About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2002
>>
[2002] ZAWCHC 55
|
|
Maschinen Frommer GMBH & co kg v Trisave Engineering & Machinery Supplies (PTY) limited (415/02) [2002] ZAWCHC 55; [2003] 1 All SA 453 (C); 2003 (6) SA 69 (C) (10 October 2002)
IN THE
HIGH COURT OF SOUTH AFRICA
Reportable
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
415/02
DATE:
10-10-2002
In
the matter between:
MASCHINEN
FROMMER GmbH & CO KG
Plaintiff
and
TRISAVE
ENGINEERING & MACHINERY SUPPLIES (PTY) LIMITED
Defendant
J
U D G M E N T
VAN
REENEN, J:
The 4th Civil Chamber of the Koblenz High Court on 30 November 2000
ordered Trisave Engineering and Machinery Supplies (Pty) Ltd
(the
defendant) a company incorporated and trading in the Republic of
South Africa, to pay Maschinen Frommer GmbH & Co KG, a
company
with a limited liability incorporated and trading in Germany, (the
plaintiff) an amount of DM 51 500 plus interest at 5%
per annum as
from 13 February 1999.
The
amount of DM 51 500 represents damages suffered by the plaintiff as a
result of a breach by the defendant of an agreement concluded
during
November 1998, in terms whereof the defendant purchased from the
plaintiff a Heidelberg Speedmaster printing machine Model
102 VP for
an amount of DM 395 000 CIF Durban.
As
the defendant failed to discharge the judgment debt, the plaintiff on
25 February 2002 issued a provisional sentence summons out
of this
Court in which it claimed payment of an amount of DM 51 500,
alternatively, the Euro equivalent thereof together with interest
thereon at 5% per annum as from 13 February 1999 to date of payment,
on the following grounds set out in paragraph 2 of the summons:
"(i)During
or about May 1999 and in the Koblenz High Court, Koblenz, Germany,
the Plaintiff instituted an action against the
Defendant based on a
breach of contract committed by the Defendant.
(ii)The
Koblenz High Court was a competent jurisdiction to hear and determine
the Plaintiff's claim by virtue of the Defendant's submission
to the
jurisdiction of the said Court in terms of the contract on which the
Plaintiff sued, alternatively the parties had at all
material times
intended that the Koblenz High Court would have jurisdiction to hear
all claims arising from their contract, alternatively,
by the conduct
of its defence in the Koblenz High Court the Defendant submitted to
the jurisdiction of the Court.
(iii)On
20 November 2000 the Koblenz High Court handed down a judgment in
favour of the Plaintiff in the sum of DM 51 500 (FIFTY ONE
THOUSAND
AND FIVE HUNDRED DEUTSCHE MARKS), together with interest thereon at
the rate of 5% per annum as from 13 February 1999.
(iv)The
said judgment became final on 15 March 2001, after which date it was
no longer appealable.
(v)The
said judgment is not subject to an appeal, has not been rescinded,
has not prescribed and is, according to German law, still
an
enforceable judgment. A certified copy of the judgment and a sworn
translation thereof are annexed hereto marked 'A' and 'B'
respectively.
(vi)The
principal place of business of the Defendant is within the area of
jurisdiction of this Honourable Court.
(vii)The
Defendant has to date failed to pay the Plaintiff the amount of the
aforesaid German judgment or any part thereof."
The
defendant opposed the provisional sentence proceedings and in terms
of the provisions of Rule 8(5), timeously filed an affidavit
in which
it set out the grounds on which it disputes liability of the
plaintiff's claim and the latter, in turn, filed a replying
affidavit.
