THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No. 399/97
In the matter between:
ROBERT THORNTON SMITH
Appellant
and
KWANONQUBELA TOWN COUNCIL
Respondent
Coram:
SMALBERGER, GROSSKOPF, HARMS, OLIVIER
JJA and MADLANGA AJA
Heard:
19 AUGUST 1999
Delivered:
10 SEPTEMBER 1999
Key words: Civil procedure - lack of locus standi - ratification - leave to
appeal and balance of convenience
JUDGMENT
HARMS JA/

HARMS JA:
[1] The point in this appeal relates to a point in limine - it
concerns the locus standi (in the sense of a lack of authority) of Mr
Norman Watson who instituted these proceedings in the Eastern Cape
High Court, purportedly acting on behalf of the Town Council of
Kwanonqubela.  Pursuant to a stated case which dealt with this objection
only, Erasmus J came to the conclusion that Watson had the necessary
locus standi, and he dismissed the objection with costs.  The order is
appealable (cf Caroluskraal Farms (Edms) Bpk v Eerste Nasionale Bank
van Suider-Afrika Bpk 1994 (3) SA 407 (A)) and Erasmus J granted the
necessary leave.
[2] During the period of political upheaval and social unrest
which preceded the 1994 election, the appellant, Mr R T Smith, came
under pressure from the local civic organization.  He was at the time the
chief executive officer of the Town Council.  The civics also demanded

that the town councillors should resign en masse.  On 27 July 1993, the
Town Council adopted a resolution entitling Smith to take early retirement
due to political pressure.  Part of the resolution was to the effect that the
Council would pay him his full salary and other benefits for a further thirty
months, that his pension would be paid up and that certain car allowances
be paid to him. During the same meeting all the councillors resigned.
[3] At the time the Administrator of the Cape Province had
delegated power  to authorise any person to exercise, perform or fulfil the
rights, powers and functions of a local authority if, due to the number of
vacancies on the council, it was unable to act (s 29A of the Black Local
Authorities Act 102 of 1982; it was introduced by the Laws on Co-
operation and Development Second Amendment Act 90 of 1985).
Watson, an employee of the Provincial Administration, was duly
appointed in terms of this provision, initially from 6 August 1993 to 30

November 1993 and then from 1 December 1993 until 31 May 1994.
[4] The second term of his appointment was interrupted by the
repeal of the Black Local Authorities Act (see the Local Government
Transition Act 209 of 1993 which commenced on 2 February 1994).  In
spite of the repeal, any council or committee established under the
repealed act was to continue to exist (s 13(2) of the latter Act).  Erasmus
J held that Watson was neither a “council” nor a “committee” and that,
consequently, his authorisation to act in the stead of the Town Council
had lapsed on 2 February 1994.  In the end all of this is of academic or
historical interest only because the action taken by Watson in the name of
the Town Council, and which is the subject of the dispute, took place on
16 August 1994, a date well after the expiry of the second term of his
authorisation.
[5] On that date an application was launched in the name of the

Town Council, citing Smith as the respondent and praying for the setting
aside of the Town Council's resolution and for repayment of certain sums
of money paid to Smith according to the terms of the resolution. The
deponent to the founding affidavit was Watson who alleged that he was
duly authorised to act on behalf of the Town Council in bringing the
application by virtue of his appointment under s 29A of Act 102 of 1982
(dealt with in par [3] above).
[6] Apart from answering the allegations on the merits, Smith
raised the issue of Watson's lack of locus standi.  In his replying affidavit
Watson attempted to meet the point by alleging that his appointment had
in fact been extended from 1 June 1994, but with the change of
government the extension had not yet been published.  In the event no
appointment was published but by letter dated 29 November 1994 it was
recorded that authority had been granted for Watson's appointment as a

commissioner of the Town Council in terms of s 28(1) of the Municipal
Ordinance 20 of 1974 (Cape) for the period 1 June 1994 to 30 September
1994, covering the date of the institution of the application.
[7] Section 28(1) of the Ordinance empowers the Administrator
(now the Premier of the Province) to appoint a commissioner to act as the
council of a municipality if, at any time, the municipality has no
councillors.  The purported application of the provision gave rise , i a, to
the question whether the section by necessary implication authorises an
appointment with retroactive effect.  Erasmus J held in the affirmative and
had
"no difficulty in applying the fiction that at 16 August 1994 he
[Watson] had locus standi in judicio to bring the present
application, even though he acquired that status ex post facto.  It is
not a case of the Administrator ratifying Watson's act, or of him
validating Watson's void or voidable act (Baxter op cit 363-364);
but of Watson retrospectively acquiring the competency de novo to
have instituted the proceedings on 16 August 1994."

