Society of Lloyds v Price ; Society of Lloyd's v Lee' (327/05) [2006] ZASCA 88; 2006 (5) SA 393 (SCA) (1 June 2006)

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[2006] ZASCA 88
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Society of Lloyds v Price ; Society of Lloyd's v Lee' (327/05) [2006] ZASCA 88; 2006 (5) SA 393 (SCA) (1 June 2006)

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T
HE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 327/05
Reportable
In the two
matters between
Society of lloyd’s
Appellant
and
OWEN JOHN price
Respondent
TPD
CASE NO. 17040/03
Society of lloyd’s
Appellant
and
pAUL lee
Respondent
TPD
CASE NO. 20764/03
Coram
:
Howie P,
Scott, Zulman, Van Heerden JJA, et Cachalia AJA
Heard: 8 May 2006
Delivered: 1 June 2006
Summary:
Prescription –
extinctive prescription – conflict of laws –whether lex fori,
South African law, determined issue of prescription
and not lex
causae, English law – recognition and enforcement by South African
court of English judgment – international jurisdiction
of English
court – whether enforcement of English judgment contrary to South
African public policy.
Neutral citation: This judgment may be referred to
as
Society of Lloyd’s v Price; Society of Lloyd’s v Lee
[2006] SCA 87 (RSA)
JUDGMENT
VAN HEERDEN JA:
Introduction
In June 2003, the
appellant
(Lloyd’s)
instituted separate claims for provisional sentence against the two
respondents (Price and Lee, referred to collectively
as ‘the
defendants’). Both claims were based on default judgments
obtained by Lloyd’s against the two defendants in the
High Court
of Justice (Queen’s Bench Division, Commercial Court), London,
England on 27 June 1997 (in the case of the defendant
Lee) and 13
October 1997 (in the case of the defendant Price), respectively. In
terms of the English Judgments Act 1838, interest
on these
judgments runs at the rate of 8 per cent per annum. The claims were
dismissed with costs by Mynhardt J in the Pretoria
High Court
on the grounds that they had become prescribed, hence this appeal,
which comes before us with the leave of the court
below.
1
Background
In the provisional sentence summonses Lloyd’s alleged that the
English court was a court of competent jurisdiction by virtue
of
the fact that each defendant had entered into a General
Undertaking, clauses 2.1 and 2.2 of which provide as follows:
‘
2.1 The rights and obligations of the parties
arising out of or relating to the Member's membership of, and/or
underwriting of insurance
business at, Lloyd's and any other matter
referred to in this Undertaking shall be governed by and construed
in accordance with
the laws of England.
2.2 Each party hereto irrevocably agrees that the
courts of England shall have exclusive jurisdiction to settle any
dispute and/or
controversy of whatsoever nature arising out of or
relating to the Member's membership of, and/or underwriting of
insurance business
at, Lloyd's and that accordingly any suit, action
or proceeding (together in this Clause 2 referred to as
''Proceedings'') arising
out of or relating to such matters shall be
brought in such courts and, to this end, each party hereto
irrevocably agrees to submit
to the jurisdiction of the courts of
England and irrevocably waives any objection which it may have now
or hereafter to
(a)
any Proceedings being brought in any such
court as is referred to in this Clause 2 and
(b)
any claim
that any such Proceedings have been brought in an inconvenient forum
and further irrevocably agrees that a judgment in
any Proceedings
brought in the English courts shall be conclusive and binding upon
each party and may be enforced in the courts
of any other
jurisdiction.’
Lloyd’s alleged further that the default judgments obtained by it
were final and conclusive. The background to the obtaining
of these
judgments has been set out fully in the judgment of the court a
quo, and it is accordingly not necessary to repeat this
exercise
for purposes of the present judgment, save to the extent necessary
to contextualise the consideration of relevant issues.
The
basis of the default judgments was Lloyd’s claim against each
defendant for payment of the so-called ‘Equitas premium’
which
is said on
behalf of
Lloyd’s to have arisen ‘in very unusual circumstances’.
During the 1980’s, a considerable number of persons
(including
the defendants) were recruited to become new underwriting members
(so-called ‘names’) of Lloyd’s. Thereafter,
many of them
(together with many existing names) suffered serious losses, in the
main as a result of the underestimation of the
size of the losses
which would be coming into the market. These losses were caused in
large part by claims arising out of asbestosis
litigation in the
United States of America.
Proceedings
instituted by groups of names were largely successful and resulted
in judgments in their favour against members’
agents, managing
agents and even auditors. By 1993, it appeared that Lloyd’s
itself might be at risk of being sued. In order
to resolve the
anticipated ‘avalanche of litigation’ that was threatening to
destroy the Lloyd’s market, Lloyd’s adopted
a ‘reconstruction
and renewal plan’ (‘R & R’). It offered names a
settlement of certain claims in respect of 1992
and prior
underwriting years, such settlement involving a mutual waiver of
claims. A newly formed insurance body known as Equitas
Reinsurance
Ltd (‘Equitas’) undertook to re-insure names’ liabilities
arising out of non-life business written in and before
1992 and to
run-off these reinsured liabilities. Equitas would be funded by
means of moneys paid by Lloyd’s from its Central
Fund and by
premiums paid by all names whose outstanding liabilities were thus
re-insured. Those names who accepted the plan
received financial
benefits in the form of certain debt credits being used to discount
their liabilities in part. Even those
who did not accept the plan
(including the defendants), while they did not receive the said
financial benefits, were nevertheless
obliged to re-insure with
Equitas and pay the premiums.
The
means used by Lloyd’s to implement R & R – and, in effect,
to impose the Equitas contract and the obligation to pay
the
Equitas premium even on those names who rejected the settlement
offer – were summarised by Mynhardt J in the court below
as
follows:
2
‘
[22] In order
to introduce and implement the settlement offer Lloyd’s had to
make use of its statutory powers to make bye-laws.
Members had, in
any event, to enter into a standard form agreement known as the
1986 General Undertaking, which included an undertaking
by the
member to comply with the Lloyd’s Act and any subordinate
legislation made by Lloyd’s thereunder and also with any
direction made by the Council of Lloyd’s and also to become a
party to any agreement as may be prescribed or notified to the
member or his underwriting agent by the council.
The provisions of the General Undertaking
form the basis of the contention of Lloyd’s that it has succeeded
in procuring all
members to become parties to the Equitas contract.
It achieved that, so it contended, by using its statutory powers to
make bye-laws.
In terms of bye-law 20 of 1983 the Council of
Lloyd’s was empowered to appoint a substitute agent to take over
the whole or
any part of a member’s underwriting business.
