Jordaan v Dijkhof (9967/2003) [2004] ZAWCHC 29 (26 October 2004)

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[2004] ZAWCHC 29
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Jordaan v Dijkhof (9967/2003) [2004] ZAWCHC 29 (26 October 2004)

9
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
[CAPE
OF GOOD HOPE PROVINCIAL DIVISION]
CASE NO: 9967/2003
In the matter between:
TIMOTHY JORDAAN Applicant
and
ARNOLDUS HOEGEN DIJKHOF Respondent
___________________________________________________________
JUDGMENT DELIVERED ON 26 OCTOBER 2004
H.J.
ERASMUS, J:
This is an application for leave to appeal against the
judgment I handed down on 13
th
September 2004.
In that judgment, I granted provisional sentence on
three judgments handed down against the applicant by the Courts of
the Principality
of Monaco.
At the hearing of the application, Mr Dickerson SC, who
appeared on behalf of the respondent, submitted that the applicant
has no
right of appeal against the grant of provisional sentence
against him. He relied on the judgment of the Supreme Court of Appeal
in
Avtjoglou v First National Bank of Southern
Africa Ltd
2004 (2) SA 453
(SCA).
Mr
Gess, on behalf of the applicant, sought to distinguish the judgment
of the Supreme Court of Appeal as not being applicable to
provisional
sentence granted on a foreign judgment.
At the outset, it is necessary to stress, as Stegmann J
did in
Scott-King (Pty) Ltd v Cohen
1999 (1) SA 806
(W) at 825G that the –
… statutory right of appeal which defendants enjoyed until 1982
under s 20(1)(a) and s 20(2)(b) by Act 59 of 1959, if leave to
appeal
could be obtained, was removed by the Appeals Amendment Act 105 of
1982. Under s 20 of Act 59 of 1959, as amended by Act 105
of 1982,
only a ‘judgment or order’ is appealable.
(See
also
Jones v Krok
[1994] ZASCA 177
;
1995
(1) SA 677
(A) at 684A—B and 687I. In what follows I shall refer to
this decision as
Jones v Krok 1995
).
The
characteristics of a ‘judgment or order’ were described as
follows in
Zweni v Minister of Law and Order
1993 (1) SA 523
(a) at 523I—J:
A ‘judgment or order’ is a decision which, as a general
principle, has three attributes, first, the decision must be final in
effect and not susceptible of alteration by the Court of first
instance; second, it must be definitive of the rights of the parties;
and third, it must have the effect of disposing of at least a
substantial portion of the relief claimed in the main proceedings.
In
Scott-King (Pty) Ltd v Cohen,
supra,
at 835I it was held that a provisional
sentence does not have any of these characteristics. This view was
endorsed by Zulman JA in
Avtjoglou v First
National Bank of Southern Africa Ltd, supra,
at 457H —458D:
First, the decision to grant provisional sentence is not final in
effect and is indeed susceptible of alteration by the Court hearing
the principal case, even as to the question of whether the document
relied upon was not liquid. … Secondly, provisional sentence
is by
no means definitive of the rights of the parties. The rights of the
parties being, in the case of the respondent, to obtain
a final
judgment for the amount it claims to be owing to it and in the case
of the appellant successfully resisting such claim.
Thirdly,
provisional sentence does not have the effect of disposing of any of
the relief claimed in the main proceedings. To state
the obvious such
relief is the respondent’s claim for the amount it avers is due and
owing to it. Put differently, the essential
issue between the
parties, shorn of any procedural matter, is whether or not the
appellant owes the money claimed. This issue has
clearly not been
determined finally by the provisional sentence.
In both
Scott-King (Pty) Ltd v
Cohen, supra,
and in
Avtjoglou
v First National Bank of Southern Africa Ltd, supra,
it is recognised that there is no single rule governing the
appealability of decisions on provisional sentence. In
Avtjoglou
v First National Bank of Southern Africa Ltd, supra,
at 458E Zulman JA states:
It is of course important to bear in mind that in determining the
nature and effect of a judicial pronouncement, not merely the form
of
the order must be considered, but also and predominantly, its effect.
