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[2010] ZAGPJHC 95
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Fleet Africa (Pty) Ltd v Cargill Cotton Ginners Ltd (2007/1470) [2010] ZAGPJHC 95 (26 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE No.
2007/1470
DATE:26/10/2010
Reportable
in the electronic law reports only
In the matter
between:
FLEET AFRICA
(PTY) LTD
.................................................
Plaintiff
and
CARGILL COTTON
GINNERS LTD
....................................
Defendant
____________________________________________________________
JUDGMENT
WILLIS J:
[1]
The plaintiff claims some R2, 8 million from the defendant arising
from transport and other logistical services allegedly rendered
to
the defendant in collecting raw cotton from depots in Zambia and
delivering it to a ginnery in Chipata, Zambia for processing.
The
evidence was that, by and large, cotton in Zambia is farmed by
smallholders holding between one and ten hectares of land. These
farmers take their raw cotton to depots wherefrom it is collected and
taken to various ginneries for processing before export.
The alleged
agreement between the plaintiff and the defendant was concluded
partly in writing and partly orally.
[2]
The defendant has raised a special plea as to the lack of
jurisdiction of this court to hear the matter. The parties agreed
that, as the special plea, if successful, would be dispositive of the
matter, the special plea should be considered first and separately
from the plea over on the merits. It is the special plea that falls
for determination before me.
[3] The lack of
jurisdiction was pleaded by the defendant on the following grounds:
the defendant is
a company registered in Zambia with its registered office in Zambia;
the plaintiff’s
registered office is in Pretoria;
the plaintiff’s
principal place of business is in Pinetown, Kwazulu – Natal;
the alleged
agreement, if indeed it was concluded, was concluded in
Kwazulu-Natal;
the
breach of the agreement, if such indeed occurred, would have been in
Zambia;
“
the
defendant did not reside in, and was not, in the area of
jurisdiction of this Court within the meaning of section 19 (1) of
the Supreme Court Act, 1959”.
[4] Various
witnesses on behalf of both the plaintiff and the defendant testified
before me over two days concerning the special
plea.
[5]
“Cargill Cotton” is one of the “big names” in
the cotton industry world-wide. It distinctive logo, bearing
this
name, is a registered trademark all over the world, including South
Africa. Cargill Cotton operates in innumerable countries
around the
world. In does so in the manner typical of multinational
corporations: it registers as a local company in the different
countries in which it operates, with one hundred percent of the
shares in that local company being held either directly by the
ultimate holding company or through a hierarchy of holding companies,
culminating in this ultimate holding company. The ultimate
holding
company in the case of Cargill Cotton is Cargill Incorporated, a
company registered and incorporated in the United States
of America.
Cargill Cotton collectively is one of the “big three”
cotton merchants in the world. There can be no question
that the
defendant is a Zambian company, if for no other reason than that its
registered office is in Zambia and it carries on
extensive business
in that country. It is therefore a foreign company. Cargill Cotton
operates in South Africa under the name Cargill
RSA (Pty) Ltd. It has
been duly registered and incorporated in this country accordingly. It
is common cause that Cargill RSA (Pty)
Ltd, at all material times,
has operated from an office in Fourways which falls within the area
of jurisdiction of this court.
Mr Gerhardus Kotze, who acted on
behalf of the defendant at the time of concluding the alleged
agreement, was, at the time of
doing so, employed by Cargill RSA
(Pty) Ltd as the “country cotton manager, Zambia”. Most
of his working hours were,
at the time, spent in this office of
Cargill Cotton in Fourways.
[6]
It is quite clear from the evidence all the witnesses that Cargill
Cotton’s African operations, including not only Zambia
but also
Malawi, Zimbabwe, Tanzania and Kenya were, at all material times,
including the present time, centrally controlled or
“managed”
from South Africa, mainly from this office in Fourways. This control
extends to giving the defendant logistical
support. All the key
witnesses for the parties, relating to the alleged transaction, live
here in South Africa and within easy
commuting distance of this
court.
[8]
In
Appleby
(Pty) Ltd v Dundas Ltd
1
Hoexter
J (as he then was) found that the defendant which was a foreign
company, registered in England and with its registered office
in
England was amenable to the jurisdiction of the Witwatersrand Local
Division by reason of the fact that it carried on business
at a
branch office in Johannesburg. Hoexter J was interpreting section 5
of the Administration of Justice Act, No. 27 of 1912,
the
predecessor of section 19 of the Supreme Court Act, No 59 of 1959,
having particular regard to the meaning of the word “reside”.
He held that “In my opinion it is so amenable in respect of any
cause of action arising out of business carried on at its
Johannesburg branch”.
2
Hoexter J stressed the importance of commercial convenience in coming
to his conclusion and referred, with approval, to what Lord
St
Leonards said in
Carron
Iron Co v Maclaren
3
:
The
corporation cannot have the benefit of a place of business here
without yielding to the persons with whom it deals a corresponding
advantage.
4
The
Appleby
decision
was referred to with approval in the case of
Bisonboard
Ltd v Braun Woodworking Machinery (Pty) Ltd
.
5
I share the view of Kuny AJ in
Tschilas
and Another v Touch Line Media (Pty) Ltd
6
that,
when it comes to jurisdiction, the test is really whether the
defendant (or respondent, as the case may be) has a sufficient
“presence” to justify the court having jurisdiction.