On 3 September 1996 the Council appointed a
substitute agent, Additional Underwriting Agencies (No 9) Ltd,
“AUA9”, a company
controlled by Lloyd’s, and also based in
London, to take over all non-life business written in or before
1992 for all members.
AUA9 was directed to give effect to the R &
R plan for which provision had been made in 1995 by bye-law 22 of
1995.
[23] In regard to members who have not
accepted the R & R plan Lloyd’s rely on clauses 2.1 and 2.2
of the 1986 General Undertaking
. . . .
In terms of the Equitas reinsurance contract
AUA9 was authorised to accept service of all process on behalf of
members who have
not accepted the R & R settlement plan. It is
on this basis that Lloyd’s contend that the process which was
issued out
of the English Court in London was properly served on
Price and Lee. The writ of summons in each
case was duly served on AUA9 and that
constituted proper service under English law.
[24] The steps that were taken by Lloyd’s
to enable it to sue members, like Price and Lee, who have not
accepted the settlement,
for payment of the “Equitas premium”,
were attacked by various members. All these attacks failed and were
dismissed by the
English Courts.
3
The judgments that were obtained are now final and conclusive and
no further appeals are possible.’
The defendants relied on three
defences in the court a quo, which are also advanced on appeal.
First, that Lloyd’s claims had
become prescribed by virtue of the
provisions of the South African
Prescription Act 68 of 1969
;
second, that the English court did not have international
jurisdiction in terms of South African law to grant the two
judgments,
and third, that it would be against public policy, as
determined by the South African courts, to recognise and enforce
the two
judgments here. As indicated above, Mynhardt J found
against Lloyd’s on the prescription point and accordingly
refrained from
expressing any opinion on the second and third
defences.
The defence of prescription
Lloyd’s claims are based on default judgments obtained in an
English court more than three years, but less than six years,
before the provisional sentence summonses were served on the
defendants in this country. It is common cause that if English law
should be held to govern the issue of prescription, as contended by
Lloyd’s, the claims on the judgments would not have become
statutorily limited (prescribed). In this regard, s 24 of the
English Limitation Act 1980 provides as follows:
‘
24(1) An
action shall not be brought upon any judgment after the expiration
of six years from the date on which the judgment became
enforceable.
(2) No
arrears of interest in respect of any judgment debt shall be
recovered after the expiration of six years from the date
on which
the interest became due.’
If South African law applies, however, as sub­mitted by the
defendants, the claims would have become prescribed after the
lapse
of three years in terms of s 11
(d)
of the Prescription Act
68 of 1969 (‘the Act’), unless the judg­ments of the
English court were regarded as ‘judgment
debts’ within the
meaning of s 11
(a)
(ii) of the Act, in which event the
prescriptive period is 30 years and the claims would not have
prescribed.
English or South African Law?
According
to principles of South African private international law, matters
of procedure are governed by the domestic law of the
country in
which the relevant proceedings are instituted (the
lex fori
).
Matters of substance are, however, governed by the law which
applies to the underlying transaction or occurrence (the proper
law
or
lex causae
).
4
The same rule applies in English private international law.
5
A distinction has traditionally been drawn, in both South African
and English law, between two kinds of prescription/limitation
statutes: those which extinguish a right, on the one hand, and
those which merely bar a remedy by imposing a procedural bar on
the
institution of an action to enforce the right or to take steps in
execution pursuant to a judgment, on the other. Statutes
of the
former kind are regarded as substantive in nature, while statutes
of the latter kind are regarded as procedural.
6
By
virtue of the provisions of clauses 2.1 and 2.2 of the General
Undertaking referred to above, the proper law of the contracts
entered into between Lloyd’s and the defendants – the
lex
causae –
is English law. Counsel for Lloyd’s relied on the
provisions of clause 2.1 in support of their argument that the
English law
of prescription should apply, contending that there was
nothing in the wording of this ‘choice of law’ clause which
mandated
the imposition of a South African prescription regime. To
my mind, however, this argument is self-defeating by reason of the

fact that it is precisely the provisions of English law that
require matters of procedure to be determined in accordance with

the
lex fori
and, as will be discussed below, on the face of
it prescription under the English Limitation Act 1980
is
,
according to English law, a procedural matter.
Counsel
for Lloyd’s contended further that, in determining whether the
relevant provisions of the English Limitation Act 1980
should be
classified as procedural or substantive, this court should adopt
the ‘
via media
approach’ followed by Schutz J in
Laurens
NO v Von Höhne.
7
In that case, one of the issues to be decided was whether
German law or South African law had to be applied in regard to the
defence
of prescription raised by the defendant. Schutz J reasoned
as follows:
8
‘
The traditional rule has been that the
lex fori
characterises according to its own law without looking further. In
some cases this can lead to unfortunate results and because
of that
various writers,
Falconbridge
9
being an important early one, have much stirred the question.
Falconbridge’s
approach is a
via media
according
to which the Court has regard to both the
lex fori
and
lex causae
before determining the characterisation.
According to him, although the matter is one for the
law of the forum, the conflict rules of the forum should be
construed “
sub specie orbis”
, that is from a
cosmopolitan or world-wide point of view, so as to be susceptible
of application to foreign domestic rules….
In doing so it will pay full attention to the “nature,
scope and purpose” of the foreign rule in its context of foreign
law.
What the forum should do, so it is contended, is to make a
provisional characterisation having regard to both systems of law

applicable, followed by a final characterisation which takes into
account policy considerations .… …It is also contended for
the
via media
that it tends to create international harmony and
leads to the decision of cases in the same way regardless of which
country’s
courts decide them…
…
For myself, I accept the
via media
and
propose to follow it through wherever it leads. We may not dare to
let our law stand still.… private international law
is a
developing institution internationally and our own South African
private international law cannot be allowed to languish
in a
straightjacket.’
On the specific issue of prescription, Schutz J said the
following:
10
‘…
Our
Prescription Act, as
interpreted in
Kuhne’s
case, is
classified as substantive so that it is not a matter for the
lex
fori
. German law, even although their prescription laws are
only remedy-barring, characterises them as substantive. I follow
the
via media
. Looking at both the
lex fori
and the
lex causae
, the policy decision is in my view obvious.
German law should be applied. In this case there is no conflict
between the two
systems. The situation differs from that in the
Laconian
case
11
at 530I-J, so that there is not even a temptation to fall back on
the residual
lex fori.
’
In
the present case, unlike in the
Laurens
case, there
is
a potential conflict between the two applicable systems of law.
However, to my mind, this
via media
approach is the
appropriate one in dealing with the kind of problem with which we
are now confronted. Not only does it take cognisance
of both the
lex fori
and the
lex causae
in characterising the
relevant legal rules, but it also enables the court, after this
characterisation has been made, to determine
in a flexible and
sensitive manner which legal system has the closest and most real
connection with the dispute before it.
