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[1987] ZASCA 87
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Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd. (262/86) [1987] ZASCA 87; [1987] 2 All SA 447 (A) (17 September 1987)
262/86 /mb
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
VENETA MINERARIA SPA
Appellant
and
CAROLINA COLLIERIES (PTY) LTD
Respondent
(IN LIQUIDATION
)
CORAM
.: VILJOEN, SMALBERGER, VIVIER, JJA,
BOSHOFF et STEYN AJJA
HEARD
: 12 MARCH 1987
DELIVERED
: 17 SEPTEMBER 1987
JUDGMENT
VILJOEN
, JA
During June 1981 the appellant, an Italian company
which at the time carried on business in Milan, Italy,
instituted/
2. instituted an action in the Durban and Coast Local
Division against Carolina Collieries (Proprietary)
Limited (hereinafter
referred to as "Carolina")
claiming from Carolina, which had its head
office
in Johannesburg, Transvaal, and operated a colliery
in Carolina, Transvaal, damages for breach of con-
tract, interest and
costs. Carolina resisted the
claim and instituted a counterclaim. The
matter
was heard during March 1985 and in pursuance of a
judgment handed down on 7 May 1985 (which is fully
reported in 1985(3) SA
633 (D), hereinafter referred
to as "the report",) the learned trial Judge,
Kum-
leben J, dismissed the claims in convention and
reconvention with costs. Leave to appeal having
been/
3. been granted by the Court a
quo
to appeal to this
Court against that part of the order whereby the
learned trial Judge dismissed the appellant's claim
with costs, an appeal
was duly noted and appeal pro-
ceedings were instituted. On 25 February 1986
a
final winding-up order was made against Carolina.
The liquidatrix who had
received proper notice that
the appellant desired to prosecute the appeal
indi-
cated that she did not intend to become involved in
the appeal
proceedings or to intervene in any way.
Before this Court there was
consequently no appearance
for Carolina. An application at the commencement of
the argument on appeal
that the name of the respon-
dent should be altered to "Carolina Collieries
(Pro-
prietary)/
4. prietary) Limited (in liquidation)" was granted.
As a perusal of the report reveals,the learned trial Judge, even though he
upheld a special plea that, despite a written consent to
the jurisdic-tion, the
trial Court did not have jurisdiction to try the matter, nevertheless proceeded
to state his views on the
breach of contract issue and decided that against the
appellant as well.
The only ground advanced in this Court in
support of
a contention that the Court a
quo
had
jurisdiction was the written
consent to the jurisdic-
tion signed on behalf of Carolina. The facts
which
are relevant for the purposes of the adjudication of
this issue are,
as set out in the report at 637 B - D,
that the parties were neither
domiciled nor resident
within/
5. within the area of jurisdiction of the Court a
quo
,
nor was the contract concluded or to be performed
within such area. Both
parties were therefore
peregrini
of the Court a
quo
. They
differed in
status, however, in the sense that the defendant
was, even
though a
peregrinus
of the Court, an
incola
of the Republic of
South Africa, whereas
the appellant was not - it was an
out-and-out
peregrinus
.
Jurisdiction (gerigtsdwang) is defined by
Vromans,
following Berlichius, as "a lawful power
to decide something in a case or to
adjudicate upon
a case, and to give effect to the judgment, that is,
to
have the power to compel the person condemned to
make/
6.
make satisfaction." See
Wright v Stuttaford & Co
1929
EDL
10
42. In so far as South African courts are con-
cerned their jurisdiction is the right or authority
of entertaining
actions or other legal proceedings
which is vested in them by the state. When
the
Supreme Court of South Africa was created on the es-
tablishment of
the Union of South Africa by the
South Africa Act, 9 Edw VII ch 9 section 95,
the
Supreme Courts of the former colonies became pro-
vincial or local
divisions of the Supreme Court of
South Africa. These divisions retained the
juris-
diction which the courts to which they succeeded
enjoyed.
