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[2012] ZAFSHC 249
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ACL Group (Edms) Bpk and Others v Qick Televentures FZE (2013 (1) SA 508 (FB)) [2012] ZAFSHC 249; [2012] ZAFSHC 145 (12 July 2012)
29
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 82/2012
In the matter between:-
ACL GROUP (EDMS)
BPK
…...................................................
1
st
Applicant
INTARA TRADING BK
….........................................................
2
nd
Applicant
ACL/INTARA
GESAMENTLIKE ONDERNEMINGS
…............
3
rd
Applicant
and
QICK TELEVENTURES
FZE
….................................................
Respondent
DELIVERED BY:
SNELLENBURG, AJ
HEARD:
21
JUNE 2012
DELIVERED:
12 JULY 2012
[1] This is an
application in terms of the provisions of section 19 of the Supreme
Court Act 59 of 1959 [‘
the Supreme Court Act’
] to
confirm jurisdiction [
ad fundandam jurisdictionem
] or found
jurisdiction [
ad confirmandam jurisdictionem
] by attachment of
certain movable assets of the respondent.
[2] The applicants, ACL
Group (Pty) Ltd, Intara Trading CC and ACL/Intara Gesamentlike
Ondernemings are
incola
of the area of jurisdiction of this
Court. The respondent is Qick Televentures FZE, a company established
and incorporated in the
United Arab Emeritis. It has registered
offices or a principal place of business at 111 Ras Al Khaimah,
United Arab Emirates.
[3] The respondent
entered into a contract with Nokia Siemens Network [‘the main
contract’] to, amongst other things,
supply, install, test,
complete and render other services for a fixed and/or mobile
telecommunications network in the Republic
of South Africa and
specifically to install telecommunication cables next to the N1
(national road) between Bloemfontein (Free
State province) and
Colesberg (Northern Cape province). On 14 February 2011 the
respondent was registered as an external company
in terms of section
322 of the Companies Act 61 of 1973 [‘the previous Act’],
which has subsequently been repealed
by the
Companies Act 71 of 2008
[‘the current
Companies Act&rsquo
;]. The ‘local’
registered address in terms of the aforesaid registration is at West
Wing, Birchwood Court, Montrose
Street 43, Gauteng province.
[4] The applicants allege
that the second applicant [‘the service provider’] and
the respondent concluded an oral agreement
for the supply of certain
subcontracting services which related to horizontal drilling and
ancillary services such as the rental
of certain equipment, which
agreements were subsequently contained in a written subcontracting
agreement, during March 2011. The
written agreement provides for the
supply, by the service provider, of specific services, associated
equipment and materials so
as to enable the respondent to satisfy its
obligations and liabilities under the main contract. The applicants
contend that the
written agreement does not correctly reflect the
service provider as it refers to ACL/Intara Trading (Pty) Ltd, whilst
it should
contain the description of the second respondent, to wit
Intara Trading CC. The applicants also allege that the first
applicant,
alternatively the first and third applicant entered into
several oral agreements with the respondent for the rental and supply
of drilling equipment and material.
[5] It is the applicants
case that the respondent is indebted to them for payment of the
amount of R4 437 670.00 arising
out of services duly
rendered and equipment and material supplied in terms of the various
agreements. The applicants intend to
issue summons against the
respondent for payment.
[6] The applicants
however allege that, by virtue of the respondent being a
peregrinus
defendant, they are required to attach certain movable assets of the
respondent in order to either confirm jurisdiction that already
exists or to found jurisdiction in this Court.
[7] It is trite that the
attachment to found jurisdiction is necessary to create jurisdiction
where no other
ratio jurisdictionis
(jurisdictional ground)
exists at all. If any recognised jurisdictional ground does exist,
then the
incola
still needs to confirm or strengthen the
court’s jurisdiction by attachment of property of the
peregrinus
defendant (or property wherein the
peregrinus
defendant has a material interest).
