It was, and is, the respondent’s case that no board meeting of the two directors viz Maziya and his wife was ever held at which
any resolution authorising Maziya to sign the suretyship agreement or the two powers of attorney was ever taken.
The trial of the matter came before Sapire CJ. In a written judgment delivered on 23rd January 2001 he stated that the only issue between the parties was whether Cyprian Maziya who, as a director of respondent granted
the conveyancer, Stanley Bongani Mnisi, power of attorney to register the two bonds, was authorised by a resolution of the directors
of respondent to do so, as also to bind respondent in terms of the suretyship agreement. The basis of respondent’s defence
was that no valid resolutions had been taken by respondent as Mrs. Ntombi Maziya who was one of the directors of respondent was not
a party to the resolutions. Mrs. Maziya and Maziya both gave evidence denying that she had attended any meetings of directors at
which the resolutions were taken. She also denied that Maziya as 90% shareholder was given a free rein to conduct the affairs of
the respondent and to contract on its behalf. Holding that the Bank’s case on the pleadings was based on an actual authority
to Maziya given by resolution of the board of directors and that it could on the pleadings not rely on his having an implied authority
to act on respondent’s behalf, the learned Chief Justice found that the authority of Maziya to bind the respondent had not,
in the proceedings before him, been established. He therefore granted the respondent absolution from the instance, with costs.
It is against that judgment that the appellant Bank now comes on appeal to this Court.
In his argument on behalf of the appellant Mr. Flynn submitted that the authority of Maziya could be inferred from the evidence.
This authority, on all the evidence was either actual authority or such authority could be inferred from the acquiescence of Maziya’s
fellow director, his wife Mrs. Ntombi Maziya, in his conduct of the affairs of the company. Mr. Flynn relied for these submissions
on two cases in the South African courts of DICKSON V ACROW ENGINEERS 1954(2) SA 63 (WLD) and ROBINSON V RANDFONTEIN ESTATES GOLD MINING COMPANY LIMITED 1921 AD 168.
In the ROBINSON case, Innes C.J. referred to the fact that there the directors of the Randfontein Est, G.M. Company had not passed any resolution
authorising the plaintiff, Robinson, to act on their behalf. He then went to say the following (at page 181)
“An express mandate would therefore have been within the competency of the Board. And, that being so, there is no reason on
principle why a mandate of similar scope should not be inferred if sufficient grounds exist. It was held in an American case (JONES V WILLIAMS (37 LAWYERS’ REPORTS, ANNOTATED, page 682)) that management of the entire business of a corporation might be entrusted to its president either by an express resolution
of the directors or by their acquiescence in a course of dealing. And the directors, who, in COOK V DEEKS (1916, 1 A.C. p. 561), were described as having the entire management of an important section of the Company’s operations in their hands,
had not, so far as the report shows, been placed in that position by any express mandate from the Board. So that there is no legal
obstacle to the existence of an implied mandate here. Whether it was rightly implied depends upon the facts”.
In the same case, Solomon J.A. at pages 217-218 said this, after referring to the English case of BURLAND V EARLE 1902 A.C. 83:
“It is clear from this case that a director is not as such an agent of his company. He may, however, become an agent in more ways than
one. Under the Articles of Association of the plaintiff company, as of most companies, the directors may delegate any of their powers
to committees consisting of such member or members of their body as they think fit, and upon such delegation to one or more of their
number the director or directors in question would themselves become agents of the company in regard to the duties so entrusted to
them. Moreover such delegation may take place not only formally by express resolution of the board but also informally by the directors
acquiescing in a course of dealing”.
In DICKSON V ACROW ENGINEERS (PTY) LTD supra, Roper J in considering whether one de Vigier, a director of the defendant company had authority to bind the company said at
page 64 –
“In my view the question is whether de Vigier had implied authority to bind the company. It is clear that such authority can
be inferred from a course of dealing inside the company itself”.
As support for this Roper J referred to the passages in the Robinson case that I have quoted above and said at page 65C:
“An implied mandate to a director to manage and control the affairs of the company may therefore be inferred from the acquiescence
of the other directors in the course of dealing of the company”.
(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 authori