The first stage in this
via
media approach – to determine,
according to principles of South African law (the
lex fori
),
whether prescription in terms of the Act is substantive or
procedural – is perfectly straightforward. In South African law,
it is clear that prescription extinguishes a right. Section 10(1)
of the Act provides that –
‘
Subject to the provision of this Chapter and of
Chapter IV, a debt shall be extinguished by prescription after the
lapse of the
period which in terms of the relevant law applies in
respect of the prescription of such debt.’
This
means that prescription, in South Africa, is characterised or
classified as a matter of substantive law and is not simply
procedural, as was the case under the old Prescription Act 18 of
1943, s 3(1) of which rendered a right of action unenforceable
without extinguishing it.
12
The
second stage requires a determination of whether, according to the
principles of English law (the
lex causae
), the relevant
English statutory provision (s 24 of the English Limitation Act
1980)
13
is procedural or substantive. This section does not have the effect
of extinguishing the right in question, but merely imposes
a
procedural bar on bringing an action to enforce it. Limitation in
terms of this section is thus, according to the ‘traditional’
characterisation/classification referred to above, ‘a procedural
matter, and not one of substance: the right continues to exist
even
though it cannot be enforced by action.’
14
Counsel
for Lloyd’s submitted, however, that the coming into force of the
Foreign Limitation Periods Act 1984 in England rendered
defunct the
previous English distinction between substantive and procedural
statutes of limitation, with the effect that the
relevant English
law to be applied by this court is now also
in effect
a
matter of substance and not a matter of procedure.
In my
view, Mynhardt J in the court below correctly rejected this
argument. The relevant provisions of the 1984 Act are set out
in
his judgment.
15
As pointed out by counsel for the defendants, the 1984 Act does not
deal with
English
limitation provisions, but rather with
foreign
limitation provisions. It simply creates a new
(statutory) rule of English private international law to the effect
that, if the
lex causae
is a foreign law, an English court
must, in proceedings before it, apply the limitation provisions of
that foreign law to the
matter, irrespective of whether those
provisions are classified by the foreign law as procedural or
substantive in nature. It
is only where the application of this
rule conflicts with English public policy that the limitation
provisions of the English
law as the
lex fori
will be
applied.
As is
pointed out by Christopher Forsyth, commenting on the judgment of
the court below –
16
‘
The
proceedings in the current case were before a South African High
Court. There were no current “proceedings in a court in
England
and Wales” and no English court had been directed by “the rules
of private international law applicable by any such
court” to
apply “the law of any other country”. So the provisions of the
Act are simply not engaged and there is no call
for the court to
apply the “law of that other country relating to limitation”.
The 1984 Act was simply a red herring.’
17
It
follows that I am in agreement with the conclusion of the court
below that the prescription question in the present case has
to be
approached on the basis that prescription is, in terms of the
lex
fori
, a matter of substance, and in terms of the
lex causae
,
a matter of procedure. For reasons which will become clear, I do
not, however, agree with Mynhardt J’s acceptance of the

submission of defendants’ counsel that the Foreign Limitation
Periods Act 1984 is ‘irrelevant’ to the present two matters.
In view of the above, we are now faced with the problem of the
‘gap’ in the choice of law rules: under South African law
(the
lex fori
), prescription is a matter of substance, not
procedure, and therefore the South African law relating to
prescription does not
apply; under English law (the
lex causae
),
the s 24 limitation provision is procedural in nature and so the
lex causae
also does not apply. Moreover, generally
speaking, a South African court will not apply foreign rules of
procedure in a matter
to be adjudicated upon by it. This was
precisely the problem which arose in
Laconian Maritime
Enterprises Ltd v Agromar Lineas Ltd.
18
In that case, Booysen J described the problem of the ‘gap’
as follows:
19
‘…
It would mean if these general rules were to
apply that the
lex fori
being substantive would not apply
but that the
lex causae
being procedural would also not
apply.
This is indeed the last problem mentioned in Dicey and
Morris
The Conflict of Laws
10
th
ed at 1181.
20
The learned authors say:
“
If the statute of the
lex causae
is
procedural and that of the
lex fori
substantive, strict
logic might suggest that neither applies, so that the claim remains
perpetually enforceable. A notorious
decision of the German Supreme
Court once actually reached this absurd result. But writers have
suggested various ways of escape
from this dilemma, and it seems
probable that an English Court, in the unlikely event of its being
confronted by such a situation,
would apply one statue or the
other.”
The German case is not available to me but
Forsyth
in his article in the
SALJ
21
says of this case:
“
There is a notorious decision of the Reichsgericht
of 1881, upholding a claim on a Tennessee Bill of Exchange. The
Bill was prescribed
under both German law (the
lex fori
) and
Tennessee law (the
lex causae
) but the German provision was
classified as substantive, while the Tennessee rule was
procedural.”
I certainly have no wish to join the German Court in
its notoriety although strict logic might so advise.’
In
the
Laconian
case, the South African court was approached
for an order that an arbitration award handed down in London be
made an order of
court in terms of the recognition and enforcement
of Foreign Arbitral Awards Act 40 of 1977. The respondent raised
(inter alia)
the defence of prescription. Booysen J held that the
proper law of the underlying contract was English law and that,
accordingly,
the proper law of the arbitration award was also
English law. The limitation rules of the English law (
lex
causae)
were classified as procedural and therefore did not
apply. On the other hand, the rules of prescription in South
African law (the
lex fori
) are classified as substantive and
thus also did not apply. On the face of it, therefore, there were
no prescription rules at
all applicable to this arbitration award.
Faced with this dilemma, Booysen J opted to apply the
lex fori
and held that the provisions of the
Prescription Act 68 of 1969
should be applied, reasoning as follows:
22
‘…
it seems to me that in such an event I should
apply my own law on the basis that, if I am not enjoined by my own
law to apply
foreign law, I am enjoined by my oath to apply my
country’s law. I am, no doubt, influenced to some extent by
Ehrenzweig’s
scepticism and preference for the residual
lex fori
approach where no formulated or non-formulated rule
exists
23
which seems to me to accord with good sense.’
It is
important to note that, in the
Laconian
case, the
arbitration award was not prescribed under either English or South
African law. Booysen J’s application of the South
African law as
lex fori
, in preference to the English as
lex causae
,
thus made no difference to the outcome of the case as the defence
of prescription would have failed in any event. That is of
course,
not
the position in the matters presently before this court.
Booysen
J’s ‘residual
lex fori
’ approach in the
Laconian
case was followed in
Minister of Transport, Transkei v
Abdul.