Similar views are apparent from
Bid Industrial Holdings (Pty) Ltd v Strang and Another (Minister of
Justice and Constitutional Development, Third Party).
7
Indeed, it seems to me that it is clear that the Supreme Court of
Appeal has, since at least the
Bid
Industrial Holdings
case,
adopted a more relaxed view as to jurisdiction and that
considerations of appropriateness and convenience must prevail. I
am
satisfied that, against the background of the facts in this case,
there is a sufficiently close linkage between the defendant’s
Zambian operations and the business conducted from Cargill Cotton’s
offices in Fourways to justify this court having jurisdiction
to
determine the dispute between the parties. The defendant has a not
insubstantial place of business at Fourways and therefore
“resides”
within the area of jurisdiction of this court.
[9]
The defendant complains that the plaintiff, in its particulars of
claim, merely alleged that the defendant had “its principal
place of business” at Fourways and did not allege that is
“residing” there. Nevertheless, as I have mentioned
in
paragraph [3] above, the defendant itself pertinently raised the
issue of residence (within the meaning of the word “residing”
in section 19 (1) (a) of the Supreme Court Act) in its special plea
objecting to the jurisdiction of this court. Counsel for the
defendant submitted that, having failed to allege that the defendant
resides within the jurisdiction of this court (within the
meaning of
section 19 (1) (a) of the Act), the defendant could not rely on this
fact. The plaintiff has, in the meantime, since
the hearing of the
matter, served a notice of intention to amend its particulars of
claim to make the allegation which the defendant
claims is fatally
missing. The question of whether or not the intended amendment is to
succeed has not yet been determined. I shall
therefore decide the
matter on the basis that there is no such notice of intention to
amend before me.
[10]
I share the view of Stegmann J in
Sibeko
v Minister of Police and Others
8
that a convenient discussion of the common law position with regard
to special pleas is set out in the judgment of Murray CJ in
Reuben
v Meyers.
9
In
Reuben’s
case
Murray CJ, in turn, refers to the most helpful analysis given by
Innes CJ in
Western
Assurance Co v Caldwell’s Trustee
.
10
In this case Innes CJ refers to the old authorities, in particular
Merula
,
Vroman
,
Voet
,
Groenewegen
and
Carpzovius
.
11
The following seems clear:
(i)
An objection to jurisdiction, known as a declinatory exception, must
be raised before
litis
contestatio
;
(ii)
An exception in the practice of the Courts of Holland was not used in
the narrow sense which this term is now normally understood
in South
Africa but would cover “a number of what we call special
pleas”;
(iii)
An exception (including one in the broader sense of this term) of
must be pleaded and proved.
[11]
In
Masuku
and Another v Mdlalose and Others
12
the
Supreme Court of Appeal made it clear that a special plea is in the
nature of a special defence which it is incumbent upon a
defendant to
prove. In
Durbach
v Fairway Hotel Ltd
13
Tredgold J (as he then was) said that a “special defence must
be specifically and unambiguously pleaded”. Shortly
before
that Tredgold J said that “the whole purpose of pleadings is to
bring clearly to the notice of the Court and the parties
to an action
the issues upon which reliance is to be placed”.
[12]
The defendant has declined to submit or consent to the jurisdiction
of this court on the basis that it does not reside within
the area of
this court’s jurisdiction within the meaning of section 19 (1)
(a) of the Supreme Court Act. Accordingly, the
defendant having
raised the issue itself in its special plea, must stand or fall by it
for this very reason. It cannot complain
that it faced “trial
by ambush”. The contention advanced by the defendant that the
plaintiff’s case is fatally
defective because it failed to
allege that the defendant “resides” within the area of
this court’s jurisdiction
is without merit. On the evidence
before me, the defendant has fallen. The special plea cannot succeed.
[13] Judgment is
given in favour of the plaintiff against the defendant as follows:
The defendant’s
special plea is dismissed with costs.
DATED
AT JOHANNESBURG THIS 26
th
DAY OF OCTOBER, 2010.
N.P. WILLIS
JUDGE OF THE
HIGH COURT
Counsel
for the Plaintiff:
A.B.D.
Choudree.
Counsel
for the Defendant:
A.P.
Rubens
SC
(with him,
G.
Kairinos
)
Attorneys
for the Plaintiff: Vash Choudree & Associates
Attorneys
for the Defendant: Werksmans
Date
of hearing: 11
th
,
12
th
and 13
th
October, 2010.
Date
of judgment: 26
th
October, 2010
1
1948
(2) SA 905
((E.D.L.D)
2
At
p910
3
[1855] EngR 700
;
5
H.L.C. 416
at p450
4
At
911
5
[1990] ZASCA 86
;
1991 (1) SA 482
(A) at 497C-D
6
2004 (2) SA 112
(W) at 119H
7
2008 (3) SA 355
(SCA) at paragraphs [55] to [57]
8
1985 (1) SA 149
(W) at 158C
9
1957
(4) SA (SR)
10
1918 AD 262.
In
Reuben’s
case Murray CJ refers to the judgment of Innes CJ at 58-60.
11
At
270-1.
12
1998 (1) SA 1
(SCA) at 11B-C
13
1949 (3) SA 1081
(SR ) at 1082