Mr
Gess
,
who represented the defendant, opposed the granting of provisional
sentence on two grounds. The first was that the provisional
sentence
summons is defective for lack of authentication of the foreign
judgment annexed to it. The second was that the Koblenz
High Court
did not have jurisdiction to hear and determine the action that the
plaintiff had instituted against the defendant because
the latter had
not received a copy of the general terms and conditions of sale that
contained a choice of law clause (Clause VIII)
and a submission to
jurisdiction clause (Clause IX(2)) and accordingly;
a)German
law did not apply to the parties' contract, and
b)the
defendant had not submitted to the jurisdiction of the Koblenz High
Court; that the plaintiff and the defendant had not intended
that
thát Court should have jurisdiction to hear any claims against the
latter; and that the defendant at all material times disputed
that
the Koblenz High Court had jurisdiction.
It
is not in dispute that the judgment annexed to the provisional
sentence summons has not been authenticated in accordance with the
provisions of Rule 63(2) which requires that any document executed in
any place outside the Republic of South Africa shall be deemed
to be
sufficiently authenticated for the purposes of use therein, if it is
duly authenticated at such foreign place by certain designated
functionaries. "Document" is in Rule 63(1) defined as
meaning:
"Any
deed, contract, power of attorney, affidavit or other writing, but
does not include any affidavit or solemn or attested
declaration
purporting to have been made before an officer prescribed by section
eight of the Justices of the Peace and Commissioners
of Oaths Act, No
16 of 1963."
and,
"authentication" has been defined as meaning, when applied
to a document, the verification of any signature thereon.
Mr
Melunsky
who represented the plaintiff, contending that the
ejusdem
generis
rule
finds application, submitted that because the wide meaning of the
concept "other writing" in the definition of the
word
"document" is restricted by the class or
genus
of words of limited meaning that precede it, a judgment of a foreign
Court is not encompassed therein as it, in contradistinction
to the
other mentioned documents which are executed by natural and juristic
persons, emanate from a court of law. Although that
submission is
superficially attractive, I prefer to deal with the objection to the
absence of authentication on a different basis.
The
rules relating to the authentication of a document executed in
foreign countries have been designed to ensure that such documents
are genuine before use can be made thereof in the Republic of South
Africa. The prescribed formalities are not mandatory, and the
genuineness of such documents may be proved on a balance of
probabilities by means of direct or circumstantial evidence or both
(See:
Chopra
v Sparks Cinemas (Pty) Ltd & Another
1973(2) SA 352 D&CLD at 358B-D; see also
Ex
parte
Holmes & Co (Pty) Ltd
1939 NPD 301
;
Friend
v Friend
1962(4) SA 115 (E)).
It
is apparent from the summons that the application for provisional
sentence is based on a judgment of the Koblenz High Court. Paragraph
2(v) of the summons specifically states that a certified copy of the
judgment of that court, as well as a sworn translation thereof,
have
been annexed thereto.
The
defendant in its opposing affidavit, whilst asserting that the
provisional sentence summons did not comply with the provisions
of
Rule 8(3), because the document in which the choice of law and
submission to jurisdiction clauses on which the plaintiff relies
has
not been annexed, did not challenge the genuineness of the judgment
annexed to the provisional sentence summons. As already
stated, Rule
8(5) pertinently requires a defendant to set out the grounds on which
liability is disputed in his/her/its opposing
affidavit.
Although
provisional sentence proceedings are initiated by means of summons
they, if opposed, proceed by means of the filing of opposing
and
replying affidavits. As in the case of ordinary proceedings (See:
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
1999(2) SA 279 (W) at 323G) such affidavits have the purpose, not
only of placing evidence before the Court, but also of defining
the
issues between the parties. It appears to me to be axiomatic that
where an averment in a provisional sentence summons is not
challenged
in the opposing affidavit, the correctness thereof is accepted.
I
am in agreement with the submission made by Mr
Melunsky
,
that it is inconceivable that if the judgment annexed to the
provisional sentence summons had not been genuine, the defendant
would
have said so. The defendant in this matter did not only fail
to challenge the genuineness of the annexed judgment, but in its
opposing
affidavit accepted that the judgment sued on is that of the
Koblenz High Court in that it, in support of its defence, relies on
excerpts
therefrom. The following excerpt quoted by the defendant,
in my view, affirms the genuineness of the judgment of the Koblenz
High
Court:
"I
therefore humbly submit that the Koblenz High Curt did not have
jurisdiction to hear the action or
grant
the judgment on which this application for provisional sentence is
based."