[8] Although the papers
became quite prolix, the respondent persists only with the following
grounds in the order as set out hereunder,
and in the alternative to
each other, in opposition to the application:
8.1 that the applicants
cannot attach any assets of the respondent to found jurisdiction as
the defendant is resident in the Republic;
8.2 that the applicants
cannot confirm jurisdiction as no
ratio jurisdictionis
exists;
8.3 that the applicants
should have approached the South Gauteng High Court to found or
confirm jurisdiction as the contract was
on the balance of
probabilities concluded in that court’s jurisdiction and the
respondent ‘resides’ there.
8.4 that the applicants
have failed to make out a prima facie case.
[9] It is convenient to
make certain general observations regarding applications for
attachment to confirm or found jurisdiction.
As explained by Harms JA
in
TSUNG v INDUSTRIAL DEVELOPMENT CORPORATION OF SA LTD
2006 (4) SA 177 (SCA) at para 4:
‘
The
practice of arrest or attachment to found or confirm jurisdiction was
firmly established in Holland by the 17th century, in
the interest of
incolae
and
from considerations of commercial convenience. It enabled them to
proceed in local courts against
peregrini
who
were, for the time being, physically within the jurisdiction area of
the court, or possessed property there. In addition to
founding or
confirming jurisdiction and to commence proceedings, an attachment
had, since those days, an additional function, and
that was the
provision of security, enabling the plaintiff, eventually, to execute
in his own jurisdiction. Pending the finalisation
of the proceedings,
the defendant could not alienate or encumber the attached property.’
The remedy of attachment
ad
fundandam jurisdictionem
in
order to create jurisdiction, or
ad
confirmandam jurisdictionem
to
confirm jurisdiction, are exceptional and extraordinary remedies and
should be applied with care and caution. An attachment or
arrest
serves also to provide an
incola
with property or security
in South Africa against which he can execute the judgment in the
event of his action being successful.
A
court to which the application is made has no discretion to refuse it
once the requirements for an order are met. In
LONGMAN
DISTILLERS LTD v DROP INN GROUP OF LIQUOR SUPERMARKETS (PTY)
Ltd 1990 (2) SA 906 (A)
at 914E - G Nicholas AJA held 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.'
(See also
NAYLOR
AND ANOTHER v JANSEN; JANSEN v NAYLOR AND OTHERS
2006 (3) SA
546 (SCA) at 559 para 27;
SIMON NO v AIR OPERATIONS OF EUROPE
AB AND OTHERS
1999 (1) SA 217 (SCA);
WEISSGLASS NO v
SAVONNERIE ESTABLISHMENT
1992 (3) SA 928 (A) at 937C –
F;
THERMO RADIANT OVEN SALES (PTY) LTD v NELSPRUIT BAKERIES
(PTY) LTD
1969 (2) SA 295 (A) at 302C—D.) In
NAYLOR
supra
Scott JA held at 560 C-D [para 27] that:
‘
It
follows that an applicant for an order of attachment or arrest to
found or confirm jurisdiction is under no obligation first
to invite
the respondent
peregrine
to
submit to the jurisdiction, nor does the latter enjoy a right to be
afforded an opportunity to submit to the jurisdiction before
the
applicant seeks an arrest or attachment order. (See Associated Marine
Engineers D (Pty) Ltd v Foroya Banki PF 1994 (4) SA 676
(C) at 688G -
J.)’
In the
NAYLOR
case the distinguished Judge also held at 561A that the
purpose of the attachment procedure is to assist an
incola
.
[10] In order to succeed
with an application for attachment
ad confirmandam jurisdictionem
,
the applicant must satisfy the following requirements on a balance of
probabilities, to wit:
(i) a prima facie cause
of action against the defendant;
(ii) that the defendant
is a
peregrinus
;
(iii) that the property
in which the
peregrinus
defendant has a beneficial interest is
within the Republic; and
(iv) that the cause of
action arose in the area of jurisdiction of the court.
