansi Monkhe

   
   

2

and a series of Annexures marked "A" (again) through "T"
being invoices issued from Frasers Manufacturing Buy
and Build.

I was
informed from the bar that even before the filing of the counter
application referred to in (3) above the application for
joinder or
2nd Respondent was granted unopposed.

It is
common cause that what is tabled before Court in these proceedings
are the main application and the counter application. A
prayer for
their consolidation was granted.

The main
application consists of a Notice of Motion wherein applicant net out
his prayers for a Rule Nisi calling upon 1st Respondent
to show cause
why:

1. The
   respondent shall not be restrained from entering applicant's
   premises and removing building material kept and stored at

   applicant's premises, pending a civil action to be instituted in the
   High Court.

   
   

2. The
   respondent shall not be ordered to return the building material she
   removed without applicant's consent to applicant's premises.

   
   

3. The
   respondent shall not be ordered in the alternative to (a) and (b)
   hereof, to pay applicant the sum of M21,000 rental owing

   
   

4. The
   respondent shall not be ordered to pay costs hereof.

   
   

5. The
   applicant shall not be given such further and/or alternative relief

   
   

6. That
   prayer 1(a) operate as an interim interdict with immediate effect.

   
   

As
pointed above although the rule nisi did issue prayer 2 was however
refused. If I may add my word to it, this was properly so.

The
counter application due to have been heard on

3

27th
April 1987 pleaded for an order :-

1. Dismissing
   the applicant's application in toto.

   
   

2. Restraining
   the applicant from preventing the 2nd respondent from removing all
   its property from applicant's site.

   
   

3. Directing
   the applicat to pay the costs of this application on an attorney and
   client scale

   
   

4. Further
   and/or alternative relief.

   
   

It is
against the above background that on 5th May 1987 Mr Nthethe for the
applicant in the main application or respondent in the
counter -
application (hereinafter, for the sake of simplicity, referred to as
applicant) raised a point in limine against the
respondents in the
main application or applicants in the counter-application
(hereinafter referred to as 1st and 2nd respondents
as the case may
be).

As the
basis of his submissions in support of the points raised in limine
Mr. Nthethe pointed, out that 1st Respondent Sister Gisele
filed
opposing affidavit to the main application. In para. 17 thereof she
deposes that the some affidavit is in opposition to the
main
application and in support of the counter - application lodged by 2nd
Respondent. Reitumetse Church Project.

In para
10 of applicant's replying affidavit applicant deposes as follows :-
"I notice that there is no authority from the
alleged Project;
in the result this affidavit cannot be admissible for the Counter
application as alleged."

In Para 2
of applicant's 1st opposing affidavit the applicant deposes and makes
it plain to 2nd respondent that:-

At the
hearing, I shall apply to Court to expunge this affidavit on grounds
of lack of necessary Resolution."

4

Applicant
adopted this attitude in response to Mojansi. Monkhe's affidavit and
clearly held in question the deponent's locus standi.

Mr.
Nthethe contends that likewise 1st Respondent does not have the
necessary authority from 2nd Respondent in as much as 2nd Respondent

is an artificial person in respect of whom a resolution is a sine qua
non at litigation.

Referring
to the constitution of 2nd Respondent marked annexure "A"
applicant's counsel submitted that by agreeing to
be joined as a
co-respondent with the 1st respondent it assumed power to sue and be
sued which is one of the characteristics of
artificial persons

It was
accordingly submitted on behalf of applicant that in the absence of
express authority 1st respondent could not depose to
an affidavit on
behnlf of 2nd Respondent.

Indeed
were it to be assumed that through some mishap the express authority
was left out some reference to it by 1st Respondent
in her affidavit
would serve as a legitimate ground for concluding that 2nd
respondent's contention that it had authorised the
1st respondent to
act on its behalf would not be entirely baseless. Needless to say
that no resolution to that effect or at all
has been annexed.

Submitting
that it is trite that if one deposes and brings action on behalf of
on artificial person he or she must do so by production
of proof of a
"properly worded resolution. Mr. Nthethe referred me to R.T.
Morrison (Pty) Ltd vs Belle 206 where at page 209
Mofokeng J. said :-

"There is no resolution of the company that it duly resolved to
institute proceedings against the respondent nor consequently
that
those proceedings

5

were instituted at its instance."

I indeed
accept that the proposition is trite for as set out in Mall (Cape)
(Pty) Ltd vs Merino Ko operasie Bpk 1957(2) S.A at 351
Watermeyer J.
said:-

"There
is a considerable amount of authority for the proposition that, where
a company commences proceedings by way of petition,
it must appear
that the person who makes the petition on behalf of the company is
duly authorised by the company to do so.
..............................
This seems to me to be a salutary rule
and one which should apply also to notice of motion proceedings where
the applicant is an
artificial person. In such cases 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.

While it
is a mere truism to urge that in a counter -application this
statement of the law should be observed, I think it is necessary
to
emphasise that the proposition is of equal force where any person
deposes to act on behalf of an artificial person who is respondent
in
such proceedings.

Mr.Nthethe
bringing to Court's attention the sympathetic attitude adopted by
Courts in accepting pleas couched in the phrase "I
have been
duly authorised to bring these proceedings which is a bare allegation
was quick to submit that in these proceedings even
this bare
allegation is locking and laid stress on the fact that when an
artificial

person
commences proceedings .............................. it must appear
that the person who makes the petition or affidavit on
behalf of the
artificial person is duly authorised to do so.

It was
prayed that the counter application be dismissed with costs to be
borne by deponents themselves.