24
So too, in the court below, Mynhardt J, faced with the problem
of the ‘gap’, adopted this
approach in coming to the
conclusion that the provisions of the South African
Prescription
Act should
be applied rather than the English law relating to
limitation periods. For the reasons that follow, I do not agree
with this
conclusion.
As suggested by Schutz J in the
Laurens
case, the resolution
of the dilemma of the ‘gap’ involves making a choice between
two competing legal systems. At this third
stage of the
via
media
approach, the court must take into account policy
considerations in determining which legal system has the closest
and the most
real connection with the legal dispute before it. As
pointed out by Sieg Eiselen –
25
‘
The conflicts process is aimed at serving
individual justice, equity or convenience by selecting the
appropriate legal system
to determine issues with an international
character. The process ought to be neutral in the sense that it
should display no bias
in favour of the
lex fori
.’
The
selection of the appropriate legal system must, of course, be
sensitive to considerations of international harmony or uniformity
of decisions, as well as the policies underlying the relevant legal
rule. It is in this regard that I take issue with the court
a quo’s
conclusion that the English Foreign Limitation Periods Act 1984 is
‘irrelevant to the present two matters’. The
1984 Act, based on
recommendations of the English Law Commission,
26
was a response to searching criticism of the English common law
characterisation of statutes of limitation barring the remedy
as
procedural. These criticisms are summarised by JP McClean as
follows:
27
‘
The notion that foreign statutes of limitation are
characterised as procedural if they merely bar the remedy is open
to a number
of criticisms. (1) The distinction between right and
remedy is an unreal one, for “a right for which the legal remedy
is barred
is not much of a right.” (2) The rule may bar a claim
which is still alive in the country where it arose, eg if the
English
period of limitation is shorter than the foreign one. (3)
Conversely, the rule may work hardship on a debtor in the opposite

situation if, in reliance on the foreign law, he has destroyed his
receipts. (4) The rule may encourage forum shopping. (5) It
would
be no more difficult for an English court to apply a foreign
statute of limitations than any other rule of foreign law.
Not to
do so in a situation where the foreign statute of limitations,
unlike most other foreign rules of procedure, would determine
the
outcome of the litigation seems perverse.’
In my
view, all these criticisms hold good in a situation such as the
present, where the
lex fori
is South African law, but the
lex causae
is a foreign system of law. Considerations of
international uniformity of decisions suggest that claims which are
alive and enforceable
in terms of the law of the country under
which such claims arose should as a general rule also be
enforceable in South Africa.
By virtue of the abovementioned
clauses 2.1 and 2.2 of the General Undertaking, English law is the
system governing the creation,
operation, interpretation and
enforcement of the rights of the parties. It seems logical that
English law is also the legal system
which has the closest and most
real connection with the question of the extinction or
non-enforceability of such rights because
of the expiry of a
prescription/limitation period, irrespective of whether the
particular prescription/limitation statute is
characterised as
being merely remedy-barring or extinctive. This is particularly so
where, under the
lex causae
, the traditional distinction
between extinctive and remedy-barring statutes of limitation has
become a largely artificial one.
The artificiality of this
distinction in English law is cogently illustrated by Forsyth as
follows:
28
‘
In an entirely English case, where both substance
and procedure are undeniably governed by English law, the question
will never
arise whether any part of the Limitation Act 1980 is
procedural or substantive. The Act will simply be applied according
to its
terms and there will be no need to draw any such
distinction. It is only when the law of another country falls to be
taken into
account, that any question of the characterisation of
limitation rules being procedural or substantive may arise. But in
these
circumstances, the 1984 Act provides that, in general, the
foreign law in regard to limitation applies. Hence since the 1984

Act this question of the characterisation of prescription rules has
not, to the best of my knowledge, been before an English court.’
It is
also worth noting that, on an international level, prescription
rules are increasingly characterised as substantive for
the
purposes of private international law. So, for example, the Rome
Convention on the Law Applicable to Contractual Obligations
(1980),
which applies in the European Union countries, follows such
characterisation. The provisions of the Rome Convention were
given
the force of law in the United Kingdom in terms of the Contracts
(Applicable Law) Act 1990. There has also in recent years
been a
distinct movement in the common law countries away from the
traditional English common law ‘dual’ classification of
prescription/limitation rules to a substantive characterisation of
such rules.
29
Counsel
for the defendants submitted that the
lex fori
should govern
the issue of prescription because the provisional sentence
proceedings in effect amounted to part of the process
of execution
of the foreign judgments in South Africa. Thus, as execution is a
matter of procedure, it is – so counsel contended
– the
lex
fori
which now has the closest and most real connection with
the question whether the claims which Lloyd’s seeks to enforce in
South
Africa are still ‘alive’. In my view, however, the basis
of counsel’s contention is this regard is incorrect. The
provisional
sentence proceedings against the defendants in this
case are, like any quest for judgment, obviously a
step towards
eventual execution, but cannot be regarded as
part of the
process
of
execution. As indicated above, English law is
the system governing, inter alia, the enforcement of the rights of
the parties
by virtue of clauses 2.1 and 2.2 of the General
Undertaking. The provisional sentence proceedings against each
defendant are
simply a means of obtaining an enforceable judgment
against such defendant, albeit a second one on the basis of the
English judgment
already obtained.
It
follows that, in my view, considerations of policy, international
harmony of decisions, justice and convenience require the
dilemma
of the ‘gap’ in the present case to be resolved by dealing with
the issue of prescription in terms of the relevant
limitation
provisions of the
lex causae,
the English law. This means
that, because the provisional sentence summonses were served on the
defendants less than 6 years after
the default judgments were
obtained in the English court, as contemplated by s  24 of the
English Limitation Act 1980, the
claims on the judgments have not
become prescribed and the defence of prescription must fail. This
conclusion renders it unnecessary
for me to deal with the question
whether the English default judgments against the defendants are
‘judgment debts’ for the
purposes of s 11
(a)
(ii)
of
the Act.
In the recent Cape High Court case of
Society of Lloyd’s v
Romahn,
30
Van Zyl J came to the same conclusion on the prescription
issue. He purported to do so by adopting the
via media
approach
followed by Schutz J in the
Laurens
case but in reality
proceeded to establish a new rule of private international law. In
dealing with the problem of the ‘gap’,
Van Zyl J stated the
following:
31
‘
[85] In the present matter the parties agreed that
their rights and obligations would be governed by and construed in
accordance
with English law. This means that they also agreed that
the rule, requiring procedural matters to be dealt with by the
lex
fori
, would apply. What they did not agree upon, in that they
clearly could not have applied their minds to it, was that, in
terms
of South African prescription law, their respective claims
would be extinguished by the effluxion of time. As mentioned
previously,
the creators of the English rule were probably
blissfully unaware of the fact that a debt, which was time-barred
in English limitation
law, would be extinguished should the
lex
fori
be applied. It can scarcely be imputed to the parties that
they intended such a result.