The true respondent before us is therefore the Transitional Council, but the necessary
substitution has not yet taken place.  Nothing turns on the point.
On this basis the objection to Watson's locus standi was dismissed.
Although s 28 may by necessary implication authorise an appointment
with retroactive effect, I have some difficulty in appreciating the
difference between such an appointment and a ratification of actions taken
by the commissioner during that period.  For reasons that will become
apparent, I do not deem it necessary to decide the case upon this basis.
[8] In the course of the recent constitutional development the
Town Council was incorporated into the Alexandria Transitional Council
and it is not in dispute that the rights and duties of the Town Council
devolved upon the Transitional Council.1  The latter, at a meeting of 2
December 1994, discussed this case (according to the minutes) "in full"
and resolved to proceed with it.  This, it is alleged by the Town Council
in the stated case, "constituted sufficient authorisation of Watson's locus

standi to represent the Applicant".  I proceed to consider the validity of
this submission which raises the question whether  Watson's unauthorised
institution of the proceedings was capable of ratification.
[9] It is in general essential for a valid ratification "that there
must have been an intention on the part of the principal to confirm and
adopt the unauthorised acts of the agent done on his behalf, and that the
intention must be expressed either with full knowledge of all the material
circumstances, or with the object of confirming the agent's action in all
events, whatever the circumstances may be" (Reid and Others v Warner
1907 TS 961 at 971 in fine - 972).  Counsel for Smith submitted that there
is no evidence that the councillors of the Transitional Council had
knowledge of the fact that Watson's action had been unauthorised and,
consequently, that the purported ratification was of no effect.  I do not
think, on the wording of the stated case, that this argument is open to

Smith.  In any event, the minutes of the meeting state that the matter was
discussed in full and, further, the decision to proceed with the case
evinces a clear intention to ratify whatever action was taken, irrespective
of the legal niceties involved.
[10] The next attack upon the purported ratification was along
these lines:  Watson's contentious act was an administrative one; it was
not authorised by law; an unauthorised act is invalid; an invalid act cannot
be ratified.  The argument, I fear, already breaks down at the first
proposition and it becomes unnecessary to consider the others.  The
launching of legal proceedings is not an administrative act but a
procedural one open to any member of the public.  Watson apparently
believed on insubstantial grounds that he had the necessary authority to
act on behalf of the Town Council.  He was wrong.  His expressed
intention was to act on behalf of the Town Council and not on his own

behalf.  It is a general rule of the law of agency that such an act of an
“unauthorised agent" can be ratified with retrospective effect (cf
Uitenhage Municipality v Uys 1974 (3) SA (E) 806H-807H).
[11] It was further argued that, after an objection has been taken
to the authority of a person to act on behalf of another, reliance may not
be placed upon a ratification that did not exist when the objection was
taken.  The same issue arose in Moosa and Cassim NNO v Community
Development Board 1990 (3) SA 175 (A), and in the course of the
judgment Nicholas AJA (at 181B-C) noted that counsel had "conceded,
correctly in my opinion" that he could not urge upon this Court that the
rejection of the same submission in the court below was wrong.  I would
have thought that Nicholas AJA, as he was wont to do, expressed himself
clearly and said what he had in mind, namely that there was no merit in
the point.  Jansen J thought otherwise (South African Allied Workers'

Union and Others v De Klerk NO and Others 1990 (3) SA 425 (E) 431E-
433E) but Conradie J, with the customary deference, held that Jansen J's
interpretation was artificial (Merlin Gerin (Pty) Ltd v All Current and
Drive Centre (Pty) Ltd and Another 1994 (1) SA 659 (C) 661E).  Lest
there be any future doubt about the matter, this judgment holds that the
point is bad for the reasons that follow.
[12] Halsbury's Laws of England states since its first edition that:
"Ratification, to be effective, must be made either within a period
fixed by the nature of the particular case, or within a reasonable
time, after which it cannot be ratified to the prejudice of a third
person."
(1st ed vol 1 par 384; 4th ed reissue vol 1(2) par 78).  This, the full court
in Finbro Furnishers (Pty) Ltd v Peimer 1935 CPD 378 at 380 found,
justified the general rule that when an act has to be done within a fixed
time, performance of that act by an unauthorised agent cannot be ratified

by the principal after the lapse of such fixed time to the prejudice of
another who has acquired some right or advantage from non-performance
within the fixed time.  As was pointed out rather pertinently in Garment
Workers' Union of the Cape and Another v Garment Workers' Union and
Another 1946 AD 370 at 378, the emphasis in that case was on acts which
have to be performed within a fixed time.  Both these cases dealt with
ratification of the unauthorised prosecution of appeals.  In Finbro the
ratification was held to be ineffectual because it took place after the
period fixed; in Garment Workers' Union the correctness of Finbro was
not considered because the ratification concerned took place within the
fixed period.  In the present case there was no fixed period within which
the proceedings in the court below had to be instituted, nor is it a
requirement that they have to be instituted within a reasonable time.
Neither the rule as formulated by Halsbury nor as restated in Finbro is