(underlining
provided)
The
present one is not an instance where judgment was granted in the
defendant's absence. On the contrary, it actively opposed the
proceedings in the Koblenz High Court and, in all probability, has
first-hand knowledge of its contents as, according to the papers,
a
copy thereof was served on its legal representatives in Germany on 12
December 2000.
As
the plaintiff has succeeded in showing on a balance of probabilities,
by means of evidence other than the authentication in terms
of Rule
63(2), that the judgment of the Koblenz High Court annexed to the
provisional sentence summons is genuine, the defendant's
objection
based on the non-compliance with the provisions thereof is devoid of
any merit.
Corbett,
CJ
in
Jones
v Krok
1995(1) SA 677 (A) at 685B-G said that a judgment of a foreign court
will be enforced by our courts provided:
"(i)that
the Court which pronounced on 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 judgment 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 a foreign state;
(vi)that
enforcement of the judgment is not precluded by the provisions of the
Protection of Business Act 99 of 1978 (as amended)."
The
only one of the aforementioned requirements that is being challenged
by the defendant is the international jurisdiction or competence
of
the Koblenz High Court.
A
judgment of a foreign court sounding in money and granted against a
natural person, will be recognised and enforced by South African
courts if, firstly, the defendant was physically present within the
state to which the foreign court belongs at the time of the
commencement
of the action; secondly, if at the time of the
commencement of the action the defendant, although not physically
present within such
state, was either domiciled or resident there;
and thirdly, the defendant has submitted to the jurisdiction of the
foreign court.
In the case of a juristic person the analogue of
physical presence is the transaction of business (See:
Reiss
Engineering Co Ltd v Insamcor (Pty) Ltd
1983(1) SA 1033 (W) at 1037H-1038C;
Purser
v Sales
;
Purser
and Another v Sales and Another
2001(3) SA 445 (SCA) at 450J-451E).
As
it is common cause that the defendant was not domiciled nor
physically present in Germany at the time the plaintiff instituted
action against the defendant in the Koblenz High Court, the
international jurisdiction of that court, according to the principles
of South African law could, in the instant case, be based only on a
submission to its jurisdiction (See:
Purser
v Sales
;
Purser
and Another v Sales and Another
(
supra
)
at 450J-451B). A submission can be express or tacit (See:
Standard
Bank Ltd v Butlin
1981(4) SA 158 (D) at 161H-162B.
It
is now generally accepted that where a defendant in provisional
sentence proceedings to enforce a judgment of a foreign court,
challenges the international jurisdiction or competence of such a
court, the
onus
thereanent rests on the plaintiff (
Reiss
Engineering Co Ltd v Insamcor (Pty) Ltd
(
supra
)
at 1037C;
Zwyssig
v Zwyssig
1997(2) SA 467 (W) at 472C-F;
Erskine
v Chinatex Oriental Trading Co
2001(1) SA 817 (C) at 820D-I). Such an
onus
has to be discharged on a balance of probabilities (See:
Blanchard,
Krasner & French v Evans 2002(4) SA 144 (W) at 148G-I).
The
plaintiff relies on an express as well as a tacit submission to the
jurisdiction of the Koblenz High Court on the part of the
defendant.
The
express submission is based on the terms of clause IX(2) of the
plaintiff's general terms and conditions of sale which the plaintiff
contends form part of the agreement of sale entered into between the
plaintiff and the defendant as the German equivalent of the
words
"our general terms and conditions of sale apply" appear on
a
pro
forma
invoice the plaintiff sent to the defendant on 23 November 1998 in
respect of the sale of the Heidelberg Speedmaster printing machine,
which terms and conditions are printed on the reverse side of all its
"official documents". The concept "official
documents" has not been elucidated.