The statute which currently governs
the
system/
7. system of the Supreme Court in
the RSA, its several
divisions and their respective jurisdictions and
powers is the Supreme
Court Act 59 of 1959 (herein-
after referred to as "the Act"). According to
it
the original jurisdiction of each division is terri-
torial - it is to
be exercised within a particular
geographical area specified in the First
Schedule
to the Act. Section 19(1) of the Act provides
broadly that a
provincial or local division shall
have jurisdiction over all persons
residing or being
in and in relation to all causes arising within its
area
of jurisdiction and all other matters of which
it may according to law take
cognizance.
In view of the indefinite wording of
s
19(1)/ ...
8.
s 19(1) of the Act and its predecessors, no
doubt deliberately so
couched because the in-tention of the legislature obviously was to inter-fere
with the common law as little
as possible, re-course must be had to the
principles of the common law to ascertain what competency each of the supreme
-courts in
the RSA possesses to effectively adjudicate and pronounce upon a
matter brought before and heard by it. In the course of time it
seems that, as
our law on jurisdiction developed, it was also influenced to a minor extent by
principles of the private inter-national
law applicable in other legal
systems.
For the purposes of this appeal it will be convenient to distinguish between
the so-called grounds
of/
9. of jurisdiction by virtue of which a court would
normally
ipso jure
have jurisdiction and juris-
diction which is
conferred on a court. In the
former category the grounds of jurisdiction - the
rationes
jurisdictionis
- may be classified. In
Einwald v The German West
African Company
5 SC 86
De Villiers CJ said at 91 that the grounds
upon
which jurisdiction can be exercised in respect of
any contract over a
defendant without his consent,
express or implied, are threefold:
"viz by virtue of the defendant's domicile being here, by virtue of the contract
either having been entered into here or having to
be performed here, and by
virtue of the subject-matter in an action in
rem
being situated in this
Colony."
In the second category of cases
whereby
jurisdiction/
10. jurisdiction may be conferred upon a court attach-
ment of the goods or arrest of the person ad
fundandam
jurisdictionem
as well as consent to jurisdiction
(known by the term
prorogatio
in Roman Dutch law)
may be
classified. In this respect the learned trial
Judge refers , at 639 of the report, to Vromans
who observes in his
treatise
De Foro Competenti
1.1.7 note 12:
"Uyt het Gemeine Regt is een Regter competent, of door sig selfs, ofte door
toeval"
and points out that Vromans proceeds to classify,
among others, both
consent and attachment as in-
stances of jurisdiction "door toeval". Among
the
others Vroman includes "door saaks t' samehang, in saken van eene natuur
sijnde en die gevolglyk
van/
11.
van den anderen niet konnen gescheiden werden." Cf
Roberts Construction Co Ltd v Willcox Bros(Pty)'Ltd
1962(4) SA 326(A).
It seems to me - and I express this view
en
passant
and of course
obiter
- that there is, in
so far as South
African law is concerned, another
type of case,arising from the provisions of
s 9
of the Act, which may be added to this category.
This section reads as
follows:
"(1) If any civil cause, proceeding or matter has been instituted in any
pro-vincial or local division, and it is made to appear to
the court concerned
that the same may be more conveniently or more fitly heard or determined in
another division, that court may,
upon appli-cation by any party thereto and
after hearing all other parties thereto, order such cause, proceeding or matter
to be
removed/
12. removed to that other division.
(2) An order for removal under sub-section (1) shall be transmitted to the
registrar of the division to which the removal is ordered,
and upon the receipt
of such order that division may hear and determine the cause, proceeding or
matter in guestion and shall in
that event apply the practice governing the
division in which it was instituted and the law according to which that division
would
but for the removal have heard and determined such cause, proceeding or
matter."