In order to succeed with
an application for attachment
ad fundandam jurisdictionem
the
applicant must in addition to (i) and (ii) above prove that the
property in which the
peregrinus
defendant has a beneficial
interest is within the area of jurisdiction of the court.
[11] Mr Fischer, on
behalf of the respondent, argues that as a point of departure, the
applicants have failed to identify whether
they apply to confirm
jurisdiction, alternatively whether they apply to found jurisdiction.
The rationale for the distinction is
obvious from what has been set
out above. The requirements that the applicant needs to satisfy
regarding the afore-mentioned, as
stated above, also differs to some
extent. As far as the distinction goes, the submission is undoubtedly
correct. I do not agree
with the submission that the applicants had
to elect to apply for either the one or the other. The applicants
were entitled to
apply that the court ‘confirm or
[
alternatively
] found jurisdiction’ (my own insertion).
It created no uncertainty. What needs to be determined is whether the
applicants
have satisfied the requirements either to confirm or to
found jurisdiction.
[12] The submissions on
behalf of the parties clearly show that the real dispute, and the
crux of this matter, revolves around whether
the respondent is a
peregrinus
. The requirement relates to both an application to
confirm or found jurisdiction, as stated above. Although the
respondent admits
that it is a
peregrinus
of the area of
jurisdiction of this court, Mr Fischer, acting on behalf of the
respondent, submitted that the respondent’s
registration as
external company in terms of
section 322
, and the designation of a
registered address in terms of
section 170
of the previous Act, has
as consequence that it carries on business in the Republic of South
Africa and is as such sufficiently
resident in the Republic to confer
jurisdiction, especially insofar as it relates to the contract in
question. In amplification
of the argument, Mr Fischer relies on the
judgements in
SKJELBREDS REDERI A/S AND OTHERS v HARTLESS (PTY)
LTD
1982 (2) SA 739
(W) and
APPLEBY (PTY) LTD v DUNDAS
LTD
1948 (2) SA 905
(E). In the
SKJELBREDS
case
the court held that the mere fact that an external company has a
registered office or even a branch office, in addition to
the
registered office in the Republic, does not constitute residence for
the purpose of conferring jurisdiction on the Court. Vermooten
J held
that such external company will however be sufficiently resident if
the cause of action also arose from the business activities
of the
branch.
[13] If the respondent is
resident in the Republic, the application must (not may) be
dismissed. Section 28(1) of the Supreme Court
Act, which is
peremptory, reads:
‘
No
attachment of person or property to found jurisdiction shall be
ordered by a court of any division against a person who is resident
in the Republic.’
[14] Mr Van Rhyn, on
behalf of the applicants, relies on the judgment of Streicher J, as
he then was, in
JOSEPH AND ANOTHER v AIR TANZANIA CORPORATION
1997 (3) SA 34
(W), where the distinguished Judge held that an
external company cannot be said to be resident at its registered
address in terms
of section 322 and 170 of the previous Act.
[15] In the heads of
argument on behalf of the respondent it is postulated that the
respondent’s status is still governed
by section 322 and 170 of
the previous Act, as it was registered in terms of the said Act prior
to the date on which the current
Companies Act commenced
. The
applicants also argued the application on this basis. I cannot agree.
The current
Companies Act came
into effect on 1 May 2011. In terms of
the transitional arrangements contained in
section 2(6)
of schedule 5
of the current
Companies Act, an
external company that, immediately
before the effective date, was registered as such in terms of the
previous Act must be regarded
as having [been] registered on the
effective date as an external company in terms of the current
Companies Act. It
follows that, save for the objective fact that the
respondent, as foreign company, was duly registered as an external
company in
terms of the provisions of the previous Act on the date of
the commencement of the current
Companies Act, the
matter must be
decided in terms of the provisions of the current
Companies Act [71
of 2008].