The effect of the provisional sentence
in casu
is not final
but merely provisional in nature and not dispositive of the relief
claimed in the main proceedings.
In
Scott-King (Pty)
Ltd v Cohen, supra,
at 825D Stegmann J
states:
There is no single rule governing the appealability of decisions on
provisional sentence summonses in the Supreme Court. There are
distinctions to be made between the following categories
at least
(my emphasis): decisions granting provisional sentence; decisions
refusing provisional sentence on a ground which shows the provisional
summons to have been invalid; and decisions refusing provisional
sentence on a ground which does not undermine the validity of the
provisional sentence summons but leaves it to stand as a valid
summons in the principal case.
Thus the dismissal of an action for provisional sentence
on a ground which shows the provisional summons to have been invalid,
for
example, an action for provisional sentence on an illiquid
document, brings the proceedings to an end (
Barclays
National Bank Ltd v Wollach
1986 (1) SA 355
(C) at 359C—F). If the provisional sentence proceedings are at an
end, the judgment or order dismissing the action is final in
effect
and not susceptible of alteration by the Court of first instance. The
other requirements for a ‘judgment or order’, namely,
that it be
definitive of the rights of the parties and have the effect of
disposing of at least a substantial portion of the relief
claimed in
the main proceedings, are also satisfied (
Jones
v Krok 1995
at 688H—J).
The grant of provisional sentence may, in the
circumstances of a particular case, be final in effect. In
Maketha
v Limbada
1998 (4) SA 143
(W) the defendant
denied that it was his signature that appeared on the cheque on which
provisional sentence was sought against him.
Affidavits were filed
and the issue of the authenticity of the signature was decided in
favour of the plaintiff. Provisional sentence
was accordingly granted
against the defendant. On appeal, the question was raised whether the
provisional sentence so decreed was
a ‘judgment or order’ within
the meaning of s 20 of the Supreme Court Act 59 of 1959. Eloff JP
(Flemming DJP and Wunsh J concurring)
held that the court of first
instance had –
… disposed of the issue of authenticity of the appellant’s
signature in a manner which renders it pointless to go into the
principal
case. The provisional sentence order was in the
circumstances of the matter final in effect. The order is accordingly
appealable.
Mr Gess in support of his contention that the grant of
provisional sentence in this case is appealable, relies on the
following
dictum
in
Jones v Krok
1996 (2)
SA 71
(T) at 73E—F:
Normally the grant of provisional sentence is not appealable, but the
effect of the grant of provisional sentence, in the particular
circumstances of this case, is that there is nothing, in my view,
that the defendant can do procedurally to further his case in the
Transvaal Provincial Division. In particular, the invocation of Rule
8 cannot and will not assist him. For practical purposes, indeed
for
all purposes, the effect of order Nos 1 and 2 granted by the Court is
that they amount to a ‘judgment or order’ as contemplated
by s
20(1). I emphasise that the orders under consideration differ from a
normal provisional sentence judgment, where the grant of
such a
judgment is not the end of the matter for the defendant in the Court
of first instance.
In this case, to which I shall henceforth refer as
Jones v Krok 1996,
the applicant sought leave
to appeal against the grant of provisional sentence on a foreign
judgment. In
Jones v Krok 1995
the
applicant sought leave to appeal against the refusal of provisional
sentence on a foreign judgment. In both cases, leave to appeal
was
granted.
A foreign judgment is usually enforced in our Courts by
way of provisional sentence (
Jones v Krok
1995
, at 685F—H and the authorities cited
there). Although a foreign judgment does not comply with the
definition of a liquid document,
the practice of granting provisional
sentence on such a judgment has evolved on the basis that the
judgment of a court is
prima facie
the clearest possible proof of a debt due by the party condemned and
that the latter must be taken in law to have acknowledged his
indebtedness in the amount of the judgment (
Jones
v Krok 1995
, at 686A—B). The foreign
judgment relied upon must be final and conclusive in its effect and
must not have become superannuated
(
Jones v
Krok 1995
, at 689B —C; Herbstein & Van
Winsen
The Civil Practice of the Supreme Court
of South Africa
, 4
th
ed by Van Winsen
et al
(1997) 998 fn 350). In the recognition and acceptance of the foreign
judgment, the Court 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 (
Jones
v Krok 1995
, at 685E, 696G).
