The
only issue left for determination is one of assumption of agency.
The
application under HC933/05 was filed by Messrs Marondedze, Nyathi and Partners.
At the time of the hearing of this application, they had not renounced agency. Messrs
Marondedze and Partners only assumed agency in relation to case HC1884/05 and
then purported to have mandate to apply for the dismissal of the application
under HC933/05.
It
is argued that they are not legal practitioners of record in that matter.
Can
they simply dismiss a matter they are not party to?
The
founding affidavit under case number 1884/05 was deposed to by the first
respondent, duly represented by the latter legal practitioner, who filed an
assumption of agency. The only issue raised by the applicants is that there was
no renunciation of agency preceding the assumption. It is clear that at the
time Marondedze and Partners assumed agency [the assumption of agency makes
reference to case number HC1884/05 but properly cross-referenced case number HC933/05]
the law firm Marondedze, Nyathi and Partners had ceased to exist. In reality,
it was more of a change of name. As Marondedze, Nyathi and Partners had ceased
to exist, it would be difficult, if not impossible, to get a renunciation. Order
2 Rule 6, High Court Rules, 1971 is only applicable when the legal practitioner
of record is still available. In the circumstances the first respondent's legal
practitioners acted correctly by merely assuming agency in terms of Rule 5.
In
any event, this court has the power to condone failure to comply with the
provisions of Rule 5 or Rule 6 at the time of institution of the proceedings
where there is ratification and there is no prejudice to the other party – Afglow
Land and Cattle Co. (Pvt) Ltd v Napier 1971(1) SA 430 (RA) and City of
Salisbury v Peche 1979 RLR 65 (G). There is no prejudice suffered by the
applicants as they served all process on the latter legal practitioners.
In
the circumstances, the application for re-instatement cannot succeed. In any
event, the applicants are within their rights to lodge the claim against the
estate.
Accordingly, the application for re-instatement
is dismissed with costs.