[16] The current
Companies Act defines
a 'foreign company' as an entity incorporated
outside the Republic, irrespective of whether it is: (a) a profit, or
non-profit,
entity; or (b) carrying on business or non-profit
activities, as the case may be, within the Republic. An 'external
company' means
a foreign company that is carrying on business, or
non-profit activities, as the case may be, within the Republic,
subject to
section 23
(2).
Section 23
, which deals with the
registration and the registered office of an external company,
provides as follows:
‘
Registration
of external companies and registered office
(1) An external company
must register with the Commission within 20 business days after it
first begins to conduct business, or
non-profit activities, as the
case may be, within the Republic-
(a) as an external
non-profit company if, within the jurisdiction in which it was
incorporated, it meets legislative or definitional
requirements that
are comparable to the legislative or definitional requirements of a
non-profit company incorporated under this
Act; or
(b) as an external profit
company, in any other case.
(2) For the purposes of
subsection (1), and the definition of 'external company' as set out
in section 1, a foreign company must
be regarded as 'conducting
business, or non-profit activities, as the case may be, within the
Republic' if that foreign company-
(a) is a party to one or
more employment contracts within the Republic; or
(b) subject to subsection
(2A), is engaging in a course of conduct, or has engaged in a course
or pattern of activities within the
Republic over a period of at
least six months, such as would lead a person to reasonably conclude
that the company intended to
continually engage in business or
non-profit activities within the Republic.
(2A) When applying
subsection (2)(b), a foreign company must not be regarded as
'conducting business activities, or non-profit activities,
as the
case may be, within the Republic' solely on the ground that the
foreign company is or has engaged in one or more of the
following
activities:
(a) Holding a meeting or
meetings within the Republic of the shareholders or board of the
foreign company, or otherwise conducting
any of the company's
internal affairs within the Republic;
(b) establishing or
maintaining any bank or other financial accounts within the Republic;
(c) establishing or
maintaining offices or agencies within the Republic for the transfer,
exchange, or registration of the foreign
company's own securities;
(d) creating or acquiring
any debts within the Republic, or any mortgages or security interests
in any property within the Republic;
(e) securing or
collecting any debt, or enforcing any mortgage or security interest
within the Republic; or
(f) acquiring any
interest in any property within the Republic.
(3) Each company or
external company must-
(a) continuously maintain
at least one office in the Republic; and
(b) register the address
of its office, or its principal office if it has
more than one office-
(i) initially in the case
of-
(aa) a company, by
providing the required information on its Notice of Incorporation; or
(bb) an external company,
by providing the required information when filing its registration in
terms of subsection (1); and
(ii) subsequently, by
filing a notice of change of registered office, together with the
prescribed fee.
(4) A change contemplated
in subsection (3) (b) (ii) takes effect as from the later of-
(a) the date, if any,
stated in the notice; or
(b) five business days
after the date on which the notice was filed.
(5) The Commission must-
(a) assign a unique
registration number to each external company that has registered in
accordance with subsection (1);
(b) maintain a register
of external companies;
(c) enter the prescribed
information concerning each external company in the register; and
(d) in the case of an
external company whose name is a foreign registration number but does
not indicate the name of the foreign
jurisdiction in which it was
incorporated, append to its name on the registry the name of that
jurisdiction in a manner comparable
to that required for a company
under section 11 (3) (a).
(6) If an external
company has failed to register in terms of subsection (1) within
three months after commencing its activities
within the Republic, the
Commission may issue a compliance notice to that external company
requiring it to-
(a) register as required
by subsection (1) within 20 business days after receiving the notice;
or
(b) if it fails to
register within the time allowed in paragraph (a), to cease carrying
on its business or activities within the
Republic.’
[17] Section 170 and 322
of the previous Act provided as follows regarding the registration of
an external company and the designation
of a registered address by an
external company:
'170(1) Every company,
including every external company, shall have in the Republic -
(a) a postal address to
which all communications and notices may be addressed; and
(b) a registered office
to which all communications and notices may be addressed and at which
all process may be served.'
