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[2012] ZAECPEHC 36
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Frost NO and Others v Vermaak (3754/2011) [2012] ZAECPEHC 36 (1 June 2012)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case No: 3754/2011
In the matter between:
SAMUEL PAUL FROST N.O
SUNETTE FROST N.O
KARIN EVELINA VERMAAK N.O
SONJA BOSHOFF N.O
DANIEL JOHANNES SMIT N.O
(in their capacity as trustees of
Die Vermaak Trust)
…...............................
Applicants
And
PERCIVAL ORSMOND HUGH VERMAAK
…..............................................
Respondent
Coram:
Chetty, J
Date Heard:
31 May 2012
Date Delivered:
1 June 2012
Summary:
Practice
–
Application for attachment ad confirmandam
jurisdictionem – Only defence raised one of res judicata –
Issue disposed
of in Magistrates Court – Magistrates Court
application ad fundandam jurisdictionem fatally defective –
Affidavit not
attested – Plea of res judicata dismissed –
Application granted.
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
[1] This is the return day of an
ex
parte
application in which the applicants seek a final order for
the attachment of certain immovable properties pending the
institution
of an action against the respondent for payment of
certain sums of money which the applicants allege are due to them. An
order
for attachment, whether
ad fundandam jurisdictionem
or
ad confirmandam jurisdictionem
serves to provide an
incola
with property against which he/she can execute the judgment in the
event of the contemplated action succeeding. The respondent
opposes
the relief sought.
[2] The requirements for obtaining an
order for attachment whether
ad fundandam
and/or
ad
confirmandam jurisdictionem
, shorn of excess verbiage, are that –
The applicant has a
prima facie
cause of action against the defendant;
The defendant is a
peregrinus
;
and
The property is within that area,
alternatively, within the Republic of South Africa.
In
Italtrafo
SpA v Electricity Supply Commission
1
King AJ emphasized
that in such applications “
the
matter in issue is the attachment and not the cause of action
”
It is trite law
that once the requirements for an order are met a court had no
discretion to refuse to grant an order. In
Naylor
and Another v Jansen: Jansen v Naylor and Others
2
Nicholas AJA
expounded the position as follows –
“
'In
our law, once an
incola
applicant
(plaintiff) establishes that,
prima
facie
,
he has a good cause of action against the peregrine respondent
(defendant), the Court must, if other requirements are satisfied,
grant an order for the attachment
ad
fundandam
of
the property of the peregrine respondent (defendant). It has no
discretion (Pollak
The
South African
Law
of Jurisdiction
at
64, citing
Lecomte
v W and B Syndicate of Madagascar
1905 TS
696
at 702). The Court will not inquire into the merits or whether
the Court is a convenient forum in which to bring the action (
Pollak
(ibid
)).
Nor, it is conceived, will the Court inquire whether it is ''fair''
in the circumstances for an attachment order to be granted.'”
The position is no
different where the attachment sought is one
confirmandam
jurisdictionem
.
[3] The relief
sought is resisted by a claim of
res
judicata
.
It is contended that the relief is in substance and form identical to
that previously brought by the applicants in proceedings
before the
Magistrates Court at Hankey and the issue disposed of by a judgment
in the respondent’s favour. It is indeed so
that on 3 December
2009 the applicants sought an order of attachment
ad
fundandam
jurisdictionem
over the same
properties. It is common cause that the document accompanying the
notice of motion, though signed by the parties whose
names appeared
therein, was neither sworn to nor attested. Rule 57(2)(a) of the
Magistrates Court Rules provides that an application
for an order of
attachment of property under section 30bis of the Act shall be
supported by an affidavit which, in common parlance,
is a statement
in writing sworn to before someone who has authority to administer an
oath. The documents annexed to the applicants’
notice of motion
under the guise of affidavits were thus clearly not affidavits as
contemplated by the rules and the defect rendered
the documents
incomplete and inoperative as affidavits. The application before the
magistrate was thereby rendered fatally defective
and the application
ought to have been struck from the roll. The fact that the magistrate
nonetheless proceeded to hear the matter
and to deliver lofty legal
pronouncements on the points raised
in
limine
was
an exercise in futility and meaningless. The judgment is a legal
nullity.
[4] In any event
and assuming in favour of the respondent that there was due
compliance with provisions of the rule the issue which
served before
the magistrate was the attachment and not the merits of the action. A
defence that a claim has become prescribed
is related to the merits
of the action itself and must be raised by special plea and no other
way. This statement of law was emphasized
by Goldstone J in
Union
and SWA Insurance Co v Hoosein
3
with the rider
“
this
is presumably for the reason that a plaintiff may wish to replicate a
defence to the claim of prescription, for example, an
interruption”
.
[5] The
respondent’s plea of
res
judicata
can
accordingly not be sustained. In the result the following order will
issue –
The rule nisi is confirmed and an
order made for attachment ad
confirmandam jurisdictionem
of
the following properties –
. An undivided ⅓ (one third)
share of portion 4 of the Farm Geelhoute Boom No 21, situated in
Kouga Municipality, Division
of Humansdorp, Province Eastern Cape
IN EXTENT: 45,0799 (FORTY FIVE comma
ZERO SEVEN NINE NINE) hectares
Held by Deed of Transfer No. T
40302/1986
An undivided ⅓ (one third)
share of portion 6 of Farm Geelhoute Boom No 21, situated in Kouga
Municipality, Division of
Humansdorp, Province Eastern Cape
IN EXTENT: 142,2495 (ONE HUNDRED AND
FORTY TWO comma TWO FOUR NINE FIVE) hectares
Held by Deed of Transfer No. T
40302/1986
The respondent is ordered to pay the
applicants’ costs
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo the Applicants: Adv Mullins
instructed by Goldberg & Victor, 2
nd
Floor, First
National Bank Building, 582 Govan Mbeki Ave, North End, Port
Elizabeth, Tel (041) 484 3346, Ref: Mr Victor
Obo the Respondent: Adv Pretorius
instructed by Jacques Du Preez, 96 Mangold Street, Newton Park, Port
Elizabeth, Ref: Mr Du Preez
1
1978
(2) SA 705
(W)
2
2006
(3) SA 546
(SCA)
3
1982
(2) SA 481
(W)