(See also WOLPERT V UITZIGT PROPERTIES (PTY) LTD & OTHERS 1961(2) SA 257 (WLD) at 262H).
The authority of a director to represent the company can therefore be implied when, on a balance of probabilities it is the reasonable
inference to be drawn from the conduct of the parties (see DE VILLIERS AND MACINTOSH ON AGENCY 2ND EDITION page 38, Article 9). The conduct of the parties must be regarded in the light of any special relationship existing between them for
where there is such a relationship the inference of authority will be more easily drawn. (See DE VILLIERS & MACINTOSH loc. cit)
In regard to the resolutions in this case no minutes or other written record of the proceedings of the directors’ meetings
were produced at the trial and no evidence was given that any such minutes were entered in any minute book. Mrs. Maziya however stated
that minutes of directors meetings were kept and that these were stored in a file at the premises of Afri-craft where all the books
of respondent were kept. Those files, together with all the rest of respondent’s books, were, however, she said, destroyed
after the liquidation of Afri-craft.
It was Mrs. Maziya’s evidence that she attended no meetings of directors at which the resolutions regarding the suretyship
agreement or the passing of the mortgage bonds were taken. She averred that she only got to know of the existence of the agreement
and of the bonds after summons was served on respondent in the present action. In regard to the resolution in respect of the first
mortgage bond in March 1996, she said that she was not aware of any meeting being held at Mbabane on 14th March 1996. She was certainly not present. She was not living in Swaziland at the time being out of the country in South Africa from
1994 to 1997 and only came to visit her husband in Swaziland once or twice a month. She was also not aware of any meeting at which
the resolution of 4th November 1998 was said to have been taken and was certainly not present at one.
Mrs. Maziya said only one or two meetings a year of the directors of respondent were ever held.
Grave doubts exist in my mind as to the veracity of Mrs. Maziya when she testified that she knew nothing about the resolutions in
regard to the suretyship agreement and the mortgage bonds and the meetings at which the were, as set out in the resolutions, said
to have been taken.
A reading of her evidence on the record leaves one with the distinct impression of a singularly untruthful witness. For example,
early in November 1998 Maziya resigned as a director of the respondent company and transferred his 90% shareholding over to his 18
year old son for a consideration of E90. The value of the property which was the sole asset in the company was over E1 million at
the time. Mrs. Maziya said she had signed the resolution and the document for the transfer of the shares “because he (i.e.
Maziya) wanted that”. Asked why she had agreed to a resolution enabling a 90% shareholding making over his shares in a company
that owned a property of over E1 million to his son for E90 she said “I did not really go through each and every page of it.
I just signed”. Mrs. Maziya said she did not recall a meeting of the directors in regard to the transfer of the shares and
her husband’s resignation from the board. She was, she said, not aware of a meeting of the board on 10th November 1998. Asked why a minute of that meeting recorded that she had been present at the meeting she replied, “Well it is
a year or two ago. I do not remember”. Shown the document which reflected her signature as the secretary at the meeting, she
changed her evidence and said she might have attended the meeting.
This unreliability on her part as a witness permeates the whole of her evidence. In opposing the Bank’s application for summary
judgment, the respondent filed an affidavit by Mrs. Maziya. Asked at the trial by Mr. Flynn if she had signed such an affidavit,
she said that although the signature on the affidavit “looks like my signature but I do not recall signing it”. When
it was pointed out that she had signed it on 15th April 1999, only a year earlier, she said, “I think I must have signed it” which represented another volte face in her evidence.
Mrs. Maziya also stated that when she signed the affidavit on 15th April 1999 the liquidators of Afri-craft had taken possession of the books of the respondent company and it will be recalled that
she said that all those books had been destroyed. In her affidavit she stated the following-
“I am one of the two directors of the company. I am not aware the company having authorised any person to enter into a suretyship.
I have thoroughly searched the books of the company and there was never a resolution authorising any person to sign the suretyship on its behalf”. (my emphasis)
Asked what books she had searched she said “I do not recall”. Asked by the learned Judge “Why did you search the
books?”, she replied “I did not search any books”. The following questions and answers then follow:
But why did you say you did?
Why did you on oath say that you did?