The
said clause, translated from German into English, provides as
follows:
"IX(2)If
the purchaser is a registered merchant, the exclusive venue
(jurisdiction) for all lawsuits arising from contracts,
including
litigation relating to bills of exchange and cheques, is the
Armtsgericht (AG) (=lower court). Neuwied/Rhein or the Landgericht
(LG) (=high court) Linz/Rhein. However, we reserve the right to sue
the purchaser in the court which has jurisdiction over his place
of
business."
The
defendant's disavowal that the plaintiff's general terms and
conditions of sale form part of the contract of sale between the
plaintiff and the defendant, is based thereon that whilst it admits
that it received the
pro
forma
invoice of 23 November 1998, it did not receive a copy of the
document embodying them and that it was unaware of the contents
thereof.
Whilst
a South African court called upon to enforce a foreign judgment is
not permitted to 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 (See:
Jones
v Krok
supra
at 685E), it will adjudicate any jurisdictional fact necessary to
establish international competency or jurisdiction (See:
Coluflandres
Ltd v Scania Industrial Products Ltd
1969(3) SA 551 (R) at 560F-G;
Morrisby-White
v Morrisby-White
1972(3) SA 222 (R) at 225H-226A;
Lawsa
(1st Reissue) Vol 2, paragraph 476). Accordingly, this Court is at
liberty to enquire into whether the plaintiff's general terms
and
conditions of sale form part of the agreement between the plaintiff
and the defendant.
That
enquiry proceeds from the premise that the defendant does not deny
that the German equivalent of the words "our general
terms and
conditions of sale apply" appeared on the
pro
forma
invoice of 23 November 1998 and, furthermore, did not assert that its
human functionaries had not seen or read them. Its case is
that it
had not received a copy thereof. The
onus
of showing, on a balance of probabilities, that the said terms and
conditions form part of the agreement of sale between the plaintiff
and the defendant clearly rests on the former.
In
accordance with which system of law must it be determined whether or
not, in the circumstances enumerated above, the plaintiff's
general
terms and conditions of sale form part of the contract of sale
between the plaintiff and the defendant? It is axiomatic
that until
it is found that such terms and conditions do form part of the
agreement of sale, the terms of the choice of law and the
submission
to jurisdiction clauses embodied therein, cannot have any influence
on the enquiry.
It
appears to be common cause that the real enquiry is whether the
general terms and conditions of sale subsequently became part of
the
terms of the agreement of sale concluded on 20 November 1998. Logic
dictates that whether that happened or not should be determined
with
reference to the proper law of the agreement of sale so that the
necessity to invoke the putative proper law (See:
Lawsa
(1st Reissue) Vol 2, paragraphs 463 and 464) does not arise. In
terms of South African law the
lex
loci contractus
governs the nature, the obligations and the interpretation of a
contract. The
locus
contractus
is the place where the contract was entered into, except if it is to
be performed elsewhere, in which event the latter place is considered
to be the
locus
contractus
(See:
Standard
Bank of South Africa Limited v Efroiken and Newman
1924 AD 171
at 185).
In
terms of the agreement of sale, the printing machine in question was
sold CIF Durban. In a contract of that nature, the seller's
obligation is performed by the delivery of the relevant documentation
and not the actual delivery of the goods sold (See:
Standard
Bank of South Africa Limited v Efroiken
(
supra
)
at 190;
Frank
Wright (Pty) Ltd v Corticas "BCM" Ltd
1948(4) SA 456 (C) at 464;
Siemens
Ltd v Offshore Marine Engineering Ltd
1993(3) SA 913 (A) at 922 B-D). Where, as in the instant case, the
agreement is silent as regards the place where delivery of the
documents must be tendered and, absent evidence of a trade usage or
course of business between the parties, the obligation is to
deliver
the documents at the buyer's place of business (See:
Frank
10-10/9:57
Wright
/
Wright
(Pty) Ltd v Corticas "BCM" Ltd
(supra)
at 463) which in the instant case is Cape Town.
I
accordingly incline to the view that the question whether the
plaintiff's general terms and conditions of sale form part of the
agreement of sale between the plaintiff and the defendant must be
determined in accordance with South African law as the proper law
of
the contract of sale that was concluded on 20 November 1998.