In
Fraser v Lee
1904 TS 377
an
application
by the defendant, the plaintiff consenting, under
s 29 of Proclamation 14
of 1902 (the forerunner in
the Transvaal of s 9 of the Act), for the venue
to
be changed from the Supreme Court of the Transvaal
to the Witwatersrand
High Court, was granted. The
latter/
13.
latter court also had jurisdiction. At 378 Solomon
J said:
"It may be that if the Johannesburg court
had no jurisdiction whatsoever, either
over the cause or over the defendant, by
reason of the fact that he resided out
of the jurisdiction of the court, some
difficulty might have arisen. I express
no opinion whatsoever about that "
In a long line of later cases this point,
which was
left open in the
Fraser v Lee
case was
decided, the courts holding
that it was not necessa-
ry for the transferee court to have
jurisdiction;
in other words,the practice seems now to be firmly
established that
jurisdiction can in this manner
be conferred upon a court. See the cases
collected
in Nathan Barnett & Brink
Uniform Rules of Court
3rd edition at 562. It is submitted by the authors
that/
14. that, although the court to which it is sought to
remove the proceedings need not originally have had
jurisdiction, the fact that it has no jurisdiction
will be a matter to be
taken into account in deciding
whether the application for removal should be
granted.
It is not necessary, for the purposes of this case,
to express any view on
the correctness of this sub-
mission.
But to revert to the present case - the
crisp point
to be decided is whether a consent to the
jurisdiction can stand alone as conferring jurisdic-
tion on a court or
whether it serves merely to supply,
complementarily to some
causa
jurisdictionis
, an
element to the jurisdiction which would, but for
such/
15. such consent, be defective. The latter was the view
of the learned trial Judge.
The question arises of what relevance,
apart from
the fact that they are both considered
to be instances of jurisdiction "door
toeval", arrest
or attachmeht ad
fundandam iurisdictionem
is to
the
present problem concerning prorogation. They have
this in common, as
pointed out in the report at
639 H - J, that neither can be regarded as one
of
the ordinary
rationes iurisdictionis
which are
traditionally
based on the doctrine of effective-
ness. The anology is, in my view,
important because
it has repeatedly been stressed by the authorities
and
in decisions of the courts, that effectiveness
is the/
16. is the basis of jurisdiction. This doctrine of
effectiveness was thorougly probed by Potgieter JA
in the matter of
Thermo Radiant Oven Sales (Pty) Ltd v
Nelspruit
Bakeries (Pty) Ltd
1969(2) SA 295 (A) 305C - 310t
and I need not add
anything in this regard.
On behalf of the appellant it was submitted
that,
until the decision in
Towers v Paisley
1963(1)
SA 92 (E) it appears to
have been generally accepted
that consent was sufficient to confer
jurisdiction.
We were referred to Pollak
South African Law
of
Jurisdiction
92 and an article
The Civil
Jurisdiction
of the Supreme Court of South Africa
by the
same
author in Vol XLVI
(1929) SALJ 237
at 241 and also
to the decision in
Sonia Proprietary Limited v Wheeler
1958(1)/
17. 1958(1) SA 555(A) 563C - F.
In
Towers v Paisley supra
Jennett JP held
(at 95A) that a peregrine plaintiff had always been
able to sue a
peregrine defendant only if one of
the three grounds of jurisdiction viz
ratione rei
sitae
,
ratione rei gestae
or
ratione
contractus
existed and that consequently the applicant, being
a
peregrinus
as far as the court was concerned,
could not bring an
action against the respondent
on the ground only that the latter had
consented to
the court having jurisdiction (95E). In arriving
at this
conclusion the learned Judge President de-
rived support from the law
relating to arrest and
attachment/
18.
attachment ad
fundandam jurisdictionem
. The
learned
Judge President said at 94 F:
"In the case of action against a
peregrinus
, the Courts of the four
Provinces before Union allowed a plaintiff
incola
to sue such
peregrinus
provided there was a ground'of jurisdiction
ratione rei
sitae
,
ratione rei gestae
or
ratione contractus
with an arrest
of the defendant or attachment of some of his property."
It was pointed out on behalf of the appellant that the
dictum
did not
express the law correctly because in the case of an
incola
in the
Transvaal, at any rate, no ground of jurisdiction other than arrest was required
and we were referred to
Pollak/
19. Pollak op
cit
58 - 9. It appears, however, that
the learned Judge President did not quite intend
to say what is reported
at 94F because he proceeds
to say in the second sentence of the very
next
paragraph (94G):
"In addition, however, a plaintiff
incola
could sue a defendant
peregrinus even if none of the three grounds referred to were present but there
had been an arrest of the defendant
or attachment of some of his property."