thus of application to the present case.
[13] Two principles, if not one, were mentioned in Jagersfontein
Garage & Transport Co v Secretary, State Advances Recoveries Office
1939 OPD 37: ratification cannot affect vested rights previously acquired
by third parties (at 41 in fine) and a person ratifying cannot by his
unilateral act bridge the interval so as to prejudice others, not parties to
the transaction (at 46 in fine - 47). In the context of the case the right
involved concerned ownership and the third party whose interest was at
stake was someone other than the agent, the principal and the other party
to the transaction.  Fisher J (at 41) pointed out that one authority,
Bowstead on Agency par 30 (probably the 8th ed) limited the proposition
to proprietary rights.  Bowstead has since wavered slightly and has
extended the rule to possessory rights vested in third parties (Bowstead &
Reynolds on Agency 16th ed art 20).  Windscheid  ( Lehrbuch des

Pandektenrechts par 74 presumably at vol 1 p 371), the other authority
quoted by Fisher J, also deals with substantive rights only and it is
apparent from his discussion that the third party he had in mind is not the
other party to the transaction.  Peckius De Regulis Juris X 16-17, also
relied upon, is too cryptic for any conclusion.  Van Jaarsveld Die Leerstuk
van Ratifikasie in die Suid-Afrikaanse Verteenwoordigingsreg (LLD
thesis, Pretoria, 1971) p 489-492, on the other hand, is quite clear that the
rights that may not be affected are substantive rights of a party other than
the third party to the transaction which, in the instant case, is the
litigation.
[14] Apart from the fact that no substantive right of a third party
is affected by the ratification, the next question is if any vested right of
Smith was affected or prejudiced.  Kannemeyer J in South African Milling
Co (Pty) Ltd v Reddy 1980 (3) SA 431 (SE) at 437F held that a

respondent acquired "a right to move for the dismissal of the application
on the ground of lack of locus standi".  Goldstone J had difficulty with
this because to him the so-called right is "hardly what one would envisage
as constituting a 'vested right'."  (See Baeck & Co SA (Pty) Ltd v Van
Zummeren and Another 1982 (2) SA 112 (W) 119H.)  Conradie J in
Merlin Gerin agreed with Goldstone J, reasoning that the right involved
is no more than the "right" to take a point and to require a court not to turn
a good point into a bad one.  I am in general in agreement with the
analysis and conclusion reached in Merlin Gerin.  Apart from making
perfectly good sense and being practical, it is legally sound.  A party to
litigation does not have the right to prevent the other party from rectifying
a procedural defect.  Were it otherwise, one party would for instance not
be entitled to amend a pleading, especially not after the filing of a valid
exception.  The ratification in the present instance did not affect any

substantive rights of Smith.
[15] In South African Milling (at 436F-437C) the matter was also
approached from a procedural point, namely that a party is not entitled to
make out a case in reply and that a ratification relied upon in reply
infringes this rule.  This part of the ratio is strictly speaking not apposite
to the present case because the issue here was decided upon a stated case
which did not raise this point.  It remains, however, in view of persistent
difficulties in this regard, necessary to emphasise that this Court in Moosa
and Cassim NNO has clearly adopted as correct the refutation in Baeck
& Co (at 114E-119B) of the approach, and to state that I fully subscribe
to that view .  The rule against new matter in reply is not absolute (cf Juta
& Co Ltd and Others v De Koker and Others 1994 (3) SA 499 (T) 511F)
and should be applied with a fair measure of common sense.  For instance,
in the present case, the point provided no material or substantial

advantage to Smith - at least, counsel could not point to any - and it
simply at great cost postponed the day of possible reckoning (cf Merlin
Gerin at 660I-J; National Co-op Dairies Ltd v Smith 1996 (2) SA 717 (N)
719E-F).
[16] Before concluding this judgment and dismissing the appeal,
I wish to draw attention to another procedural matter which is often
overlooked in the grant of leave to appeal and which causes delay and
unnecessary costs.  In Zweni v Minister of Law and Order 1993 (1) SA
523 (A) 531D it was said that, in granting leave to appeal, a court should
do more than consider whether the jurisdictional requirements for leave
are present:
"But, if the judgment or order sought to be appealed against does
not dispose of all the issues between the parties the balance of
convenience must, in addition, favour a piecemeal consideration of
the case.  In other words, the test is then 'whether the appeal - if
leave were given - would lead to a just and reasonably prompt

resolution of the real issue between the parties'."
I am satisfied that if this consideration had been put to the judge below,
he would not have granted leave to appeal before the proceedings had
been terminated.
The appeal is dismissed with costs.
__________________
L T C HARMS
JUDGE OF APPEAL
Concur:
SMALBERGER, JA
GROSSKOPF, JA
OLIVIER, JA
MADLANGA, AJA