Masako v Masako and Another (724/2020) [2021] ZASCA 168; 2022 (3) SA 403 (SCA) (3 December 2021)

Masako v Masako and Another (724/2020) [2021] ZASCA 168; 2022 (3) SA 403 (SCA) (3 December 2021)

The Supreme Court of Appeal held that the appellant, as the party affected by the default judgment, had the necessary locus standi to bring the rescission application. The inquiry into the attorney's standing was irrelevant, as the attorney was merely the deponent of the affidavit and not the applicant. The Court reaffirmed that an attorney does not require express authorisation to depose to an affidavit; what matters is the authority to institute and prosecute proceedings, which was not challenged by the respondent. The appellant's confirmatory affidavit further confirmed the attorney's mandate. The Court found that the lower courts conflated the concepts of locus standi, authority to...

Citation
[2021] ZASCA 168
Parties
Appellant: Pauline Masibe Masako; Respondent: Molefe Stephens Masako; Respondent: Elsepch Nomahlubi Belinda Khwinana
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
3 December 2021
Case Number
724/2020
Procedural Posture
Civil Appeal / Appeal From High Court Judgment on Point in Limine Regarding Locus Standi in Rescission Application
Outcome
Appeal upheld; orders of the lower courts set aside; matter remitted for determination of the merits of the rescission application.
Judges
Dambuza, Schippers, Mabindla-Boqwana
Legal Topics
Locus Standi, Rescission of Judgment, Authority of Attorney, Affidavit Deposition, Divorce Settlement
Civil Procedure Family and Children Locus Standi Rescission of Judgment Authority of Attorney Affidavit Deposition Divorce Settlement

Case Brief

Summary, issues, holding and outcome

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Parties

Pauline Masibe Masako

Appellant

Molefe Stephens Masako

Respondent

Elsepch Nomahlubi Belinda Khwinana

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment on Point in Limine Regarding Locus Standi in Rescission Application

Legal Issues

  1. 1 Whether an attorney requires express authority from a client to depose to an affidavit in support of a rescission application.
  2. 2 Whether the attorney's lack of direct and substantial interest affects the validity of the rescission application.
  3. 3 Whether the confirmatory affidavit by the client cures any alleged lack of authority.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant, as the party affected by the default judgment, had the necessary locus standi to bring the rescission application. The inquiry into the attorney's standing was irrelevant, as the attorney was merely the deponent of the affidavit and not the applicant. The Court reaffirmed that an attorney does not require express authorisation to depose to an affidavit; what matters is the authority to institute and prosecute proceedings, which was not challenged by the respondent. The appellant's confirmatory affidavit further confirmed the attorney's mandate. The Court found that the lower courts conflated the concepts of locus standi, authority to...

Court Disposition

Appeal upheld; orders of the lower courts set aside; matter remitted for determination of the merits of the rescission application.

Orders

  • The appeal is upheld.
  • The order of the North West Division of the High Court, Mahikeng is set aside and replaced with an order upholding the appeal with costs and setting aside the Regional Court's ruling dated 3 October 2018.