In
response Miss Mofolo for respondents referred me to lot respondent's
opposing affidavit at para 2 which reads:

6

"I am the Liaison officer of an Association known as Reitumetse
Church Project, herein-after referred to as the Association
presently
being registered, which is a charitable non-profit making
organisation."

She
further referred me to affidavits of Ramakau and Monkhe ad para 2
respectively the upshot of which is that the deponents are
the
General Director and Treasurer respectively of the committee of 2nd
respondent. She further referred me to Annexure "A",

Articles 4.2, 4.8 and 5.2 thereof setting out functions of the
Liaison officer under Article 4 and those of the Executive Committee

under Article 5.

Miss
Mpfolo accordingly submitted that sweeping as these powers appear to
be in the constitution they nonetheless indicate that
the deponents
had authority to bring the proceedings before this Court. She
attributed the absence of a proper resolution to the
haste with which
papers were drawn. To illustrate her point she submitted that service
on 1st Respondent was effected on 22nd April,
1987 requiring cause to
be shown on 27th April 1987. Thus she was left with only 2 days
within which to file opposing affidavit
because the other days were
non-dies i.e. Sunday and Saturday. Further that her client was served
only on Wednesday preceding the
Monday which was a return day. She
further stated that 1st respondent was informed of the need to file
the resolution and that
her attorneys duly prepared it and that it is
ready and at hand, however failure to file it of record she,
submitted, was the responsibility
of her office.

Accordingly
she begged leave to hand in the resolution and submitted that this
would in no way prejudice applicant on the one hand
while 2nd
respondent would suffer inculculable harm on the other hand if it
cannot bo allowed the indulgence

to file
the resolution.

Finally
she submitted that the point in limine challenges the authority of
deponents but urged that such authority should be accepted
even at
this late stage since the matter does not go to the merits of
applicant's case.

In reply
Mr. Nthethe opposed the handing in of the resolution from the bar and
pointed out that compared with the bulk of papers
filed by
respondents the filing of the resolution if indeed it was ready for
filing at the time would have been a very light task
since generally
a resolution of the type required in the present proceedings would
consist of. less than half a page of standard
papers used in court.

He
submitted that it seems there was ample time within which to rectify
this irregularity. He pointed out that respondent's attorney
was
served with the opposing affidavit on 29th April but even as of 6th
May she had not filed the resolution notwithstanding the
fact that
under the Rules she is entitled to file replying affidavits to the
opposing affidavit filed in the counter application.
Even at this
state respondents should have set out in such reply reasons for
failure to file their resolution while annexing it
at the same time;
but they didn't.

It was
also urged on me not to lose sight of the fact that it was made clear
in the opposing affidavit that the 1st respondent's
locus standi was
held in question as early as 29th April 1987. Accordingly Mr. Nthethe
pointed out that the application on behalf
of respondents to submit
the resolution is an afterthought and therefore should not be
accepted. Vehemently contending that the
argument is invalid

8

that
handing over the resolution is not prejudicial he pointed out that
throughout there papers applicant has been saying that he
has had no
dealings with 2nd respondent. Thus bringing in 2nd respondent into
the arena is going to prejudice the applicant, it
was submitted.

Mr.
Nthethe submitted that it would create a dangerous precedent to allow
respondents' attorney to hand in this resolution despite
ample
opportunity that she had to do so. Reiterating his earlier submission
on the point he invited the court to assume for the
sake of argument
that authority had initially been left out by misadvertence; and
posed the question that "couldn't in such
circumstances there
have been an averment, in the affidavit that I depose to this
affidavit in my capacity as an employee of 2nd
respondent in terms of
whose resolution dated such and such I have been authorised to depose
as follows ................ "

I have
read the papers, heard arguments and come to the conclusion that
articles referred to in Annexure "A" cannot serve
as a
substitute for a properly worded resolution. In Morrison supra where
an attempt to read into the power of attorney the meaning
that a
resolution ordinarily carries was rejected by Mofokeng J. in the
following terms :-

"It is quite obvious that this document is not the document
envisaged by my brother Rooney J. This document referred to above
is
of a general character."

In
CIV/APN/8/87 L.E.C. VS MOROJELE & OTHERS (unreported) an argument
by applicants' attorney that due to shortage of time provided
by the
rules in the event that respondents in an ex parte application should
anticipate the rule nisi failed to file their relevant
papers was
rejected with costs.

9

I have no
doubt in holding the view that on arguments advanced it appears that
the filing of the resolution by 1st respondent on
behalf of 2nd
respondent is on afterthought to which she was awakened by
applicant's averments in his opposing affidavits to respondents'

counter application

The rules
of Court should be strictly adhered to. See C. of A. (CIV) No. 16 of
1984 Kutloano Building Construction vs Matsoso &
2 Others
(unreported) at 7.

I
accordingly uphold with costs the application in limine. For clarity
I should mention that costs ere awarded against deponents
themselves.

I however
am not disposed to reject in toto the counter application.
Consequently while holding that 2nd respondent is not properly
before
court as 1st respondent has no authority to represent it I give an
order giving respondents an opportunity to correct their
papers
within 21 days falling which the rule in the main application should
be confirmed in terms of prayers 1(a) (b) (c) and (c)
in the notice
of motion and that prayed for in the counter application discharged.

The costs
incurred by applicant/respondent in treating of the counter
application are awarded to him as well.

ACTING
JUDGE.

8th May,
1987.

For the
Applicant : Mr Nthethe

For the
Respondents: Miss Mofolo