This blog was co-authored by Sebenzile Magagula, Candidate Attorney.

A claim was dismissed by the High Court on the grounds that the respondent lacked the requisite legal standing to litigate on behalf of her husband who was the party to the contract sued on.

The claimant sued for delictual damages arising from failure by the defending attorneys to institute timeous action against a construction company for breach of contract in failing to do construction work at the family residence resulting in prescription of the claim against the construction company.

The claimant was married out of community of property and the property on which the construction work was to be done and not completed was registered in her husband’s name.

The claimant had initially presented herself as a litigant with the right to be heard in her own cause and not that of her husband and only later sought to establish legal standing by virtue of a power of attorney from her spouse.

In another June 2023 judgment, the claimant, a company under business rescue at the time, instituted action in its name and on the  instructions of its directors against the respondents.

The claimant’s attorneys had sought the approval of the business rescue practitioner prior to instituting the action, as required by Section 137(2)(b) of the Companies Act 71 of 2008 (the “Act”), but it later transpired that the business rescue practitioner’s representative may have confused the action with another and accordingly, the business rescue practitioner may have not consented to the proceedings.

The business rescue practitioner having become alert to the confusion, signed a power of attorney and also ratified the steps that had already been undertaken by the attorneys as per Section 137(4) of the Act, to give the claimant the requisite legal standing.

The Supreme Court of Appeal held that while legal standing requires that a plaintiff have a direct and adequate interest in the subject matter of the litigation, standing is not just a procedural question. It is also a question of substance, which must be dealt with on the facts of each case. The question that had to be answered is whether the events as related to the claimant constituted a wrong against the defendant.

On the facts, the appeal court held that the business rescue practitioner had consented to the action well before its institution and had moved to ratify the steps already taken upon becoming aware of the confusion. Therefore, the claimant had legal standing.

Both cases confirm that while legal standing must be established by litigating parties, it is not only a procedural question. It is also a question of substance which must be established by the parties from the onset of the proceedings on the facts applicable.