[86] This brings me to the question whether, in such
circumstances, the rule might have been qualified to the extent
that, if
a matter of procedure in the
lex causae
should be a
substantive matter in the
lex fori
, it would revert to the
lex causae
. In my view justice, fairness, reasonableness and
policy considerations dictate that this question be answered
positively.’
The ‘qualification’ suggested by the learned judge amounts in
effect to the creation of a new and somewhat inflexible rule
of
private international law. In my view, when confronted with the
problem of the ‘gap’, the more flexible approach of applying
the law of the legal system which, in the circumstances of the
particular case, has the closest and most real connection to the
question of extinction or enforceability is the more appropriate,
although in practice the result in most cases is likely to
be the
same. Insofar as Van Zyl J emphasises the need to take cognisance
of the nature, scope and purpose of the foreign rule
in its
appropriate legal context and with regard to relevant policy
considerations, as well as the desirability of avoiding ‘artificial
attempts to fit the issue into a “prefabricated” or
preconceived form or structure’,
32
his judgment takes a commendable step towards the development and
application of the
via media
approach.
International jurisdiction of the English Court
The
second defence raised by the defendants was that a South African
court should refuse to recognise and enforce the English
default
judgments on the basis that the English court lacked international
jurisdiction to pronounce these judgments.
One of the established procedures for the enforcement of a foreign
judgment in a South African court is provisional sentence.
In
Jones
v Krok
,
33
the general requirements for the recognition and enforcement of a
foreign judgment in South Africa were summarised as follows:
34
‘
As
is explained in Joubert (ed)
The Law of South Africa
vol 2
(first reissue) para 476, the present position in South Africa is
that a foreign judgment is not directly enforceable, but
constitutes a cause of action and will be enforced by our Courts
provided (i) that the court which pronounced the judgment had
jurisdiction to entertain the case according to the principles
recognised by our law with reference to the jurisdiction of foreign
courts (sometimes referred to as “international jurisdiction or
competence”); (ii) that the judgment is final and conclusive
in
its effect and has not become superannuated; (iii) that the
recognition and enforcement of the judgments by our Courts would
not be contrary to public policy; (iv) that the judgment was not
obtained by fraudulent means; (v) that the judgment does not
involve the enforcement of a penal or revenue law of the foreign
State; and (vi) that enforcement of the judgment is not precluded
by the provisions of the Protection of Businesses Act 99 of 1978,
as amended . . . . Apart from this, our Courts will not go
into the
merits of the case adjudicated upon by the foreign court and will
not attempt to review or set aside its findings of
fact or law’.
In
proceedings to enforce a foreign judgment, the defendant thus
cannot attack the foreign judgment on its merits. However, the
court which is asked to enforce the foreign judgment is entitled to
adjudicate upon any jurisdictional fact necessary to establish
international jurisdiction – ‘to determine for itself whether
the facts on which the jurisdiction of the foreign Court is
purported to be based really existed’.
35
It
is generally accepted in our case law that, where a defendant in
provisional sentence proceedings brought to enforce a foreign
judgment challenges the international jurisdiction of the foreign
court, the onus of proving, on a balance of probabilities,
that the
foreign court had such jurisdiction rests on the plaintiff.
36
In the case of a foreign judgment sounding in money, one of the
grounds on which the foreign court will be regarded by a South
African court as having had international jurisdiction is that the
defendant submitted to the jurisdiction of the foreign court.
37
Lloyd’s
relied on the ‘exclusive jurisdiction clause’ (clause 2.2) in
the General Undertaking entered into by each of the
defendants in
support of its contention that the defendants had submitted to the
jurisdiction of the English courts and that
the English courts
accordingly had the requisite jurisdiction to grant the default
judgments against them.
It
is common cause that, by letter dated 25 June 1997, the defendants’
legal representatives purported to ‘cancel and rescind’
the
agreements in terms of which the defendants became members of
Lloyd’s, alleging that ‘each one of our clients was induced
to
enter into the respective agreement with [Lloyd’s] by serious and
fundamental misrepresentations of existing facts, all
of which went
to the root of the contract which each one of our clients was
thereby induced to enter’. Counsel for the defendants
submitted
that, in terms of South African law, the agreements with Lloyd’s
were either void
ab initio
on the grounds of ‘fundamental
mistake’
or voidable on the ground of misrepresentation,
and that a South African court should thus refuse to recognise the
English court’s
international jurisdiction based on the
submission to jurisdiction clause which formed part of such
agreements.
In my view, the defendants have
not succeeded in establishing on the facts before us that their
agreements with Lloyd’s were
void
ab initio
, either in
terms of South African law or English law. As regards their
purported rescission of such agreements on the grounds
of
misrepresentations by Lloyd’s, this issue was canvassed in some
detail by the English Court of Appeal in
Society of Lloyd’s v
Leighs & others.
38
In that case, various names had alleged that they had been
induced to become members of Lloyd’s on the terms of the General

Undertaking by fraudulent misrepresentations and that they had
rescinded their contracts with Lloyd’s (including the General
Undertaking) with retroactive effect. In deciding whether
rescission was a remedy which was open to the names, the court
reasoned
as follows:
39
‘
The remedy of
rescission is open to those induced to enter into contracts by
misrepresentation and is now governed by the
Misrepresentation
Act
1967. The act of rescission avoids the contract
retroactively ab initio – see
Chitty
, para 6-064
–
and can only take place provided:
(1) that it is possible to restore the
parties to substantially the same position that they were in before
the contract was concluded;
and
(2) that rescission will not harm the rights
of third parties.’
The Court held that rescission
would indeed harm the rights of third parties, stating that –
…‘
The names
contend that the effect of rescission was to withdraw,
retroactively, the authority of AUA 9 to contract for the names
so
that the contracts concluded by AUA 9 at a time when AUA 9 had
authority are retroactively invalidated. We know of no case
where
rescission has invalidated a contract with a third party in this
way and we do not believe that such a result can be accommodated
within established legal principles.’
40
In addition the Court found that
membership of Lloyd’s was the foundation of the insurance
business that was carried on by the
names and had to be carried on
by them until all their liabilities to policy holders had been
discharged. In essence, the names
were attempting to withdraw from
a partly performed contract and this could not be done –
‘…
It is
fundamentally incompatible with the business that has been carried
on for names to withdraw, retroactively, from membership
of
Lloyd’s. It is impossible to sever the contracts under which the
names became members of Lloyd’s from the business that
has been
carried on, and the contracts that have been concluded, by virtue
of that membership. Restitutio in integrum is impossible.