Can you not answer that?
Referred to a further paragraph in her affidavit that “the loan agreement was never authorised” she was asked by Mr. Flynn.
“Do you know at all what you were talking about that paragraph or did you just sign it?”
Mrs. Maziya replied –
“I just signed it”.
The following passage in the evidence then ensues.
Am I correct Mrs. Maziya that you signed something that you knew absolutely nothing about…
That does not make her a very good witness.
That is the point, My Lord.
I am not sure what effect this has on the whole thing.
It is a matter of credibility My Lord. It is of great importance.
It is clear from the aforegoing that she was untruthful. She said in her affidavit that she had thoroughly searched the Books of respondent company at a time when she knew the books had been destroyed. The other passages I have quoted also show
her also to have been a lying and unreliable witness at the trial.
It is significant that she should have lied in relation to looking for resolutions in the books of the company and this leaves one
with the distinct suspicion that there were the requisite resolutions and that she knew about them.
Her evidence can also not, in my view, be relied on when she says that she would have participated in the passing of the resolutions.
She had in my opinion left the conduct of the affairs of the respondent company entirely to her husband, Cyprian Maziya.
Mrs. Maziya said she did not play an active part in the affairs of the company because most the time she was not in Swaziland. When
she found out about the suretyship she “was really disappointed. He (her husband) was not honest enough to let me know about
that”. It was never discussed with her at all. “He did everything on his own” she said. “He never told me
anything about it”. She conceded that she knew very little about what was happening in the respondent company. The company
was not trading. It was a property-holding company. Asked if she took no interest in the affairs of the company, she said –
“Not really that I did not take any interest in the affairs of the company. He was here. I trusted him that he would do whatever was necessary. Really there was nothing much to be done. It was not trading”. (emphasis added)
And further questions and answers during her cross-examination by Mr. Flynn for the Bank read as follows.
Tell me, when it came to the running of the affairs of Makhaza basically as I understand
it you left everything to your husband?
I would say that. That I left everything with my
You took no interest in the actual affairs or the documents of the company?
No I did not”.
She also conceded that she did not know, as the facts established, that payments of approximately E15,000.00 were made on respondent’s
behalf to the Bank in respect of the indebtedness of Afri-craft or of payments made by a company known as Dundee Investments (Pty)
Ltd to respondent. Pursuant to this, the following questions by Mr. Flynn and her replies to them appear on the record:
So throughout the course of the affairs of Makhaza is that what you are saying; that
you really played no part. You took no notice?
Like I said at that time I was not even living in Swaziland.
So you took no notice of the affairs of Makhaza?
With the affairs of Makhaza I was not even living here in Swaziland at the time”.
Referring to the time when the resolutions were passed Mrs. Maziya was asked –
When those things were done, you were not playing any part in the company?
I was but I was not active at all”.
Furthermore, in questioning by the learned trial Judge, the following appears:
The point about it is this Mrs. Maziya. I want you to be frank. The fact of the matter
is that in the affairs of Makhaza you were really a figurehead as a director. It was all left to Maziya himself to run the company
and run both companies as a matter of fact. Is that not the situation because you keep telling us throughout your evidence that you
do not know anything. Is that not so?
There is not much that I know I admit to that”.
In assessing Mrs. Maziya’s evidence learned Chief Justice found that “although cross-examined at length she remained
firm and unshaken on this crucial issue” i.e. on whether she took part in the passing of the resolutions. He said further in
regard to her evidence:
“She denied that she in effect abrogated, abandoned her right to have a voice in the important decisions affecting the defendant.
She denied, and, notwithstanding close questioning, maintained her denial that the affairs of the defendant were conducted in such
a manner that her husband was in fact given a free rein to contract on behalf of the defendant”.
I have considerable difficult with these findings by the learned Chief Justice, particularly in the light of the evidence I have quoted
to the effect that she left everything in the company to her husband and especially when one has regard to his own question and her
answer to it as to her part in the company.
I also find his conclusion that she remained “firm and unshaken” on the issue of the resolutions incomprehensible. As
set out above, she showed herself to be a consummate liar under cross-examination and the learned Judge himself opined that she was
“not a good witness”.