- August 25, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
CIVIL PRACTICE – RESOLUTION REQUIRED TO OPPOSE PROCEEDINGS ON BEHALF OF ARTIFICIAL PERSON (CoW)
The applicant approached the High Court seeking the review of a decision taken by the first respondent, the Municipal Council of Windhoek. On 13 April 2021, the third respondent filed an answering affidavit purporting also to act on behalf of the first respondent, in which the third respondent alleged that he was “employed by the first respondent” and that he is “duly authorized by the first respondent to depose to this affidavit”. The applicant raised a point in limine of lack of authority of the third respondent to oppose the review application on behalf of the first respondent.
The court gave the first respondent an opportunity to address the issue of authority but failed to do so on two occasions. However, on 8 June 2021, the respondents simply filed a supplementary affidavit by the acting CEO, to which the applicant filed a notice of irregular proceedings stating that the purported supplementary affidavit was an irregular proceeding which stood to be set aside. Further opportunities were given to the respondents to address the issue of authority, but they failed to file anything. On 7 December 2021, the respondent filed a notice of motion and a supporting affidavit which was not signed nor commissioned. The respondent once again opposed the purported application on the basis that there was no application filed before court. The respondent later filed a signed affidavit.
USIKU had to determine whether there was evidence before court that the third respondent had the authority to oppose the application on behalf of the first respondent, and held that:
- There was no resolution passed by the first respondent authorizing the third respondent to act on its behalf and opposed the applicant’s review application.
- It is trite law that, where a litigant is an artificial person, some evidence must be placed before the court to show that such an artificial person has duly resolved to institute or oppose the proceedings and that the proceedings are being instituted or opposed at its instance.
- The best evidence that the proceedings have been properly authorized is normally provided by an affidavit made by an official representing the artificial person, annexing a copy of a resolution to that effect. Though not necessary in every case, the court must decide in each case whether enough evidence has been placed before it to warrant a conclusion that it is the artificial person which is litigating and not some unauthorized person purporting to act on its behalf.
- The onus was on the third respondent to prove that he was duly authorized. He did not allege that he had authority and further repeatedly failed to provide proof.
- The applicant was justified to question the authority of the third respondent to oppose the application.
As a result, the point in limine succeeded.
Windhoek Wanderers v Municipal Council of Windhoek NAHCMD 25 August 2022