‘
322(1)
Every external company shall within twenty-one days after the
establishment of a place of business in the Republic lodge
with the
Registrar, in the prescribed manner-
(a)
a certified copy of the memorandum
of the company, and if the said memorandum is not in one of the
official languages of the Republic,
a certified translation thereof
in one of those languages;
(b)
a
notice under section 170 in the prescribed form of the registered
office and postal address of the company;’
[18] For the same
considerations as stated in
ISM INTER v MARALDO AND ANOTHER
1983 (4) SA 112
(TPD) at 114E-F, the cases dealing with this issue
under the previous Act, including those on which the parties rely,
cannot be
distinguished on the basis of the legislation only that was
interpreted. To my mind the current
Companies Act contains
similar
provisions regarding the registration and appointment of a registered
office, or put differently, the current
Companies Act does
not
contain provisions that can be said to materially affect the
reasoning and
ratio decidendi
of the previous judgments to
which I have been referred.
[19] It is trite that at
common law the residence of the defendant entrenches the jurisdiction
of the relevant forum. (See
JOSEPH AND ANOTHER v AIR TANZANIA
CORPORATION
1997 (3) SA 34
(W) at 37C-D;
BISONBOARD LTD
v K BRAUN WOODWORKING MACHINERY (PTY) LTD
[1990] ZASCA 86
;
1991 (1) SA 482
(A)
at 487C).
[20]
The question posed
in this matter is simply whether a foreign company which has been
duly registered as an external company in
terms of the
Companies Act
and
which conducts business in the Republic is resident in the
Republic for the purposes of section 28(1) of the Supreme Court Act.
For the reasons that follow, I am of the opinion that a duly
registered external company, conducting business in the Republic,
cannot be said to be resident in the Republic for purposes of section
28(1) of the Supreme Court Act, regardless that the cause
of action
(dispute) arises from the business activities of the external company
in the Republic.
[21] It is efficacious to
keep in mind that the
Companies Act deliberately
distinguishes
between domestic and external companies. Reference to a company in
the Act does not include a reference to an external
company. They
terms have different meanings and the requirements and obligations
pertaining a domestic company differs from the
requirements and
obligations of an external company. This was also the position under
the previous Act. Admittedly the current
Act contains provisions
regarding external companies that the previous Act did not. That much
is apparent by simply considering
section 23. Several sections in the
Companies Act deals
with external companies, for example the
obligation to furnish annual returns
(section 33(2)
and so forth). A
detailed exposé on the different sections and the differences
between the current
Companies Act and
previous
Companies Act is
,
however, not necessary for purposes of this judgment. In
WISEMAN
v ACE TABLE SOCCER (PTY) LTD
1991
(4) SA 171
(W) at 176F – I, it was held that the purpose of
registration of an external company under the previous Act, was to
ensure
that an external company, after complying with such
procedures, will be on equal par with a South African incorporated
company.
That
is also the purpose of registration of an external company under the
present Act. That does not mean that an external company
is resident
in the Republic.
[22] Section 23 requires
that an external company continuously maintain at least one office in
the Republic and register the address
of its office, or its principal
office, if it has more than one office. Section 322, of the previous
Act, also required that an
external company shall have in the
Republic a registered office to which all communications and notices
may be addressed and at
which all process may be served. In essence,
both require the same thing. As has consistently been held, the mere
fact that an
external company has a registered office or even branch
offices and is conducting business in the Republic is not enough to
make
it resident in the Republic for the purposes of section 28(1) of
the Supreme Court Act.
[23] In
JOSEPH AND
ANOTHER v AIR TANZANIA CORPORATION
supra
, Streicher J,
pointed out that the provisions regarding the keeping of official
documents at the registered address of a domestic
company do not
apply to an external company. This is also the position in the
(current)
Companies Act. The
Judge further held at 38H-39B that:
‘
These
provisions relating to external companies do not attract the
inference that the Legislature intended to endow the registered
office of an external company with the quality of being the place to
which the world can look as the legal home and administrative
centre
of the external company. In my view they indicate the opposite when
compared with the provisions relating to the registered
address of a
domestic company.