So far as rescission ab intitio is concerned,
these considerations apply just as much to names who purported to
rescind before
the Equitas contract was concluded as to those who
did so after that event . . . .
…
We are not
aware of any principle of law which permits a party to terminate a
partly performed contract on the ground that the
conclusion of the
contract was induced by fraud, in circumstances where rescission of
the contract is impossible.
For
these reasons we concur with the judge’s conclusion that the
names have not validly rescinded their general undertakings
and
thereby avoided the contracts with Equitas concluded on their
behalf by AUA 9.’
41
From
the perspective of English law, therefore, the defendants’
purported rescission of their agreements with Lloyd’s on the
grounds of misrepresentation has no effect and they remain bound by
such agreements, including the submission to jurisdiction
clause in
the General Undertaking. In this regard, however, counsel for the
defendants submitted that the validity of a submission
to
jurisdiction must be tested with reference to principles of the
lex
fori
and that, in terms of South African law, the defendants
had a basis for rescinding their agreements with Lloyd’s,
including
the General Undertaking, with retroactive effect.
This
contention does not hold water. It would appear that, as a general
rule, the validity of a submission to jurisdiction agreement
should
be tested with reference to the proper law of the contract in
question.
42
Moreover, under both South African and English private
international law, there is authority for the proposition that the
material
validity of a contract (including the question whether or
not the contract is voidable and can be rescinded) should be
determined
with reference to the so-called ‘putative proper law’
of the contract, ie the law which would govern the contract or any

term thereof if it were valid.
43
In my view, this is the correct approach to follow in the
circumstances of the present case. In terms of the
lex causae
the defendants are bound by the exclusive jurisdiction clause in
the General Undertaking. This being so, the English court did
have
international jurisdiction to grant the default judgments against
them and the second defence must fail.
Public policy
The
third defence raised by the defendants is that the recognition and
enforcement of the English default judgments against the
defendants
by a South African court would be contrary to South African public
policy. In essence, the defendants alleged that
the means used by
Lloyd’s to procure that all names (including those names who
rejected the R & R settlement) were bound
by the Equitas
contract and thus liable to pay the Equitas premium to Lloyd’s as
the assignee of Equitas, offended against
the basic principles of
public policy underlying the law of contract in South Africa.
According to the defendants, by using
its bye-law making powers to
appoint AUA9 as substitute agent which then, in accordance with
Lloyd’s directives, entered into
the reinsurance and run-off
contract with Equitas on behalf of each ‘non-accepting name’,
Lloyd’s procured the conclusion
of binding contracts in the
defendants’ names without their consent and on terms dictated
entirely by itself. This
modus operandi,
it was said,
constituted a flagrant disregard for the requirement of
consensus
underlying contractual liability in civilised
legal systems worldwide and should not be countenanced by the
courts in this country.
The
defendants also emphasised the fact that, in terms of clause 25.2
of the Equitas contract, a name not domiciled in the United
Kingdom
authorised the substitute agent (AUA9) to accept service of court
process on his or her behalf. In the case of each defendant,
the
writ of summons in the English proceedings was not served on the
defendant himself, but was served on AUA9. In this regard,
the
defendants submitted that the basic rules of natural justice had
not been complied with in that they had not been given reasonable
notice of the proceedings against them in the English court and a
reasonable opportunity to contest those proceedings. For this
reason too, the defendants contended, recognition and enforcement
by a South African court of the English judgments against them
would be contrary to public policy in this country.
As indicated above, the sequence
of events leading up the appointment of AUA9 as substitute agent
and the circumstances in which
AUA9 entered into the Equitas
contract on behalf of the non-accepting names were attacked in the
English courts in complex and
protracted litigation. All of these
attacks failed. The findings of the Commercial Court, in
Society
of Lloyd’s v Leighs & others
,
44
on the various challenges of non-accepting names to the means used
by Lloyd’s to impose the Equitas contract and the obligation
to
pay the Equitas premium on them were summarised in a later judgment
of the Court of Appeal
45
as follows:
‘
By March
1997, Colman J [the judge of the Commercial Court assigned to take
charge of the litigation by Lloyd’s against non-accepting
names
for payment of the Equitas premium] had determined a number of
points [of law]. He made declarations that:
“
1. Subject
only to the determination of the defendants’ allegation that they
were not names of Lloyd’s at the relevant time
or in the relevant
context, the defendants are bound by the terms of the Reinsurance
and Run-Off Contract dated 3 September 1996
(‘the reinsurance
contract’).
2. The following byelaw and decisions of the
plaintiff [Lloyd’s] were intra vires the plaintiff and cannot be
impugned by the
defendants if they were names at Lloyd’s at any
relevant time:
(i) the Reconstruction and Renewal Byelaw
(No. 22 of 1995);
(ii) the Resolution and Direction of the
Council of Lloyd’s made pursuant to the Reconstruction and
Renewal Byelaw and the
Substitute Agent’s Byelaw and effective on
3 September 1996.
3. None of the following contentions or
allegations enable the defendants to contend that, if they were
names at Lloyd’s at
any relevant time, they were not bound by the
terms of the reinsurance contract:
(1) The purported termination by the
defendants of their managing agent’s authority;
(2) The allegation that the execution of the
reinsurance contract was outside the scope of the powers given by
the defendants
to their managing agents;
(3) The allegation that the execution of the
reinsurance contract contains terms which are against the
defendant’s interest
and in favour of Lloyd’s, Equitas or other
Lloyd’s related entities;
(4) The alleged conflict of interest between
the interests of the defendant and Lloyd’s, including the
allegations that:
(i) such conflict of interest renders the
Reconstruction and Renewal Byelaw unreasonable in law and ultra
vires, and
(ii) the reinsurance contract is voidable
by the defendants by reason of an alleged conflict between the
interests of the defendants
and Lloyd’s, and AUA  9’s
failure to consider each defendant’s personal position or the
reasonableness of each and
every term of the reinsurance contract
in the context of the defendants’ best interests as opposed to
those of Lloyd’s;
(5) The allegation that the appointment of
AUA 9 as substitute managing agent was ultra vires Lloyd’s;
(6) The allegation that the Reconstruction
and Renewal Byelaw was unreasonable in law and ultra vires;
(7) The allegation that the Resolution and
Direction made by the Council of Lloyd’s . . .was unreasonable in
law and ultra
vires;
(8) The allegation that Lloyd’s had no
title to sue, by reason of an ineffective notice of assignment,
including the allegation
that AUA 9 had no valid authority to
receive notice of assignment.’
The appeal by the names against
the judgment of Colman J in this regard failed.
