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EX PARTE DE VILLIERS.

(NORTHERN CAPE DIVISION.)

 

1973.  February 2.  VAN DEN HEEVER, J

 

Practice.-Applications and motions.-Power of attorney not obligatory.-Attorney.-Power of attorney.-Not obligatory in applications.-Rule of Court 7 (1).-Purpose of.

 

No power of attorney in terms of Rule 7 (1) is required in applications, since the applicant signs the affidavit or petition.

 

The purpose of the sub-rule set out.

 

Application for rehabilitation. The facts appear from the judgment.

 

J. J. Basson for the applicant.

 

VAN DEN REEVER, J.: Applicant is applying for the rehabilitation of his estate. The papers are in order except that no power of attorney was handed in, empowering applicant's attorneys to act for him herein. The question is whether a power of attorney required in case· such as this.

 

Rule of Court 1 provides that, in the Rules, unless the context indicates otherwise, "civil summons" shall mean a civil summons as defined in Act 59 of 1959; and sec: 1 of Act 59 of 1959 defines a "civil summons" as follows:

 

"any summons whereby civil proceedings are commenced, and includes any rule nisi, notice of motion or petition the object of which is to require the appearance before the court out of which it is issued of any person. against whom relief is sought in such proceedings or of any person who is interested in resisting the grant of such relief".

 

The Afrikaans wording is not particularly successful, since a notice. of motion is not issued by the Court. The English version of Act 59 of 1959 is the official one, and refers to "..................... .

 

Rule of Court 7 (1) provides that

 

''before summons is. issued in any- action at the instance of the plaintiff's attorney, the attorney shall file with the registrar a power of attorney to sue".

 

The question then is whether "summons" in Rule 7 (1) bears the meaning of civil summons as defined in sec. 1 of Act 59 of 1959, in which case a power of attorney seems indeed to be required in the present case, since applicant's notice of motion is intended to give the Master and the trustee an opportunity to oppose the relief applied for, or whether the context of the Rules indicates that ''summons" in Rule 7 (1) means something other than "civil summons" as defined in Act 59 of 1959.

 

Rule of Court 7 (1) does not say that a power of attorney is required for every summons but only :

 

"Before summons is issued in any action at the instance of the plaintiff's attorney."

 

An action is defined as a proceeding which is initiated by summons or warrant in terms of Rule 9, and in this definition "summons" clearly bears its ordinary meaning, not the wider one attached thereto by the Act. Notice of motion is not issued (i.e. by the Registrar) at the instance of anyone. Cf. Republikeinse Publikasies (edms.) bpk. v. Afrikaanse Pers Publikasies (Edms.) Bpk., 1972 (1) S.A 773 (AD.) at p. 780D-E.

 

According to Nathan, Barnett & Brink, Uniform Rules of Court, p. 49, no power of attorney is required in applications, since the applicant signs the affidavit or petition personally. I agree with this view. The purpose of the sub-rule is to prevent the person whose name ap­ pears in the pleadings, from repudiating them and denying that he authorised their issue, and formal proof of an attorneys authority to have a notice of motion served and filed, and to brief counsel (cf. Northern Assurance Co. Ltd. v. Somdaka, 1960 (1) S.A. 588 (A.D.) at p. 596D-E) appears· to be superfluous where not only a person's name appears on the pleadings, but also his signature. Moreover, Rule 7 (1) requires a power of attorney to be filed at a particular time; before summons is issued, and there is nothing to indicate the "crucial moment" (cf. Allen Pohl, Otto & Theron (Pty.) Ltd. v. Schoeman and Another, 1954 (3) S.A. 589 (T) at p. 593B in motion proceedings, or to compel the necessary inference that it is when the notice of motion is drawn up, or when it is served, where service is required, or when it is filed with the Registrar, etc.

 

The apparent conflict between Rule of Court 7 (1), construed as I conceive it should be, and Rule of Court 16 is satisfactorily resolved in Edmund Woodhouse (Pty.) Ltd. v. Brits, · 1967 (4) S.A. 318 (T).

 

Consequently an order is granted in terms of prayer (a) of the notice of motion.

 

Applicant's Attorneys: Duncan & Rothman.

 

 

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