THE HIGH COURT OF SWAZILAND
CASE NO. 1525/92
the matter between:
AUTOMATIVE (SWAZILAND) Plaintiff
TRANSPORT (PTY) Defendant
: Sapire A.J.
THE PLAINTIFF (RESPONDENT) : Mr Dunseith
THE DEFENDANT (EXCIPIENT) : Mr Nkosi
plaintiff has sued defendant for payment of E151.308.45 and
ancilliary relief, alleging that on the 30th April, 1992 the
defendant took two trucks on hire from plaintiff for an indefinite
to the agreement, the plaintiff delivered the trucks to the
defendant, at which time they were in an undamaged condition.
summons further alleges that on the 4th June, 1992 while the trucks
were in defendant's possession, one of them was severely damaged in a
collision, and thereafter returned to the plaintiff in such damaged
condition. The plaintiff claims the costs of repairing the vehicle.
claim as framed is based on defendant's alleged breach of his
contractual obligation to have restored the truck to the plaintiff at
the termination of the hiring in the same good order and condition as
it was at the commencement thereof. This obligation is a term of
every contract of letting and hiring implied by law. It is open to
the Lessee in cases where the subject matter of the contract is lost
or damaged to show that the loss or damage to the item taken or hired
was occassioned by events and circumstances beyond the control of the
Lessee, and which he could not have avoided.
points were raised in the notice of exception. Firstly it is said
plaintiff is a juristic person and in spite of it being able to
acquire rights and duties, it is imperceptible in a physical sense,
and cannot personally take part in legal transactions, it must be
represented by an officer or director who is authorised to do so by
resolution of the Board of Directors".
stating that the plaintiff has not filed a company resolution
authorising its officers or directors to institute proceedings, the
notice of exception states that:
does not allege in its summons that it is duly authorised to bring
the action nor does it allege the source of authority to institute
conclusion which the defendant seeks to reach is that the summons is
fatally defective in that the plaintiff lacks capacity. Were it not
that there is a judgment of this court which supports the defendant's
contentions, I would have no difficulty in dismissing the point
without further ado.
CIV.T.826/91, BANK OF LISBON INTERNATIONAL v A.D.S. CARDOSA, this
point was raised by the defendant. The proceedings in that instance
were for provisional sentence and Rooney J. held that the plaintiff
if a company must allege in its summons that the proceedings are
instituted in terms of a "Company" resolution which must be
attached to the summons as one of the documents stipulated under rule
8(3) of the rules in cases where provisional sentence is sought.
authority for this extraordinary ruling was referred to. I say that
the ruling was extraordinary because as far as I am aware the
requirement as stated by Rooney J. has been universally honoured in
the breach thereof. It is unheard of for a company suing in a
provisional sentence case to attach a "company" resolution
to its summons, nor is it ever done to attach even a resolution of
directors. Such a requirement is certainly not to be found in the
rules of court.
J, sought to draw a distinction between a company resolution
authorizing its officers to institute proceedings and the appointment
of an attorney to conduct such proceedings.
an authority for the proposition that the former is an imperative
requirement, the case of MALL (CAPE) (PTY) Ltd v Merino Ko-operasium
BPK 1957 (2) SA 347 was cited. That case however dealt with motion
proceedings and was decided at a time before the rules of court were
amended to read as they now do, dispensing with the necessity for
filing a power of attorney in action proceedings. That case certainly
did not rule that a plaintiff company in provisional sentence
proceedings should attach to the summons a copy of a director's
resolution, let alone a company resolution to prove that the
necessary internal procedures for the institution of the action had
terms of the Companies Act No. 7 of 1912 (which I observe in passing
is in sore need of being brought into line with the developments in
company law over the past eighty years), upon the registration of the
memorandum of a company, the Registrar is required to certify that
the company is incorporated. From the date of incorporation mentioned
in the Registrar's certificate, a body corporate comes into
existence, capable of forthwith exercising all the functions of an
would include the power to sue and be sued in its own name.
summons in this instance alleges that the plaintiff which sues in its
own name as it is entitled to do is a company registered according to
law. It follows that it has been alleged in the summons that it has
the capacity to sue and be sued in its own name.
question therefore raised by the exception is whether there is an
additional requirement that an allegation must . appear in the
summons that the internal procedures of the company in terms of which
it transacts its business have been complied with. As Companys' act
through their Boards of Directors, the point taken by the defendant
implies that a plaintiff company has to allege that, the directors
have resolved to institute the action, and have designated some
individual who may or may not be a member of its board to give effect
to that resolution.
requirement has never been recognised or complied with, and no
authority has been quoted other than the case referred to that such a
procedure should be followed.
am satisfied that no such requirement exists. There is a presumption
of regularity, expressed in the Latin words OMNIA PRAESUMUNTUR RITE
ESSE ACTA, which applies in this case and entitles and requires a
person dealing with a company to assume, in the absence of knowledge
to the contrary, that all is being done regularly and that the
relevant articles governing the situation have been observed. ROYAL
BRITISH BANK v TURQUAND 1856 E & B 327. In view of this
presumption, it is not necessary to allege in the summons that any
internal procedures such as the passing of a resolution which may be
appropriate to the plaintiff company have been observed. In many
cases the directors act informally and do not pass a resolution at a
specially convened meeting.
company may appear in court or litigate, except through attorney and
INVESTMENTS (PTY) LTD v CIR 1956 (1) SA 364.
CARPET HOUSE v DOMESTIC & COMMERCIAL CARPET FITTINGS (PTY) LTD
1977 (3) SA 448 W.
is a provision in the rules of court for a party to require proof of
the authority of any attorney to act for any company which he
represents. Since the rules of court were changed, there is no need
for the production of a power of attorney and a supporting resolution
unless the attorney's authority to act is challenged in accordance
with the rule.
such challenge takes place, it is the attorney and counsel who
represent the company notwithstanding that it is a juristic person
and inspite of it being imperceptible in a physical sense.
am sufficiently convinced of the incorrectness of the decision in
BANK OF LISBON INTERNATIONAL v CARDOSA, that in so far as that case
cannot be distinguished from the present, I am constrained to differ
therefrom and hold that it is not necessary in a summons in which the
plaintiff is a company to allege that a resolution of directors has
been taken authorising the commencement and conduct of the
proceedings," and for a copy of such resolution to be attached
to the summons.
first point raised therefore fails.
second point raised in the notice of exception is that because the
plaintiff has not alleged negligence or some other fault on the part
of the defendant as having occassioned plaintiff's claim, the summons
lacks the averments necessary to disclose a cause of action.
Plaintiff's claim is based on a breach of contract on defendant's
part in failing to return the truck in the condition which it had
been when taken on hire.
have already observed that this obligation exists independent of any
negligence on the Lesse's part.
Lesse may allege circumstances and events which excuse it from
returning the object in such same good order and condition.
onus of doing so is on the defendant and there is no substance in the
point therefore that negligence has not been alleged in the summons.
third ground relied on is that in an annexe to the summons, which is
a copy of an order allegedly placed by the defendant, the name of the
person to whom it was addressed would appear initially to have been
that of someone other than the plaintiff. The order was however
amended, and now seems to refer to the plaintiff.
does not constitute a ground for an exception that the summons does
not disclose a cause of action. The discrepancy , if there is one,
will or will not be clarified in evidence. If the defendant maintains
that it did not place the order for the trucks with the plaintiff may
plead this and in due course endeavour to establish it at the trial,
but the summons is not open to attack on this ground.
the result, all three elements of the exception cannot be maintained
and the exception is dismissed with costs.