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Regadas v Martins (Civil Appeal No. 43 of 201) [2002] BWCA 26; [2002] 2 B.L.R. 63 (CA) (19 July 2002)

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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
Court of Appeal Civil Appeal No. 43 of 2001 High Court Civil Trial No. F433 of 1999
In the matter between:
HORACIO RODRIGUES REGADAS        APPELLANT
AND
JOSE ANTONIO MARTINS     RESPONDENT
Mr P A Kgalemang for the Appellant Mr S Thapelo for the Respondent
JUDGMENT
CORAM: K R A KORSAH J.A.
LORD R I SUTHERLAND J.A. A M AKIWUMI J.A.
LORD SUTHERLAND J.A.
On 21 September 1999 a writ of summons was taken out by the respondent against the appellant seeking relief in respect of an alleged shareholding in Salisbury Investment (Pty) Ltd. On 20 October the appellant entered appearance to defend, his attorneys being Phumaphi, Chakalisa & Co ("Phumaphi"). The appellant failed to file a plea, and on 17 November the respondent filed a notice of intention to bar. He then

filed an application for interlocutory judgment, which was granted on 23 November. On 10 December Mosojane J. ordered that the Registrar should attend to the assessment of damages.
In the meantime, on 17 November Phumaphi maintained that they had a conflict of interest, and passed over to Kgalemang & Associates ("Kgalemang") the defence of the appellant. No notice of this was given to the respondent's attorneys. Eventually on 17 January 2000 Phumaphi filed a notice of withdrawal as the appellant's attorneys of record. On 28 January Kgalemang filed a notice of assumption of agency, but did not file a power of attorney.
There then appear to have been negotiations between the parties, but these broke down. On 12 June 2000 the respondent filed a notice of motion seeking an order to commit the appellant to prison for contempt of court, on an allegation that there had been a failure to comply with the interlocutory judgment. A notice of opposition was filed by the appellant on 19 June, and a power of attorney was lodged in respect of this matter. On 8 August 2000 the appellant filed a notice of motion to set aside the default interlocutory judgment and to grant leave to the appellant to file his plea in order to defend the case. No separate power of attorney was lodged in respect of this motion. This motion was duly opposed by the respondent on 14 August.
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Both motions came before Mwaikasu J. who on 2 August 2001 found the appellant guilty of contempt of court and fined him PIOOO.OO. This order is not appealed against. Eo die he held that as no power of attorney had been lodged by the appellant, the application to set aside the default judgment was a nullity and would be dismissed. It is against this decision that this appeal is taken.
The provisions in the High Court Rules relating to powers of attorney are to be found in Order 4. Rule 1 provides:
"Except as is hereinafter provided, no writ of summons and no order of arrest under Order 15 shall be issued by the Registrar at the instance of an attorney on behalf of a plaintiff, nor shall the Registrar cause appearance to be entered at the instance of an attorney on behalf of a defendant unless there has been filed with him a power of attorney to sue or defend, as the case may be..."
Order 4 does not require a power of attorney to be filed in respect of any ancillary applications or motions. In Western Industrial Estates (Ptv) Ltd v Eland Shoes (Botswana)(Ptv) Ltd, MISCA F177/1998 Mosojane J. accepted that this is so, but pointed out that:
"...there has developed in this Court as far back as no memory can tell, a practice of filing a power of attorney in both motion and other proceedings without distinction. The
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practice makes sense and there seems to me to be no reason now to depart from it."
In fact the only power of attorney filed by the appellant's attorneys was in relation to opposition to the respondent's motion for committal for contempt of court. When the appellant's motion to rescind the default interlocutory judgment was filed, it should have been covered by a power of attorney. It was not. It was suggested by the appellant that because the motion for committal was intertwined with the appellant's motion to rescind, both motions being heard on the same day, no further power of attorney was needed. Examination of the power of attorney which was filed, however, shows quite clearly that it related to the opposition to the motion for committal and nothing else. It was certainly not apt to cover the motion to rescind. It follows that the motion to rescind would have to be dismissed, unless the failure to file a power of attorney could be condoned.
Order 5 Rule 1 provides:
"Subject to rule 2, non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the court so directs, but the proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with, in such manner and on such terms as the court may think fit."
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The judge a quo referred to this rule, but went on to say:
"Such provision notwithstanding, I am clearly of the view that in legal proceedings where counsel proceeds to institute proceedings against any party on behalf of a certain cited party without the express authority, or power of attorney deposited with the court by such person being so represented, such proceedings so instituted must be regarded as null and void for want of necessary mandate, and, ipso facto, cannot be proceeded with. They have to be dismissed."
