Richman v Ben-Tovim (674/05) [2006] ZASCA 121; 2007 (2) SA 283 (SCA); [2007] 2 All SA 234 (SCA) (29 November 2006)

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[2006] ZASCA 121
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Richman v Ben-Tovim (674/05) [2006] ZASCA 121; 2007 (2) SA 283 (SCA); [2007] 2 All SA 234 (SCA) (29 November 2006)

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‘
If personal service within the court’s area is a
ground of international jurisdiction in money proceedings in modern
Roman Dutch
law then with respect the judgment is to be welcomed. But
is it a ground? True, the jurisdictional criteria of internal and
international
jurisdiction does not always coincide, although in
principle, it is believed, they should. But normally where they do
not the internal
are the more extensive. Does it not sound strange
that personal service within the area suffices abroad but not
locally?’
It is perhaps of some significance that in
South African domestic law, the drastic procedure of arrest to found
jurisdiction (though
constitutionally suspect) may be resorted to
where a
peregrine
is temporarily within the jurisdiction of
the court. Such a procedure is unknown in English Law where service
is sufficient to confer
jurisdiction. Joubert also refers to Van
Dijkhorst J’s judgment in
Reiss
1
where the view of
Pollak
in the first edition of his work is
endorsed. Forsyth
2
criticizes Steinberg’s case and submits, without any authority,
that mere presence is not a ground of international competence.
He
also makes the point that the dictum in
Purser
makes no
mention of mere physical presence as a ground of international
competence. The learned author refers to an obiter statement
of
Erasmus J in
Erskine
3
to the effect that physical presence at the time of the institution
of the action will suffice. Edwards
4
makes the point that there is no support either in authority or in
principle for physical presence
per se
as grounding
international competency. In
Supercat Incorporated v Two Oceans
Marine CC
5
(although decided after
Purser
) Conradie J made no mention of
Purser
. The learned judge observes that:
‘
Sometimes, it seems, our Courts recognize the
jurisdiction of a foreign Court although they themselves would not
have assumed jurisdiction
on the same footing.’
6
[9] There are compelling reasons why, as
submitted by the plaintiff’s counsel, in this modern age,
traditional grounds of international
competence should be extended,
within reason, to cater for itinerant international businessmen. In
addition, it is now well established
that the exigencies of
international trade and commerce require
‘…that final
foreign judgments be recognised as far as is reasonably possible in
our courts, and that effect be given thereto.’
7
This court (albeit in a slightly different context) said
in
Mayne v Main
8
that a ‘common-sense’ and ‘realistic approach’ should be
adopted in assessing jurisdictional requirements because of
‘…
modern-day conditions and attitudes and the tendency towards a more
itinerant lifestyle, particularly among business people.
And because
not to do so might allow certain persons habitually to avoid the
jurisdictional nets of the courts and thereby escape
legal
accountability for the wrongful actions.’
In my view having regard to all of the
above factors the view expressed by
Pollak
quoted with
approval by Van Dijkhorst J in
Reiss
9
should be followed
.
[10] I now turn to consider the two remaining defences
raised in the court
a quo
, the provisions of the Protection of
Business Act 99 of 1978 (the Act) and public policy.
[11] Section 1(1) of the Act provides that, except with
the permission of the Minister of Economic Affairs, no judgment,
order or
arbitration award delivered, given, issued or emanating from
outside the Republic and arising from any act or transaction
contemplated
in ss (3) shall be enforced in the Republic. Section
1(3) reads:
‘
(3) In the application of ss (1)(a) an act or
transaction shall be an act or transaction which took place at any
time, whether before
or after the commencement of this Act, and is
connected with the mining, production, importation, exportation,
refinement, possession,
use or sale of or ownership to any matter or
material, of whatever nature, whether within, outside, into or from
the Republic.’
The wording of the section refers to
transactions connected with raw materials or substances. Even
manufactured goods are excluded
from the operation of the Act.