As
already stated, the defendant admits having received the
pro
forma
invoice of 23 November 1998 and does not deny that its human
functionaries had seen the German equivalent of the words "our
general terms and conditions of sale apply". All that it denies
is that it had received a copy thereof and that it was aware
of the
contents thereof. Whether that denial is sufficient to exclude the
plaintiff's general terms and conditions of sale from
forming part of
the terms of the agreement of sale between the plaintiff and the
defendant will depend on the outcome of the enquiry
whether the
plaintiff was reasonably entitled to have assumed that the defendant,
by having on 1 December 1998 by facsimile transmission
confirmed its
order for the purchase of the particular printing machine, assented
to the terms embodied in the plaintiff's general
terms and conditions
of sale or was prepared to be bound by them - without having read
them - on the basis of the doctrine of
quasi
mutual assent. It will be so bound if the plaintiff did what was,
judged objectively, reasonably sufficient to bring it to the
attention
of the defendant that such terms and conditions would apply
to the agreement of sale (See:
Durban's
Water Wonderland (Pty) Ltd v Botha and Another
1999(1)
SA 982 (SCA) at 991F-992A).
Although
the German equivalent of the words "our general terms and
conditions of sale apply" on the
pro
forma
invoice of 23 November 1998 are not particularly prominent, the
plaintiff, in my view, did take reasonably sufficient steps to bring
the fact that such terms and conditions of sale applied to the notice
of the defendant. The defendant did not put it in issue and,
furthermore, did not endeavour to allege that it was not aware of the
said phrase.
I
accordingly incline to the view that the plaintiff's general terms
and conditions of sale form part of the terms of the agreementof
sale
between the plaintiff and the defendant. The result is that in
addition to clause IX(2), clause VIII - the latter whereof provides
as follows:
"The
law of the Federal Republic of Germany applies."
is
applicable to the agreement of sale between the plaintiff and the
defendant.
A
consequence of thát conclusion is that the question whether clauses
VIII and IX(2) of the plaintiff's general terms and conditions
of
sale constitute an effective submission to the jurisdiction of the
Koblenz High Court must be determined in accordance with the
contractual proper law, namely German law.
The
Koblenz High Court found that it enjoyed international competence or
jurisdiction on two grounds. The first is
"...a
valid agreement on jurisdiction deriving from the choice of
applicable law"
(clause
VIII of the general terms and conditions of sale) and the second is
"a valid prorogation of jurisdiction" by virtue
of the fact
that the parties to the agreement are competent traders (clause IX(2)
of the general terms and conditions of sale).
As the finding of the
Koblenz High Court that it enjoys jurisdiction is being challenged
and this Court is required to determine
on the basis of German law
whether that Court enjoyed international competence or not, it in my
view, would be inappropriate to rely
on that Court's findings as
constituting proof of German law.
It
is trite that a South African Court cannot take judicial notice of
what the law of a foreign state is, unless that law can be
ascertained
readily and with sufficient certainty
(section 1(1)
of
the
Law of Evidence Amendment Act, No. 45 of 1988
). Compliance with
those requirements will be dependent upon access to authoritative
sources of the relevant foreign law (See:
Harnischfeger
Corporation and Another v Appleton and Another
1993(4) SA 479 (W) at 485C-G (that part of the decision is not
affected by the reversal of parts of the judgment on appeal)). Due
to the limited authoritative sources of German law this Court has
access to, it is not possible to ascertain readily and with
sufficient
certainty what the criteria are upon which courts in
Germany exercise jurisdiction and accordingly, is not in a position
to take
judicial notice thereof.