46
In dismissing the names’ argument on appeal that the bye-laws and
resolutions exceeded the scope of the powers of Lloyd’s,
the
Court of Appeal stated the following:
47
‘
R & R,
and in particular the Equitas scheme, is not, of course, simply
designed to provide cover against the risk of individual
defaults.
It has a much more fundamental object – to settle intractable
litigation and to avoid the need to put the whole of
Lloyd’s into
run-off. In short, a primary object of the scheme, if not the
primary object, has been to save Lloyd’s itself,
for the benefit
of its members. We find it hard to see how it can be argued that
the scheme has not been “requisite or expedient
to the proper and
better execution of Lloyd’s Acts 1871 to 1982 and for the
furtherance of the objects of the society”.
We
are in no doubt that the R & R byelaw falls fairly and squarely
within the society’s powers and that the directions given
to
implement it were validly given.’
It is important to reiterate
that the obligation of the names –including the defendants – to
comply with the various bye-laws
and directions which underpinned
the R & R plan, the appointment of AUA9 and the Equitas
contract was
voluntarily
undertaken. In terms of clause 1 of
the General Undertaking entered into by each name on becoming a
member of Lloyd’s, the
name agreed that –
‘
Throughout
the period of his membership of Lloyd’s the Member shall comply
with the provisions of the Lloyd’s Acts 1871-1982,
any
subordinate legislation made or to be made thereunder and any
direction given or provision or requirement made or imposed
by the
Council or any person(s) or body acting on its behalf pursuant to
such legislative authority and shall become a party
to, and perform
and observe all the terms and provisions of, any agreements or
other instruments as may be prescribed and notified
to the Member
or his underwriting agent by or under the authority of the
Council.’
As
was conceded by counsel for the defendant, the mere fact that the
enforcement of a foreign judgment by a South African court
would
involve the recognition of a foreign institution or rule unknown to
our legal system does not
per se
constitute a reason for
refusing to enforce such judgment.
48
The R & R scheme, however extraordinary it might appear from a
South African perspective, was a solution devised to resolve
an
extraordinary insurance industry-related situation. It is clear
from the judgments of the English courts that R & R was
devised
and implemented to deal with a market in a state of crisis and that
one of the primary aims was to protect the names
themselves
from the risk of massive claims to which they would otherwise be
totally exposed.
49
All of the steps taken by Lloyd’s to implement this scheme have
been thoroughly scrutinised by the English courts and have
been
found to be legitimate. In my view, it certainly cannot be said
that the recognition by a South African court of an English
judgment obtained against a name on the basis of this scheme ‘would
be so repugnant to the values of our law that the
lex causae
will be excluded on grounds of public policy’.
50
As regards the defendants’
allegations that they had not received reasonable notice of the
English proceedings against them
and that they did not have a
reasonable opportunity to contest those proceedings, this is belied
by the abovementioned letter
dated 25 June 1997 addressed by the
defendants’ legal representatives to Lloyd’s legal
representatives.
51
The contents of this letter make it clear that, by that stage, the
defendants were aware of the appointment of AUA9 as substitute
agent and the fact that proceedings either had been, or were about
to be, instituted against them in the English courts. Despite
this
knowledge, the defendants’ legal representatives expressly placed
on record that –
‘
Our clients
will not enter an appearance to defend in English Courts, as the
alleged choice of jurisdiction is vitiated by the
fraud set out
above . . . .
Our clients obviously reserve their right to
present this letter to the South African Courts in which action
against your client
will be instituted. This letter will also be
presented to the South African Court in which your client might
wish to enforce
any English judgment obtained against our clients.
We
are of the considered view that the prospect of your client being
able to enforce any judgment against our clients against
the
background of the above facts is negligible. We deem it advisable
however, to inform you and your client of our clients’
attitude
at the earliest opportunity – lest it be argued that our clients
had ignored your clients’ attempts to obtain a
judgment against
them.’
It
is not without significance that neither Price nor Lee referred to
this letter in their first answering affidavits filed in
opposition
to provisional sentence. It was only after the letter was dealt
with in some detail in a supplementary replying affidavit
filed by
Lloyd’s in the proceedings against Price, that the defendants saw
fit to deal with it in their second answering affidavits.
According
to Price, ‘our legal advisors’ motive in stating that their
clients would not enter appearance to defend in English
courts, was
that any indication that we submitted to the jurisdiction of the
English courts was to be avoided, because the contracts
with
Lloyd’s were considered to be void
ab initio.
’ However,
as pointed out on behalf of Lloyd’s, entering an appearance to
defend in England solely to contest the English
court’s
jurisdiction would
not
in any way have compromised their
stance that the English courts had no jurisdiction to hear the
matter. Moreover, even after
the defendants became aware of the
existence of the default judgments against them (several years
before the provisional sentences
summonses were served on them
here), neither of them took any steps whatsoever to have the
judgments set aside.
In
terms of clause 25.2 of the Equitas contract, the writ of summons
in the English proceedings against each defendant was duly
served
on AUA9. After careful scrutiny, the English courts have upheld the
validity of the designation of AUA9, inter alia, as
an agent for
service of process on names not domiciled in the United Kingdom.
The validity of this form of service in terms of
the Equitas
contract has also been challenged in courts in the United States of
America on much the same grounds as those on
which the defendants
now rely. Those challenges have also failed.
52
In this regard too, I am of the view that the manner in which the
default judgments were obtained against the defendants cannot
be
said to be so repugnant to the values of South African law that it
would offend South African public policy to recognise and
enforce
such judgments here.
It
follows from what I have said above that the defences based on
public policy also cannot be upheld. In my opinion, there are
thus,
in the circumstances o+f the present case, no public policy grounds
on which a South African court should refuse to recognise
and
enforce the English judgments on which the provisional sentence
proceedings against the defendants are based.
Order
In
the circumstances, the following order is made:
1. The
appeals are upheld with costs, including the costs consequent upon
the employment of two counsel, for which costs the respondents
are
jointly and severally liable, the one paying the other to be
absolved.
2. The
orders made by the Pretoria High Court on 14 January 2005 are set
aside and substituted with the following:
1). In
Case No. 17040/03
, the defendant, Owen John
Price, is ordered to pay the plaintiff:
(a) the amount of ₤71 900.36 (being the principal sum of ₤65
881, plus interest in the amount of ₤5  630.11, plus costs
in the amount of ₤389.25);
(b) interest on the amount of ₤71 900.36 at the rate of 8
per cent per annum from 13 October 1997 to date of payment.
