Kunene Motors Holdings Limited v Izicwe Mining Maintenance and Trading CC (A154/2018) [2019] ZAMPMHC 25 (21 June 2019)

Kunene Motors Holdings Limited v Izicwe Mining Maintenance and Trading CC (A154/2018) [2019] ZAMPMHC 25 (21 June 2019)

The trial court erred in dismissing the rescission application solely on the basis that no company resolution was attached to the founding affidavit. Rule 52 of the Magistrates Court Rules requires that any challenge to authority be raised by notice within 10 days of becoming aware, and the challenged party must be afforded an opportunity to prove authorisation before judgment is handed down. The respondent failed to comply with this procedural requirement, raising the point in limine only on the date of hearing and without proper notice. The managing director had averred his authority in the affidavit, and a company resolution existed at the time of the hearing. The trial court should...

Citation
[2019] ZAMPMHC 25
Parties
Appellant: Kunene Motors Holdings Limited; Respondent: Izicwe Mining Maintenance & Trading CC
Court
Middelburg High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
21 June 2019
Case Number
A154/2018
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Rescission Application
Outcome
Appeal upheld. The order of the court below is set aside and replaced with an order granting the rescission application with costs.
Judges
TV Ratshibvumo, MBG Langa
Legal Topics
Rescission of Default Judgment, Authority to Act, Company Resolution, Magistrates Court Rules
Civil Procedure Rescission of Default Judgment Authority to Act Company Resolution Magistrates Court Rules

Case Brief

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Parties

Kunene Motors Holdings Limited

Appellant

Izicwe Mining Maintenance & Trading CC

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Rescission Application

Legal Issues

  1. 1 Whether the failure to attach a company resolution authorising the deponent to act on behalf of the applicant is fatal to a rescission application.
  2. 2 Whether the respondent's challenge to the deponent's authority was procedurally compliant with Rule 52 of the Magistrates Court Rules.
  3. 3 Whether the trial court should have afforded the deponent an opportunity to prove authorisation before dismissing the application.

Ratio Decidendi

The trial court erred in dismissing the rescission application solely on the basis that no company resolution was attached to the founding affidavit. Rule 52 of the Magistrates Court Rules requires that any challenge to authority be raised by notice within 10 days of becoming aware, and the challenged party must be afforded an opportunity to prove authorisation before judgment is handed down. The respondent failed to comply with this procedural requirement, raising the point in limine only on the date of hearing and without proper notice. The managing director had averred his authority in the affidavit, and a company resolution existed at the time of the hearing. The trial court should...

Court Disposition

Appeal upheld. The order of the court below is set aside and replaced with an order granting the rescission application with costs.

Orders

  • Appeal is upheld with costs.
  • The order of the court below is set aside and replaced with: 'Application for the rescission of judgment granted against the applicant in favour of the respondent under case no. MRCC 151/16 on 14 September 20187 is allowed with costs.'