Proof of authority to represent party

CIV. CASE NO. 203/99

In the matter between

DUMISA SUGAR CORPORATION (PTY) LTD 1ST APPLICANT

MARSHALL CAMPBELL (PTY) LTD 2ND APPLICANT

TWIN RIDGE ESTATES (PTY) LTD 3RD APPLICANT

MATLOCK ESTATES (PTY) LTD 4TH APPLICANT

BROADLANDS (PTY) LTD 5TH APPLICANT

B.H.K. (PTY) LTD 6TH APPLICANT

DOUBLE DIAMOND SUGAR CORPORATION

(PTY) LTD 7TH APPLICANT

PICARDIE ESTATES 8TH APPLICANT

DUMISA ESTATES (PTY) LTD 9TH APPLICANT

THE PROPERTY COMPANY (PTY) LTD 10TH APPLICANT

MACKAY INVESTMENTS (PTY) LTD 11TH APPLICANT

DUMISA DLAMINI 12TH APPLICANT

And

SWAZILAND ELECTRICITY BOARD RESPONDENT

Coram S.B. MAPHALALA – J

For Applicants MR. DUTOIT SC

For Respondent MR. P. FLYNN

RULING

(04/02/99)

Maphalala J:

This is an urgent application brought with a certificate of urgency for an order inter alia directing the respondent forthwith to reconnect and restore the supply of electricity to the first to eleventh applicants and to the twelfth applicant under accounts Dumisa Dlamini, J.D. Glaum and Arthur Groening. This application is a sequel to another urgent application brought before the Chief Justice under case no.2407/98 which was for a substantially the same relief. An order was granted by the learned Chief Justice in that case dated the 13th day of October 1998. When the matter came before me yesterday counsel for the respondent raised a point in limine from the bar. The point raised is a simply one that the applicant has not attached a company resolution authorize Dumisa Dlamini to represent the applicants or to institute these proceedings.

Mr. Flynn directed the court’s attention to a number of paragraphs in the applicants’ founding affidavit to prove this assertion. He also cited the local case of Fairdeal Furnishers (Pty) Ltd vs Standard Bank of Swaziland an others 1979 – 1981 S.L.R. 60 at page 63 where Cohen ACJ (as he then was) pronounced that “even as Managing Director he would not have this authority unless he clearly delegated to possess it or been authorized by a resolution of Director. The learned judge in that case cited with approval the case of Downson and Dobson Ltd vs Evans and Kerns (Pty) Ltd 1973 (4) S.A. 136 (E). Mr. Flynn also cited the case of Griffiths vs Englis (Pty) Ltd vs Southern Cape Blasters (Pty) Ltd 1972 (4) S.A. 249 © which is also mentioned in Herbstein & Van Winsen in The Practice of the Supreme Court of South Africa (4th ED) at page 363 in support of this proposition. He contends that this practice has been entrenched in our common law by subsequent case law that those cases, which hold otherwise, should be regarded as having been wrongly decided. Mr. Flynn urged the court to dismiss this application with costs.

On the other hand Mr. Dutoit for the applicants expressed surprise by the stance taken by Mr. Flynn in that he would have expected as a matter of courtesy to have alerted them that he was to take this point prior to the matter being called. That as it may Mr. Dutoit contended that in this division there is no necessity for this requirement and cited a case decided by the Chief Justice on this matter although he did not give the court a full citation of that case. But I think he was referring to the case of M & F Marketing (Pty) Ltd vs Intercon Construction (Pty) Ltd Civil Case No. 3493/97 where the learned Chief Justice commented thus:

“Before proceeding to deal with this application itself I again notice that the opening paragraph of the finding affidavit the deponent claims that he is duly authorized to make this affidavit on behalf of the applicant. I have repeatedly pointed out that no one requires authority to make an affidavit. The making of an affidavit is a personal action by the deponent in the same sense as the giving of oral evidence in the witness box. As far as the applicants is concerned the authority of its attorney to represent it has not been charged”

This is the crisp question of law for determination. I have considered the arguments advanced from both sides and it appears to me that Mr. Dutoit is correct in his assertion there seem to be a bevy of authorities in this division supporting his view. In particular the case of National Housing Board Tenants Association vs National Housing Board, Human Authority, Attorney-General Civil Case No. 977/92 where Hull CJ cited with approval the case of Mall (Cape) (Pty) Ltd vs Merino Ko-operasie BPK 1957 (2) S.A. 347 to the proposition that:

“As a matter of law the annexing of a resolution is not essential”.

Further in the head notes of Mall (supra) where it was held that: “though the best evidence that the proceedings have been property authorized would be provided by an affidavit made by an official of the company annexing a copy of the resolution, such proof is not necessary in every case. Each case must be considered on its own merits and the court may decide whether enough has been before it to warrant the conclusion that it is the applicant which is litigating and not some unauthorized person on its behalf”.

Further in a more recent decision of the Appellant Division in the case of Tattersall and another vs Nedcor Bank Ltd 1995 (3) S.A. 222 it was also held that a copy of resolution authorizing bringing of application not always necessary neither does Section 242 (4) of the Companies Act 61 of 1973 (S.A.) provide exclusive method of proving such resolution. Authority can be proved by aliunde evidence.

In the case in casu I am satisfied that paragraph 11 and 38 of the founding affidavit is adequate to prove such authority. Further, as I have already pointed out earlier in this judgement that this case is a sequel to case no. 2407/98 where the same deponent deposed on the founding affidavit in that case which was substantially the same as the present one and the issue of lack of authority was not raised. It is clear here that Dumisa Dlamini represents the applicants it would have been a different matter if the authority of his attorney to represent the applicant was being challenged. I agree entirely with the dicta in the cases of M & F Marketing (Pty) Ltd (supra) and that of National Housing Tenant’s Association and also of being alive to the principle of stare decisis. For these reasons I find that the point in limine is without substance and tends to be dilatory in nature and thus dismiss it forthwith.

In the absence of any substantive opposition to the grant of the interim order being sought by the applicants I am enjoined in law to grant it forthwith and let the parties join issue with a view to fully canvass the substantive issues in the dispute.

S.B. MAPHALALA

JUDGE

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