Moreover, considerations
of commercial convenience and expediency militate against viewing the
registered office of an external
company as the residence of the
external company. Should such registered office be deemed to be the
residence of an external company,
any
peregrinus
would be entitled to sue the external company in the
Court in whose area of jurisdiction the external company's registered
office
in the Republic is situated, wherever the cause of action may
have arisen. The Legislature could, in my view, not have intended
such a result. In the premises, in my view, an external company
cannot be said to be resident at its registered office in terms
of
s
322
and
s 170
of the
Companies Act.’
The ratio is equally
relevant to the current
Companies Act.
[24
] In
DAIRY BOARD
v JOHN T RENNIE & CO (PTY) LTD
1976 (3) SA 768
(W) it was
held that a domestic company registered in South Africa resides in
law where the registered office is. If its principal
place of
business is situated elsewhere it may also reside at the latter
place. The finding was subsequently confirmed in
BISONBOARD LTD
v K BRAUN WOODWORKING MACHINERY (PTY) LTD
[1990] ZASCA 86
;
1991 (1) SA 482
(A). The
ratio decidendi
was however distinguished in
JOSEPH
AND ANOTHER v AIR TANZANIA CORPORATION
1997 (3) SA 34
(W) at
37C-D, on the basis that the same did not apply to an external
company. In
LEIBOWITZ T/A LEE FINANCE v MHLANA AND OTHERS
2006 (6) SA 180
(SCA), it was held that the principal place of
business of a company for jurisdictional purposes, is the place where
the central
control and management of the company is situated. It is
not the respondent’s case that the central control and
management
of the company is situated at its registered address in
the Republic. It also appears unlikely that a foreign company would
have
the seat of its central control and management in another
country.
[25] To this end, and as
stated, the court in
SKJELBREDS REDERI A/S AND OTHERS v
HARTLESS (PTY) LTD
1982 (2) SA 739
(W), on which the
respondent relies, also held that the mere fact that an external
company has a registered office and branch office
in the Republic
(and conducts business in the Republic) does not constitute residence
for the purpose of conferring jurisdiction
on the Court. In that
judgment however the court, as stated, held that the cause of action
(the dispute) also needed to arise out
of the business of the
external company for it to be resident. This is also referred to as
the
causa
qualification. The court followed a long line of
cases with this finding. See
LUNT v BALMORAL DIAMOND MINING CO
LTD
(1906) 10 HCG 58 at 59 and
APPLEBY (PTY) LTD v
DUNDAS LTD
1948 (2) SA 905
(E) at 909-910. The
SKJELBREDS
ratio was confirmed in
ISM INTER LTD v MARALDO AND ANOTHER
,
supra
. I cannot agree with this line of reasoning. I fail to
understand why the mere fact that the cause of action arises out of
the
business activities of the external company will make it
resident, whilst had the cause of action not arisen out of the
business
activities of the company, it would not have been resident.
I am fortified in my view in light of the finding by Harms JA in
TSUNG v INDUSTRIAL DEVELOPMENT CORPORATION OF SA LTD
[2006] ZASCA 28
;
2006 (4) SA 177
(SCA) at para 3:
‘
In
the present context, the difference between an arrest or attachment
ad
fundandam jurisdictionem
and
one
ad
confirmandam jurisdictionem
is
of no consequence.
1
The
reason is that, if the defendant is a
peregrinus
and
whether or not the court has jurisdiction over the cause, eg because
the cause of action arose within the jurisdiction or jurisdiction
exists
ratione
delictus
or
ratione
contractus
,
an attachment or arrest is essential for the exercise of
jurisdiction: 'A recognised
ratio
jurisdictionis
by
itself will not do.'
2
With
'jurisdiction' is meant the power to adjudicate upon a particular
case and to give effect to the judgment.’
