Masako v Masako and Another

The appellant and first respondent were formerly married and divorced in 2013 under a settlement agreement dividing their joint estate. Despite this, the first respondent later applied in the Regional Court for the appointment of a receiver and liquidator of the joint estate. The appellant opposed the application through her attorney, Ms Nkagiseng Moduka, but a default order was granted against the appellant in her absence due to an administrative error in the attorney’s office. The appellant then sought rescission of the default judgment. Ms Moduka deposed to the founding affidavit explaining the error. The first respondent raised a point in limine, arguing that the attorney lacked locus standi and authority to depose to the affidavit. The Regional Court upheld this objection, and the High Court on appeal confirmed that ruling, holding that the attorney lacked standing and authority. The appellant appealed further to the Supreme Court of Appeal.

The appeal was upheld. The order of the High Court was set aside and replaced with an order upholding the appeal with costs, dismissing the point in limine with costs, and remitting the matter to the Regional Court, Garankuwa, for determination of the merits of the rescission application.

The judgment clarifies South African procedural law by reaffirming the distinction between locus standi, authority to institute proceedings, and authority to depose to an affidavit. It confirms that attorneys may depose to affidavits based on facts within their knowledge without separate client authorisation and that challenges to an attorney’s authority must follow prescribed procedural rules. The case is significant for preventing technical objections that obstruct access to justice.