A foreign judgment which is final and conclusive in its
effect will be recognised and enforced if (i) 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; (ii) the recognition and
enforcement of the judgment by our Courts would not be contrary to
public policy; (iii)
the judgment was not obtained by fraudulent
means and (iv) the judgment does not involve the enforcement of a
penal or revenue law
of the foreign State (
Jones
v Krok 1995
, at 685B—D).
In
Jones v Krok 1995
provisional
sentence was refused by the court of first instance on the ground
that the foreign judgment in question was not final.
In other words,
provisional sentence was refused on a ground which shows the
provisional summons to have been invalid. The dismissal
of the action
for provisional sentence on the foreign judgment satisfied the
requirements of a ‘judgment or order’ set out in
Zweni v Minister of Law and Order
,
supra
,
at 523I—J. The order of the court of first instance refusing the
grant of provisional sentence was accordingly held to be appealable
(
Jones v Krok 1995
at
688H—J, 689A).
The crucial question in the present case is whether or
not the grant of provisional sentence in the particular circumstances
of the
case satisfies the requirements of a ‘judgment or order’
as set out in
Zweni v Minister of Law and
Order, supra,
at 523I—J. It is not in
dispute that all the requirements for the recognition and enforcement
of a foreign judgment have been satisfied.
In particular, it is not
disputed that the three judgments handed down against the applicant
by the Courts of the Principality of
Monaco are of final and
conclusive effect. The merits of those judgments cannot be
adjudicated upon by this Court.
In
Avtjoglou v First National Bank of Southern Africa Ltd, supra,
at 457H —458D (cited above) it was held that the grant of
provisional sentence on a liquid document is not final because the
essential
issue between the parties, whether or not the defendant
owes the money claimed, has not been determined finally by the
provisional
sentence. In this case, that issue has been finally
determined. Invocation of Rule of Court 8(8) or 8(10) cannot and will
not assist
the applicant.
The
only remaining issue between the parties, and the issue which is the
subject of the proposed appeal, pertains to the jurisdiction
of this
Court to have granted the provisional sentence. I have found that,
in the particular circumstances of this case, this Court
had
jurisdiction to adjudicate the claim for provisional sentence. That
is not a matter which can be further canvassed under the
rules
relating to provisional sentence.
The following conclusion reached by Kirk-Cohen J in
Jones v Krok 1996,
at
73H is, in my view, also applicable to the circumstances of this
case:
To contemplate any further proceedings in terms of the Rules relating
to provisional sentence, having regard to the nature of the
dispute
in question, would not only be pointless, it would be a waste of time
and money.
The judgment I gave has the finality necessary to
qualify as a judgment or order. The other requirements laid down in
Zweni v Minister of Law and Order, supra,
at 523I—J, namely, that it be definitive of the rights of the
parties and have the effect of disposing of at least a substantial
portion of the relief claim in the proceedings, are also satisfied.
I
am accordingly of the view that my judgment is appealable, provided
that the necessary leave is granted.
The
next question is whether the applicant should be granted leave to
appeal.
The principal contention raised by Mr Gess was that the
respondent had not discharged the
onus
of showing that the applicant, who has two residences, one in Monaco
and one in the Western Cape, was resident within the jurisdiction
of
this Court when the summons was served on him on 28
th
November 2003. Upon a conspectus of all the evidence, I came to the
conclusion that he was so resident at the time and that this
Court
had jurisdiction to entertain the plaintiff’s action.
In my view, there is no reasonable prospect that another
court will come to a different conclusion on this issue.
In
the result, I make the following order:
The
application for leave to appeal is dismissed with costs.
HJ ERASMUS, J