3
To my mind the findings
of the Supreme Court of appeal in
LEIBOWITZ T/A LEE FINANCE v
MHLANA AND OTHERS
and
TSUNG v INDUSTRIAL DEVELOPMENT
CORPORATION OF SA LTD
, read with the finding in the
JOSEPH
case (supra) settles the matter.
[26] The decision in
SKJELBREDS REDERI A/S AND OTHERS v HARTLESS
(PTY) LTD
supra
,
was considered by the Appeal Court and reversed, but the Court of
Appeal, significantly, did not confirm the court’s findings
with regards to this issue. That Court held that in light of its
finding regarding others issues, that the appeal had to succeed
and
that it was therefore not necessary to deal with the specific point.
(See
SKJELBREDS REDERI A/S AND OTHERS v
HARTLESS (PTY) LTD
1982 (2) SA 710
(A) at
p 729F - G.) From the afore-mentioned it is clear that the mere
registration and continuous maintenance of an office in
the Republic
and conducting of business, does not in itself make the external
company resident in the Republic. The fact that the
cause of action
(the dispute) arose from the business activities that the external
company conducts in the Republic does not make
it resident for
purposes of
section 28(1).
It will merely serve as a jurisdictional
ground at common law which, depending on whether it arose in the area
of jurisdiction
where the
incola
is
resident, may entitle the
incola
to
confirm the court’s jurisdiction.
[27] It is necessary,
notwithstanding my finding above, to deal with Mr Fischer’s
submission that Streicher J, when considering
the matter in the
JOSEPH
case,
supra
, was apparently
not referred to the dictum in
SKJELBREDS
REDERI A/S AND OTHERS v HARTLESS (PTY) LTD
1982
(2) SA 739
(W). The Judge admittedly does not refer to the judgment.
That does not mean that the Judge did not consider the judgment or
the
reasoning on which the judgment relies. In the
JOSEPH
judgment the case of
ISM INTER
LTD v MARALDO AND ANOTHER
1983 (4) SA 112
(TPD), was thoroughly considered. In the
ISM
case the judgments in,
inter
alia
,
SKJELBREDS
supra
and
APPLEBY
(PTY) LTD v DUNDAS LTD
1948 (2) SA 905
(E), with regards to the so-called ‘cause of action
qualification’, were considered and discussed. Streicher J
clearly
considered the reasoning in the respective cases of
SKJELBREDS
and
APPLEBY
.
[28] I am satisfied that
the applicants have therefore satisfied the requirement to prove that
the Respondent is a
peregrinus
defendant.
[29] The applicants must,
either to confirm or found jurisdiction, show the existence of a
prima facie cause of action against the
defendant.
As
reiterated in
SIMON
NO v AIR OPERATIONS OF EUROPE AB AND OTHERS
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA) at
228C-D, this requirement is satisfied if:
‘
.
. . an applicant shows that there is evidence which, if accepted,
will establish a cause of action. The mere fact that such evidence
is
contradicted will not disentitle the applicant to relief - not even
if the probabilities are against him. It is only where it
is quite
clear that the applicant has no action, or cannot succeed, that an
attachment should be refused. (MT Tigr: Owners of the
MT Tigr and
Another v Transnet Ltd t/a Portnet (Bouygues Offshore SA and Another
Intervening)
1998 (3) SA 861
(SCA) at E 868B--H)’
(See also
LONGMAN
DISTILLERS LTD v DROP INN GROUP OF LIQUOR SUPERMARKETS (PTY) LTD
[1990] ZASCA 39
;
1990 (2) SA 906
(A) at 914E-F).
[30] The respondent
disputes that the applicants have satisfied this requirement, because
it is alleged that the applicants rely
on ‘so-called’
amendments and alterations to the contract and its pricing as basis
for their cause of action. The respondent
says that any amendments
will be hit by the ‘non-variation’ clause (or so-called
Shifren
principle),
as the amendments and alterations were not in writing.