10
The plaintiff’s claim is for services and disbursements related to
negotiations, advice, drafting of contract documents, and incidental
matters pertaining to a restructuring, rearrangement, and
(ultimately) dissolution of joint ventures between the respondent, on
the
one hand, and various affiliates of the De Beers group of
companies.
If manufactured goods are sufficiently remote from
‘matter’ and ‘material’ within the meaning of the Act, by
parity of reasoning
there can be no scope for applying it to a claim
for payment sounding in money where the claim is one for professional
services rendered.
I accordingly consider that this defence is
without merit.
[12] As to public policy considerations the defendant
baldly contends that, because appellant is not an attorney duly
admitted to
practise locally, nor a solicitor admitted to practise in
the United Kingdom, he is not entitled, in terms of South African
legislation,
to levy fees. This complaint is misdirected: the
question is not whether appellant was entitled in terms of South
African legislation
to charge for the services and rendered
disbursements made by him, but whether he was permitted to do so in
England, where he was
mandated by defendant and where the services
were rendered and disbursements incurred.
No facts were adduced by defendant to show that
plaintiff was prohibited in England from obtaining payment of the
amounts claimed.
On the contrary: plaintiff practises in England as a
South African attorney practising foreign law, which is a valid and
accepted
practice in England. There is no bar in England to such
practitioners recovering fees for services rendered by them.
Insofar as the position in South Africa is concerned,
appellant is – contrary to respondent’s contention – an
attorney of this
Court, having been admitted as such in 1963, though
no longer practising as such.
There are no considerations of public policy which
militate against the recognition or enforcement of applicant’s
claim for his
fees and disbursements arising from the services
lawfully rendered by him in England. If anything public policy would
require the
recognition by a South African court of a lawful judgment
given by default by an English court where personal service in
England
had taken place.
[13] In all the circumstances the appellant’s action
for provisional sentence should have succeeded. Accordingly the
appeal is allowed
with costs.
The order of the court
a quo
is set aside and
replaced with the following order:
Provisional sentence is granted in favour of the
plaintiff against the defendant for payment of:
(a) 57 882.179 English Pounds, alternatively the Rand
equivalent thereof determined in accordance with the exchange rate
prevailing
as at the date of payment;
(b) Interest on the aforesaid sum at the rate of 8 per
cent per annum from 17 December 2003 to date of payment;
(c) The defendant is to pay the plaintiff’s costs of
suit.
____________________
R H ZULMAN
JUDGE
OF APPEAL
CONCUR: ) CAMERON JA
) BRAND JA
) MAYA JA
) THERON AJA
1
Supra
at 1037H-1038B.
2
Private
International Law
(4
th
ed) pages 401-402.
3
Supra
at 820J.
4
LAWSA
Vol 2 Second ed (updated by Ellison Kahn) para 346 at page 384
.
5
2001
(4) SA 27
(C).
6
At
30H and s
ee also page 31D and
Permanent
Investment Building Society v Vogel
(1910) 31 NLR 402.
7
Westdeutsche
Landesbank Girozentrale (Landesbausparkasse) v Horsch
1993 (2) SA 342
(Nm) at 343J-344A
where the court held, inter alia, that the jurisdiction of a foreign
court would be recognised where the defendant was physically
be
present in the area of the foreign court at the time of the
institution of the proceedings there approved of in
Blanchard,
Krasner & French v Evans
2004 (4) SA 427
(W) at 431F-I.
8
2001
(2) SA 1239
(SCA) at 1243I-1244B.
9
Supra
at p 1037
in fin
. See also the comprehensive article by
Professor Sieg Eiselen which is critical of the judgment of the
court
a quo
–(2006)
SA Mercantile Law Journal
Vol 18
No 145 – 52.
10
See
Chinatex Oriental Trading Co v Ersken
supra
1998 (4) SA
1087(C)
1095F-1096C and
Tradex Ocean Transportation SA v M V
Silvergate (or Astyanax) and Others
1994 (4) SA 119
(D) at
121A-D.