The words which I have underlined indicate that the Judge a quo appeared to think that he had no discretion to consider the circumstances and that the proposition he advanced was an absolute one. If this is so, he was in error, as the court will always have a discretionary power to condone a breach of rules, although in cases of gross breach the power may be one which will be very sparingly exercised. As the judge a quo has failed to exercise his discretion, it is open to this court to do so if appropriate.
The purpose of requiring a power of attorney being filed is to prevent a person whose name is used in the process as plaintiff or defendant from afterwards repudiating the process and saying he had given no authority, and to prevent the bringing or defending of an action in the name of a person who has never authorised it: United Dominions Corporation (SA)
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(Pty) Ltd v Grevlmgs Transport 1957(1) SA 609. In considering whether the failure to file a power of attorney should be condoned, it is relevant to consider whether the other party has been put at risk of having the actings of the attorney repudiated by his client. In the present case, the motion to rescind referred to and was accompanied by an affidavit sworn by the appellant personally. In this affidavit the following statements appear: "The purpose of this application is to rescind an interlocutory judgment that was granted against me by the Registrar on the 23 November 1999. My former attorneys after realising that they have not properly represented me suggested that I should take my file to my present attorneys. See Annexure FA2". Annexure FA2 is a letter from Phumaphi to Kgalemang dated 17 November 1999 confirming that the latter will henceforth act on behalf of the appellant. "On the 19 June 2000, realising that there was no possibility of an out of court settlement, I instructed my present attorneys of record to act and caused a power of attorney to be filed." In fact of course a power of attorney was not filed, but that would not appear to be due to any fault of the appellant personally. From this affidavit it is abundantly clear that the appellant is instructing his attorneys of record, Kgalemang, to take action to rescind the interlocutory judgment. While the affidavit is not in exact form a power of attorney it is very close to it. The important point however is that standing by the terms of his affidavit, the appellant could never contend that he had not authorised Kgalemang to bring the
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application in question. In these circumstances, while it is regrettable that Kgalemang did not follow the apparent instruction given by the appellant to file a power of attorney, the affidavit is the equivalent of a power of attorney and is certainly sufficient to prevent the respondent from being at risk of suffering any of the evils which a power of attorney is intended to protect against. It is interesting to note that while the practice in South Africa is slightly different, no power of attorney is required in any applications, the reason being that the applicant must sign an affidavit and thus by implication gives power to his attorney: ex parte de Villiers 1973(2) SA 396. I am accordingly satisfied that this is a proper case to exercise the discretion contained in Order 5 rule 1, and condone the failure to file a power of attorney. This is particularly so when the breach is one of a rule of practice rather than breach of a statutory rule.
It was suggested that this court should consider the merits of the application to rescind. This however we cannot do, as the merits have never been considered in the High Court and there is accordingly no decision to be appealed against. The case will be returned to the High Court to hear the motion on its merits.
As far as costs are concerned, the initial problem arose because of the admitted failure of the appellant's attorney to comply with the admitted
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rule of practice that a power of attorney should be lodged. As no other power of attorney had ever been lodged since Kgalemang's assumption of agency apart from the power to cover the opposition to the motion for committal, the respondents were perfectly entitled to take the point that Kgalemang had no apparent mandate and that the application should be dismissed. It appears from Mwaikasu J.'s judgment that no attempt was made to dispute that a power of attorney should have been lodged, and no request was made that this failure should be condoned because of the existence of the affidavit. That being so, both the original failure to comply with the rules and the necessity for an appeal have arisen due to the appellant's fault, and the respondents are accordingly entitled to costs. As none of the failures were in any way attributable to the appellant personally but solely due to the way in which the litigation has been conducted by his attorney, there will be an order that the costs will be payable by Kgalemang & Associates de bonis propriis.
DELIVERED IN OPEN COURT AT LOBATSE THIS 19th DAY OF JULY 2002.
LORD R I SUTHERLAND (Judge of Appeal)
agree    —i/:.u    L-J^-^-lx
K^RTTKORSAH—' (Judge of Appeal)

I agree          
A M AKIWUMI (Judge of Appeal)

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