[31] I am satisfied that
the applicants have passed the low threshold to satisfy this
requirement. The papers show,
prima
facie
,
correspondence from the respondent regarding the amendment of orders
and the pricing for drilling. Furthermore, the first and/or
third
applicant relies on separate oral agreements with the respondent. The
respondent itself admits payments for the rental of
equipment. It is
clear that services were rendered. At the very least, it cannot be
found if the evidence is assessed
as
a whole, that the applicants clearly have no action, or cannot
succeed. The same applies for the intended claim for rectification.
[32] The applicants also
need to prove, in order to satisfy the third requirement, that the
property which they seek to attach
(a) is property in which
the respondent has a beneficial interest;
(b) that the property is
within the Republic for purposes of confirming jurisdiction if the
cause of action arose in the court’s
area of jurisdiction; or
(c) that the property is
within this court’s area of jurisdiction if they seek to found
jurisdiction.
[33] It is common cause
between the parties that the property is not situated in the area of
jurisdiction of this court, but that
it is situated in the Republic.
Although the respondent has not disclosed the exact location, it is
common cause that the property
was situated in the Northern Cape
Province, where it would be utilised, when these proceedings were
initiated. The respondent denied
in its papers that it is the owner
of the property. The evidence on a whole shows that, at the very
least, the respondent has a
beneficial interest in the property.
[34] The applicants must
lastly prove that the cause of action arose in the court’s area
of jurisdiction for confirmation
of jurisdiction. On the evidence as
it stands it cannot be found that any of contracts on which the
applicants rely, were concluded
in this Court’s area of
jurisdiction. The respondent however admits that part of the contract
was to be executed in the Free
State Province. This is also supported
by the invoices which were rendered. As was held in
ROBERTS
CONSTRUCTION CO LTD v WILLCOX BROS (PTY) LTD
1962 (4) SA 326
(A), a
High Court has jurisdiction in terms of a cause of action in terms of
section 19(1)(
a
)
of the Supreme Court Act when a material element of the cause of
action falls in that court’s jurisdiction, such as partial
performance of the contractual obligations in the area of
jurisdiction of such court. This court will therefore have
jurisdiction
over the cause of action. As such a jurisdictional
ground exists that can be confirmed to strengthen the court’s
jurisdiction.
(See also
THOMAS
v BMW SOUTH AFRICA (PTY) LTD
1996
(2) SA 106
(C).)
[35] For these reasons I
am satisfied that the applicants have met all the requirements for an
order that the property of the respondent
be attached
ad
confirmandam jurisdictionem
.
[36] In the result I make
the following order:
The application
succeeds;
An order is granted in
terms of prayer 1 of the applicants Notice of Motion;
The attachment will
lapse if the applicants fail to institute an action in this division
against the respondent within 30 days
after this order, the day of
the order to be excluded and the last day to be included in
calculation of the 30 day period;
The respondent is
ordered to pay the costs of the application, such costs to include
the costs occasioned by the employment of
two counsel.
_________________
SNELLENBURG, AJ
APPEARANCES:
On
behalf of the applicant:
Adv AJR van Rhyn SC,
assisted by
Adv P du P
Greyling
Eugene Attorneys,
Bloemfontein
On behalf of first
respondent:
Adv PU Fischer
,
Instructed by:
Neuhoff Attorneys,
Bloemfontein
NS/sp
1
Ghomeshi-Bozorg
v Yousefi
1998 (1) SA 692
(W), where a contrary view was held, it
is, to that extent, wrong.
2
Ewing
McDonald & Co Ltd v M & M Products Co
[1990] ZASCA 115
;
1991 (1) SA 252
(A) at
258D - G; Naylor v Jansen; Jansen v Naylor
[2005] 4 All SA 26
(SCA)
in para [20]
3
Steytler
NO v Fitzgerald
1911 AD 295
at 346; Hugo v Wessels
1987 (3) SA 837
(A) at 849H; Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd
(In Liquidation)
1987 (4) SA 883
(A) at 886D - E.