2). In
Case No. 20764/03
, the defendant, Paul Lee, is
ordered to pay the plaintiff:
(a) the amount of ₤163 413.09 (being the principal sum of
₤153 719.64, plus interest in the amount of ₤9  104.20,

plus costs in the amount of ₤589.25);
(b) interest on the amount of ₤163 413.09 at the rate of 8
per cent per annum from 27 June 1997 to date of payment.
3). The defendants, Owen John Price and Paul Lee, are ordered,
jointly and severally, the one paying the other to be absolved,
to
pay the costs of suit, including the costs occasioned by the
employment of two counsel.
____________________
B J VAN HEERDEN
JUDGE OF APPEAL
CONCUR
:
HOWIE P
SCOTT JA
ZULMAN JA
CACHALIA AJA
1
The judgment of the court
a quo
has been reported as
Society
of Lloyd's v Price; Society of Lloyd's v Lee
[2005] ZAGPHC 9
;
2005 (3) SA 549
(T).
2
Paras 22-24.
3
For a discussion of the litigation in the English courts in this
regard, see the recent judgment of Van Zyl J in
Society of
Lloyd’s v Romahn;
Society of Lloyd’s v H Ilse; Society of
Lloyd’s v M Ilse; Society of Lloyd’s v FG Ilse
(C) (Case
Nos. 5108/03; 5105/03; 5107/03; 8588/04, delivered 3 March 2006),
reported as
The Society of Lloyd’s v Ilse
2006 CLR 101
(C),
paras 14-24
.
4
See AB Edwards (updated by Ellison Kahn) ‘Conflict of Laws’, 2
Lawsa
Part 2 (2 ed) para 342.
5
See Lawrence Collins
(ed)
Dicey and Morris on the Conflict
of Laws
vol 1 13ed (2000) para 7-002 –
7-003 at p 157.
6
For the position in South African law, see eg
Kuhne & Nagel
AG Zurich v APA Distributors (Pty) Ltd
1981 (3) SA 536
(W) at
537
in fin
-538A and further CF Forsyth
Private
International Law
4ed (2003) p 21-22. As regards the position in
English Law, see
Dicey and Morris on the Conflict of Laws
op
cit
para 7-040 at p 172.
7
1993 (2) SA 104
(W).
8
At 116H–117E.
9
JD Falconbridge
Essays on the Conflict of Laws
2ed (1954).
10
At 121D-F.
11
Laconian Maritime Enterprises Ltd v Agromar Lineas Ltd
1986
(3) SA 509
(D).
12
See
Protea International (Pty) Ltd v Peat Marwick Mitchell &
Co
[1990] ZASCA 16
;
1990 (2) SA 566
(A) at 568I-569A.
13
See para 8 above.
14
See
Chitty on Contracts
vol 1 29ed (2004) para 28-126 at p
1618.
15
Paras 35-37 at 560J-563E.
16
‘”Mind the gap”: A practical example of the characterisation
of prescription/limitation rules’ (to be published in
Journal
of Private International Law
vol 2 no 1). This article, as
well as those referred to in n 25 and 29 below, were drawn to our
attention by Professor Jan Neels
of the University of Johannesburg,
who also provided us with copies of these articles. They were duly
referred to counsel on both
sides and their comment was subsequently
received.
17
At p 120-121. See also the other authorities cited by Mynhardt J
(para 37 of the reported judgment).
18
1986 (3) SA 509
(D).
19
At 524B-F.
20
See now
Dicey and Morris on the Conflict of
Laws
op cit para 7-043 at p 174.
21
(1982) 99
SALJ
16.
22
At 524 F-G.
23
See Albert A Ehrenzweig
Private International Law
(1974) at p
125.
24
1995 (1) SA 366
(N) (Alexander J, Thirion J concurring).
25
‘
Laconian
revisited – a reappraisal of classification in
conflicts law’ (to be published in
(2006) 123
SALJ
146)
at
156.
26
See
Report on Classification of Limitation in Private
International Law
Law Com 114, Cmnd 8570, (1982).
27
JD McClean
Morris
:
The Conflict of Laws
4ed (1993) at
p 386-387.
28
Op cit n 16 at p 121.
29
See further in this regard Jan L Neels ‘Classification and
liberative prescription in private international law: The experience
with a Canadian doctrine in Southern Africa’ (paper delivered at
the University of Namibia, Yeditepe University (Istanbul, Turkey)
and the University of Antwerp (Belgium) on respectively, 1 July and
22 and 29 October 2003 (to be published in TSAR)) at p 18-21.
30
See n 3 above.
31
At p 141-142 of the reported judgment.
32
Para 83 at p 141 of the reported judgment. See also para 87-89 at p
142-143.
33
[1994] ZASCA 177
;
1995 (1) SA 677
(A).
34
At 685B-E.
35
Coluflandres Ltd v Scania Industrial Products Ltd
1969 (3) SA
551
(R) at 560E-H; see also
Maschinen Frommer GmbH & Co KG v
Trisave Engineering & Machinery Supplies (Pty) Ltd
2003 (6)
SA 69
(C) at 77C-E.
36
See
Maschinen Frommer GmbH & Co KG v
Trisave Engineering & Machinery Supplies (Pty) Ltd
supra at
76E-G.
37
See
Purser v Sales
[2000] ZASCA 135
;
2001 (3) SA 445
(SCA)
para 12 at 451B.
38
[1997] CLC 1398.
39
At 1404A-B.
40
At 1405B.
41
At 1405E-H.
42
Cf
Blanchard, Krasner & French v Evans
2002 (4) SA 144
(T) para 10-11 at 149A-D; and generally CF
Forsyth
Private International Law
4ed (2003) p 399-400.
43
See 2
Lawsa
Part 2 (2ed) para 332; CF
Forsyth
Private International Law
p 319-320;
Dicey and
Morris on the Conflict of Laws
vol 1 para 12-084 – 12-085 at
p 429-430 and vol 2
para 32-152 – 32-153 at p 1250-1251 and
para 32-163 – 32-164 at p 1254-1255.
44
[1997] CLC 759 (QB).
45
Society of Lloyd’s v Fraser & others
[1998] CLC 1630 (CA).
46
See
Society of Lloyd’s v Leighs & others
[1997] CLC 1398 (CA).
47
At 1403A-B.
48
See eg
Eden v Pienaar
2001 (1) SA 158
(W)
at 167I-168A.
49
See eg
Society of Lloyd’s v Fraser &
others
[1998] CLC 1630 (CA) at 1635G-1636A.
50
CF Forsyth
Private International Law
op
cit 110.
51
See para 38 above.
52
See the decision of the United States District
Court, Southern District of California, in the matter of
The
Society of Lloyd’s v Bambi Byrens et al
Civil No. 02CV449-J
(AJB) at 9-13 and the other authorities there cited.