Each
aspect of foreign law is a factual question that has to be proved by
someone with the necessary expertise (See:
Schlesinger
v Commissioner for Inland Revenue
1964(3) SA 389 (A) at 396G;
Harvesters
of Namibia (Pty) Ltd v Unterweser Reederei GmbH of Bremen
1986(4) SA 865 (C) at 874F). Neither of the parties have considered
it necessary to place any expert evidence before this Court
so as to
enable it to determine whether in terms of the law of Germany the
provisions of clauses VIII and IX(2) of the general terms
and
conditions of sale, the Koblenz High Court has jurisdiction in
respect of suits arising from the agreement of sale between the
plaintiff and the defendant. In the absence of such evidence, one is
driven to employ the contentious presumption that laws of foreign
states are the same as that of the Republic of South Africa.
Colman
J
said the following thereanent in
Bank
of Lisbon v Optichem Kunsmis (Edms) Bpk
1970(1) SA 447 (W) at 451A:
"The
presumption is, as I see it, no more than an arbitrary rule of
convenience. It is based, not upon a belief that the laws
of all
countries are the same, but upon a useful fiction which facilitates
the resolution of disputes and which works no injustice
because it is
always open to an interested party to displace the presumption by
proving that the relevant foreign law is, in truth,
different from
our own.
These
considerations are, to my mind, no less appropriate to a matter which
is governed in South Africa by a statute than to a matter
governed by
the common law."
Assuming
that the law of Germany is the same as South African law, do clauses
VIII and IX(2) of the plaintiff's general terms and
conditions of
sale constitute an effective submission to the international
competence or jurisdiction of the Koblenz High Court in
terms of
South African law?
It
is clear that in terms of South African law, a choice of proper law
does not amount to a submission to the jurisdiction of such
country's
courts (See:
Benidai
Trading Co Ltd v Gouws & Gouws (Pty) Ltd
1977(3) SA 1020 (T) at 1033-4;
Reiss
Engineering Co Ltd v Isamcor (Pty) Ltd
(
supra
)
at 1040F).
Ex
facie
its provisions, the submission to jurisdiction embodied in clause
IX(2) of the plaintiff's general terms and conditions of sale,
is
subject to the defendant, as purchaser, being a "competent
trader" (page 19 of the record); "a qualified merchant"
(page 57 of the record); and "a registered merchant" (page
83 of the record). Whilst according to the judgment of the
Koblenz
High Court such status on the part of the defendant appears to be a
pre-requisite in German law for an effective submission
to
jurisdiction, there is no similar requirement in South African law.
What accordingly has to be done is to ascertain what the
plaintiff
and the defendant intended thereby and to give effect thereto (See:
Cape
Provincial Administration v Clifford Harris (Pty) Ltd
1997(1) SA 439 (A) at 445G-H).
Although
the first step in construing a contract is to determine the ordinary
grammatical meaning of the words used by the parties,
it may
transpire from the context of the words used, their interrelation and
the nature of the transaction, as it appears from the
entire
contract, that they are used in an exceptional or technical sense and
not in their popular everyday meanings, in which event
that sense is
taken to be the grammatical and ordinary meaning (See:
Sassoon
Confirming & Acceptance Co (Pty) Ltd v Barclays National Bank Ltd
1974(1) SA 641 (A) at 646B-D;
Polysius
v Transvaal Alloys and Another
1983(2) SA 630 (W) at 643E-644H).
It
is clear from the context that the concept "a registered
merchant" has been used by the parties in the exceptional or
technical sense, appropriate to agreements of purchase and sale in
German law. In the absence of evidence of what that sense is,
it is
not possible with the aid of the canons of construction applicable to
South African law, to determine whether the jurisdictional
fact
required for the provisions of clause IX(2) to become operative,
namely that the defendant is a "registered merchant",
has
been shown to be present or not, failing which, it is not possible to
determine whether the Koblenz High Court enjoyed international
competence or jurisdiction on the basis of an express submission.
As
the plaintiff, in my view, has failed to show what the meaning of the
concept "a registered merchant" in clause IX(2)
of the
general terms and conditions of sale is, it cannot be determined
whether thát jurisdictional requirement, which is essential
for the
provisions of clause IX(2) to become operative, existed or not. In
the premises the plaintiff, in my view, has, on the papers
before
this Court, failed to discharge the
onus
of showing that the Koblenz High Court enjoyed international
competence or jurisdiction in terms of an express submission to
jurisdiction
by the defendant.
