Milne, NO v Fabric House (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Holmes J
• Judgment Date: 14 May 1957
• Citation: 1957 (3) SA 63 (N)
• Hearing Date: 07 May 1957
• Court: Natal Provincial Division

Milne, NO v Fabric House (Pty) Ltd
1957 (3) SA 63 (N)

1957 (3) SA p63

Citation	1957 (3) SA 63 (N)
Court	Natal Provincial Division
Judge	Holmes J
Heard	May 7, 1957
Judgment	May 14, 1957

Flynote : Sleutelwoorde

Provisional sentence — Affidavits in — Number of — When A third set permitted.

Headnote : Kopnota

In provisional sentence applications only two sets of affidavits are permitted - those of the defendant and those of the plaintiff in reply. But the Court has a discretion, in a proper case, to admit B further affidavits, such discretion to be exercised judicially upon a consideration of the facts of each case and basically it is a question of fairness to both sides.

Case Information

Action for provisional sentence. Facts not material to this report have been omitted.

D. L. L. Shearer, for the plaintiff: The Court will only allo w another C set of affidavits if substantial grounds are shown. Joseph & Jeans v Spitz and Others, 1931 W.L.D. at pp. 48 - 50; Mauerberger v Mauerberger, 1948 (3) SA 731 at pp. 732 - 733. Defendant now seeks to amplify general statements in his original affidavit. There is nothing in the plaintiff's affidavit that defendant could not have foreseen. The onus on the plaintiff is to establish that the person purporting to act D for the Company was a director. Once plaintiff establishes this the Company cannot repudiate his ostensible authority. See Royal British Bank v Turquand, 1856 E. & B. 327; Legg & Co v Premier Tobacco Co., 1926 AD 132 at p. 144.

D. D. Will, for the defendant: The Court should allow a third set of E affidavits as there are exceptional circumstances. Thompson v Williams, 30 N.L.R. 121; S.A. Mutual v Rubins, 1912 NPD 233. Alternatively respondent should be given leave to give viva voce evidence, Essack v Dooma, 1932 NPD 255. As the authority to enter into the mortgage bond by the Company is questioned, the onus, even in provisional sentence proceedings, is on plaintiff, Inglestone v Perreira, 1939 W.L.D. 71. The onus is on plaintiff to show that a F special resolution was validly passed after proper notice to directors. The rule in the Turquand's case, supra, does not apply as the person purporting to render the Company liable had no powers actual or ostensible. Dey v Pullinger Engineering Co., 1921 (1) K.B. 77; Emmett & Cowen, Negotiable Instruments, p. 72. G

Cur adv vult.

Postea (May 14th).

Judgment

H Holmes, J.:

The plaintiff sues the defendant company for provisional sentence on a notarial bond. The summons avers that the plaintiff is the trustee of the insolvent estate of I. S. Limbada; that...