Shosholoza Auctioneers CC v Ngqura Harbour Contractors

• Jurisdiction: South Africa
• Judge: Ndlovu J
• Judgment Date: 04 November 2008
• Docket Number: 4222/07
• Hearing Date: 10 September 2008
• Court: Natal Provincial Division

Ndlovu J:

[1] This is an application whereby the applicant (the defendant in the main action) (i) challenged the authority of the attorneys for the respondent (the plaintiff in the main action) to act for the respondent and (ii) sought to have the notice of bar issued by the respondent against the applicant set aside or removed. The application was opposed by the respondent who, in turn, filed a counter-application seeking a declarator barring the applicant from pleading in the main action.

[2] In its amended order prayed the applicant sought an order:

"1.

1.1

That the respondent/plaintiff within 5 days of the granting of this order, comply with applicant/defendant's notice in terms of Rule 7(1).

1.2

In the event that respondent/plaintiff does not comply with the order in prayer 1.1 above that applicant/defendant be granted leave to set the matter down again, for an order that respondent/plaintiff's claim be struck out.

2.

That the notice of bar issued and filed by plaintiff/respondent on 9 October 2007 be set aside/removed.

3.

Costs of the application."

2008 JDR 1310 p2

Ndlovu J

[3] The applicant's challenge as such was premised on a notice dated 13 July 2007 issued by the applicant in terms of Rule 7(1) of the Uniform Rules of Court. This notice (hereafter referred to as the Rule 7(1) notice) was served on the respondent calling upon it to furnish the power of attorney envisaged under the said Rule authorising its attorneys to act on behalf of the respondent in this matter.

[4] In the main action the respondent sued the applicant for payment of the sum of R966 800,00 plus costs of suit.

[5] The Rule 7(1) notice read as follows:

"PLEASE TAKE NOTICE that, in terms of Rule 7(1) of the Uniform Rules of Court, the Defendant disputes the authority of Paula Drotskie Attorneys and/or Lister and Lister to act for the plaintiff."

[6] The respondent, apparently believing that it had complied with the Rule 7(1) notice and seeing that the applicant had still not filed its plea, after the time prescribed by the Rules, served on the applicant a notice of bar placing the applicant on terms to plead within 5 days of receipt thereof on pain of being barred from pleading. It was this notice of bar which the applicant also sought to be set aside.

[7] In response to the Rule 7(1) notice, the respondent filed and served on the applicant a document headed "Executive Committee Resolution" dated 30 August 2007 (which was marked Annexure "FJ5B"). This document was contained in a letterhead with the names at the top thereof of the respondent and three other corporate entities, namely: Hochtief Construction AG, Concor and NEC, the last-mentioned further having four sub-entities under its name: Africa Construction, Siyaya Civils, Saklusizwe Construction and MMP Civils.

[8] Indeed, in its particulars of claim the respondent (as plaintiff) described its legal status as being that of a partnership trading under the name and style of Ngqura Harbour Contractors. Upon enquiry by the applicant in terms of Rule 14(5) the respondent furnished the names and addresses of the

2008 JDR 1310 p3

Ndlovu J

individual partners engaged in business with the respondent. The names of the other partners were those appearing with the name of the respondent in Annexure "FJ5B".

[9] As indicated earlier, Annexure "FJ5B" was filed in response to the applicant's Rule 7(1) notice, whereby the applicant had challenged the authority of the respondent's attorney to act on behalf of the respondent. The entire document (Annexure "FJ5B") read thus:

"EXECUTIVE COMMITTEE RESOLUTION: 30TH AUGUST 2007.

1.

INSTITUTION OF ACTION AGAINST SHOSHOLOZA AUCTIONEERS CC FOR THE SUM OF R966 800.00 (NINE HUNDRED AND SIXTY SIX THOUSAND EIGHT HUNDRED RAND) INCLUSIVE OF VAT)

2.

APPOINTMENT OF ATTORNEYS TO REPRESENT THE JOINT VENTURE PARTNERSHIP

1.

RESOLVED THAT

Ngqura Harbour Contractors, a partnership institute legal action against Shosholoza Auctioneers CC for the payment of the sum of R966 800.00 (nine hundred and sixty six thousand eight hundred rand) inclusive of Vat.

2.

RESOLVED FURTHER THAT

Paula Drotskie Attorneys of 29 Avonwold, Saxonwold, Johannesburg be and is hereby appointed as attorneys to the joint venture to represent it in all matters pertaining to the abovementioned legal action."

[10] There was no indication of the exact date as to when Annexure "FJ5B" was served on the applicant. I can therefore only assume that it was on or about the same date as that of the resolution, namely 30 August 2007. According to the respondent, Annexure "FJ5B" served as a power of attorney authorising the respondent's attorneys, Paula Drotskie Attorney of Johannesburg, to act for the respondent. It was common cause that their local correspondent attorneys were Lister and Lister of Pietermaritzburg.

[11] Indeed, there was no immediate objection by the applicant against the validity of Annexure "FJ5B" to have served as power of attorney. There being no defendant's plea filed by the applicant within the time prescribed by the Rules, the respondent filed and served a notice of bar on the applicant on or about 9 October 2007. This was already over five weeks after the respondent had served the applicant with Annexure "FJ5B". Only on the day thereafter (being on 10 October 2007) that the...