Has
the plaintiff succeeded in showing a tacit submission to
jurisdiction?
The
plaintiff, whilst conceding that the defendant contested the
jurisdiction of the Koblenz High Court, contends that it did not
do
so immediately but, as a first step in defending the action, sought
to be allowed to deposit a guarantee to avoid execution of
any
judgment that may be granted against it. The defendant disputes that
it tacitly submitted to the jurisdiction of the Koblenz
High Court
and avers that despite the fact that it raised a further substantive
defence to its jurisdiction, it at all times persisted
with its plea
that it did not have jurisdiction.
The
plaintiff's assertion that the defendant, as a first step in
defending the action sought to be allowed to deposit a guarantee,
is
not factually accurate. Its lawyers in their letter of 19 September
1999 advised the plaintiff's lawyers that they wished to
bring
applications for the claim to be dismissed; that the plaintiff be
ordered to pay the costs of the action; and that the defendant
be
allowed to deposit a guarantee as a precaution in the event of its
defence failing in whole or in part. There appears to be a
dispute
about the juncture when the defendant raised the lack of jurisdiction
of the Koblenz High Court. That dispute cannot be
resolved on the
papers as it has not been fully ventilated.
C
F Forsyth:
Private
International Law
,
3rd Ed at 269 states that there are no decided cases in which
submission by conduct has been accepted or rejected as a means of
conferring international competence on a foreign court which it would
otherwise not possess. Taking guidance from matters of internal
competence, where submission by conduct is not readily inferred, but
it is required that the defendant's conduct
"must
be of such a nature that the Court is able to say that it is
consistent only with acquiescence"
(per
Vieyra,
AJ
in
Du
Preez v Philip-King
1963(1) SA 801 (W) at 803C) he submits that courts should exercise
caution and not find that there has been a submission to jurisdiction
unless the parties have clearly accepted the foreign court's
jurisdiction e.g. where a defendant pleads to the merits without
contesting
a court's jurisdiction. The learned author, at page 370,
points out that in terms of the provisions of section 1E(1)(a) and
(2)
of the Protection of Businesses Act, No 99 of 1978, appearance
before a foreign court does not amount to submission if an appearance
to defend was entered for the purpose of,
inter
alia
,
contesting the jurisdiction of the court and expressed the following
view:
"If
a defendant wishes not to submit, then his course of action is clear:
on the rejection of his special plea to the jurisdiction,
he must
have nothing more to do with the foreign court. He cannot hunt with
the hounds and run with the hares, i.e. defend the action
in the
foreign court, intending to abide by the decision if he wins but
raise the court's lack of jurisdiction if he loses."
That
view may have merit in a procedural regime where a plea of lack of
jurisdiction is adjudicated in
limine
litis
and prior to the adjudication of any remaining issues. Judging from
the court's reasons for judgment, that does not appear to have
happened in the trial before the Koblenz High Court. Accordingly,
the fact that the defendant contested another issue before the
Court,
in my view, is not susceptible of being construed as a clear
acceptance of its jurisdiction. If, as
Conradie,
J
(as he then was) stated in
Supercat
Incorporated v Two Oceans Marine
CC 2001(4) SA 33 (C) at 32F, that the enquiry into whether there has
been submission by conduct concerns a defendant's state of mind
as
evidenced by his/her/its conduct, no facts have been put forward by
the plaintiff to refute the defendant's assertion that it
at all
times persisted with a plea that the Koblenz High Court did not have
jurisdiction.
In
view of the aforegoing, I incline to the view that the plaintiff has,
on the papers before this Court, failed to discharge the
onus
of showing that the defendant tacitly consented to the jurisdiction
of the Koblenz High Court.
In
the premises the application for provisional sentence is refused with
costs.
The
defendant is given leave to file a plea to the summons within 14 days
of the date of this judgment.
VAN
REENEN, J