IN
THE HIGH COURT OF SWAZILAND
CIVIL
CASE NO. 1164/99
In
the matter between:
JOHANNES
HLATSHWAYO 1st APPLICANT
CECIL
JOHN LITTLER N.O. 2nd APPLICANT
And
SWAZILAND
DEVELOPMENT AND
SAVINGS
BANK RESPONDENT
IN
RE:
SWAZILAND
DEVELOPMENT AND
SAVINGS
BANK PLAINTIFF
And
JOHANNES
HLATSHWAYO N.O. DEFENDANT
CORAM
K.P. NKAMBULE – J
FOR
APPLICANT MR. S. MAGONGO
FOR
RESPONDENT MR. LITTLER
RULING
10/9/04
The
applicant has brought an application under a certificate of urgency
in the following terms
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Waiving
the usual requirements of the rules of court regarding Notice and
Service of Motion proceedings in view of the urgency of the matter.
Pending
flnalisation of this application the first and second respondent be
restrained and/or interdicted from transferring Lot No. 350 situated
at Extension Three, Zakhele Township from the name of my late wife
Thandi Judith Hlatshwayo born Nsingwane into the name of Sifiso
Maziya the Fourth respondent herein.
The
Third respondent be directed and/or compelled to give a full or
detailed account of the Liquidation and Distribution Account he
prepared in respect of Estate late Thandi Judith Hlatshwayo (born
Nsingwane) under Estate Late file No. 42/87.
Reversing
and/or declaring null and void the Notice of Sale which took place
on Wednesday the 14th January 2004 outside Manzini Magistrate Court
at 12.00 p.m. which was conducted by the Fifth respondent.
The
judgement by default granted by the above honourable court in favour
of the First respondent on the 20th September 2003 be set aside or
rescinded.
Joining
applicant as party to the main action and thereby granting his leave
to defend the main action.
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7.
Rule 2,3,4,5 and 6 operate as an interim relief with immediate effect
pending finalisation of this application.
8.
A Rule nisi do hereby issue calling upon both respondents to show
cause if any, on a date to be determined by the court, why,
8.
(a) Rules 2. 3, 4, 5 and 6 should not be made final;
8.
(b) They should not be ordered to pay costs of this Application.
There
is filed of record a launching affidavit deposed to by the applicant
Johannes Thamsanqa Hlatshwayo.
In
their opposing affidavit the respondents have raised the following
preliminary points of law; that,
1.
The applicant has failed to cite and/or serve the Attorney General
having cited the Registrar of Deeds; in his capacity as the
representative of all government offices.
2.
The applicant has failed to cite and/or serve the registrar of the
High Court in his capacity as the Sheriff of Swaziland him being
necessary during the transfer of the said property.
3.
The applicant cannot rely on urgency for the following reasons;
3.1.
The order that he seeks to rescind was obtained on the 20th September
2002 and applicant was perfectly aware
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of
the said order against him as he was represented by an attorney at
that time.
3.2,
A warrant of execution of movable goods was served on, him by the
deputy sheriff William Kelly on two occasions in his capacity as the
occupant of the house but he did not bother to approach this court
for relief.
3.3.
It was only after the property had been sold to an innocent buyer
that he decided to approach the court.
4.
The applicant has not complied with all the requirements of an
interdict.
In
its replying affidavit the applicant has filed preliminary points and
these are the points of law which were placed before court for
determination. They are as follows:
1.
The Deponent Babhekile Gugu Dlamini, who is an attorney of the High
Court of Swaziland has not attempted to aver that she is duly
authorised to depose to the affidavit on behalf of the first, fourth
and fifth respondents; nor has she attached any document or
resolution of the board of directors authorising her to attest and
depose to the opposing affidavit especially on behalf of the first
respondent which is a corporate body.
2.
Similarly Japp Motsa who deposed to the confirmatory affidavit has
not annexed.any resolution authorising him to do so on behalf of the
first respondent.
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The
bone of contention emanates from the statement by Babhekile Gugu
Dlamini that "I am well versed with the facts of the matter".
The question which remains unanswered is how did she come to acquire
such facts? Was it through the instructions she received from the
respondents or through her handling of the matter.
In
this case we are dealing with a respondent who is an artificial
person. In such a case there is judicial precedent for holding that
objection may be taken if there is nothing before the court to show
that the applicant has duly authorised the institution of Notice of
Motion proceedings. See the case of ROYAL WARCESTOR CORCEL V KESLER
STORES 1927 C.P.D. 143.
Unlike
an individual, an artificial person can only function through its
agents and it can only take its decisions by the passing of a
resolution in the manner provided by its constitution. An attorney
instructed to commence notice of motion proceedings by, say, the
secretary of a company would not necessarily know whether the company
had resolved to do so, nor whether the necessary formalities had been
complied with in regard to the passing of a resolution. It is clear
therefore 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 court or that proceedings which pinpoint to be brought in its
name have in fact been authorised by it.
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. I however, do not consider such
proof to be necessary in every case. Each case must be considered on
its merit. The court must decide whether enough has been placed
before it
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to
warrant the conclusion that it is the company which is litigating and
not some unauthorised person on its behalf.
Returning
now to paragraph 2.1 of the applicant's replying affidavit, he states
that:
"The
deponent has not attempted to aver that she is duly authorised to
depose to the affidavit..."
By
this the applicant means that Babhekile Gugu Dlamini has not shown or
provided the basis of her authority to depose to the affidavit.
The
question for determination is whether an ordinary witness needs
authority to give evidence on behalf of a litigant. It is my opinion
that no authority from the company litigant is needed for a deponent
to depose to an affidavit. If this was so, it would be very absurd
because it would mean that each time you bring a witness in court to
give evidence on behalf of a company such witness needed to produce
authority allowing him to give such evidence.
Likewise
Japp Motsa need not produce any proof that he is authorised to depose
to the affidavit. He is the witness for the respondent he does not
need authority from the respondent to depose to an affidavit.
As
already mentioned, it is the attorney of record who needs a power of
attorney to act on behalf of a company. I must however, mention that
in this instant case Miss Babhekile Gugu Dlamini has been acting for
the respondent since the beginning of this matter. I have no doubt
that in this particular matter it is the respondent company which is
litigating and that Babhekile Gugu Dlamini has been duly instructed
by the company.
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For
the foregoing reasons and conclusions the points in limine fail.
K.P.
NKAMBULE
JUDGE
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