It is true, however, that in the case
of a plaintiff
incola
in the Transvaal no ground of
jurisdiction other than arrest of the defendant
peregrinus
or
attachment of his property was required.
In fact, the practice which obtained in the Transvaal
(see/
20. (see
Lecomte v W & B Syndicate of Madagascar
1905
TH 295;
1905 TS 696)
was subsequently approved and
followed in the Cape
(see
Halse v Warwick
1931 CPD 233).
In the case of a defendant
peregrinus
who is, however,resident in another province of the RSA
different considerations apply. As Jennett JP points out in
Towers v Paisley
supra
at 94 in
fine
, by s 5 of Act 27 of 1912 arrest of the person or
attachment of his property was prohibited in such a case. As a result the right
of an
incola
to found juris-diction solely on the arrest of such a
peregrinus
disappeared.
He/
21. He correctly interpreted s 5 of Act 27 of
1912
as
prohibiting
arrest of the person or attach-
ment of his property in
respect of a defendant
peregrinus
who was resident in another
province.
The relevant portion of the section provided:
"Whenever a defendant resides in the Union no attach-
ment of his person
or property to found jurisdiction
shall be ordered." In this respect Pollak op
cit
68 expresses the
view that Maasdorp CJ in
Smit v
Cramer
1913 OPD 123
and
Kotzé J in
Brooks v Maquassi
Halls Ltd
1914 CPD 371
wrongly interpreted the section
not as prohibiting but merely as doing away
with the
necessity of an arrest of the person or attachment
of his property to found jurisdiction. This difficulty
was compounded by s 7 of Act 27 of 1912 which provided
that/
22.
that:
"Nothing in the preceding sections of this Act shall be construed as con-ferring
upon any court jurisdiction to hear and determine
any matter which it would not
have had authority to hear and determine if the defendant had been served with a
civil summons within
the jurisdiction of the court wherein the proceedings are
being taken."
About this section Pollak correctly remarks
(
op cit
67 n 1) that it is impossible to give effect
to the literal
meaning thereof without restricting
the jurisdiction of the divisions of the
Supreme
Court in actions against persons who reside in the
Union of South
Africa to the case in which the
defendant is an
incola
of the area to
which the
court belongs.
A proper/
23. A proper reading of s 5 might'well,
as Pollak at
68 of op
cit
points out, have led to
the construction that with the
prohibition of arrest
and attachment to found jurisdiction the
divisions
of the Supreme Court had indirectly lost their juris-
diction to
entertain an action against a peregrine
defendant who resided in the Union
even though the
cause of action arose or the contract in respect of
which
the plaintiff's claim was brought was entered
into within the area to which
the court belonged.
S 5 of Act 27 of 1912 has now been re-enacted in
s
28(1) of the Act in the following terms:
"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."
Section/
24. Section 7 has, however, not been re-enacted.
No
doubt, to meet the objection to the possible, and
in Pollak's view the correct, construction of s 5 and
the difficulty in
construing s 7 of Act 27 of 1912,
s 19(3) of the Act now provides:
"The provisions of this section shall not be construed as in any way limiting
the powers of a provincial or local division as existing
at the commence-ment of
this Act, or as depriving any such divísion of any jurisdiction which
could lawfully be exercised
by it at such
commencement."
In my view this provision now sanctions
the
construction placed upon s 5 of Act 27 of 1912
by Maasdorp and Kotzé J
in
Smit v Cramer supra
and
Brooks v Maquassi Halls Ltd supra
respectively.
The prohibition is still there in s 28(1) of the
Act/
25. Act but s 19(3) now provides in effect that the
prohibition does not in any way deprive a court of
any jurisdiction which
could lawfully have been
exercised by it prior to the provision. Such
jurisdiction could only have been exercised by
virtue of one of the
grounds of jurisdiction. In
Brooks v Maquassi Halls Ltd supra
Kotzé J said at
376 - 377:
"According to our common law and practice under it, the Court will exercise
juris-diction upon any one of the following grounds,
viz:
(1)
Ratione domicilii
; (2)
ratione rei sitae
; (3)
ratione
contractus
; that is, where the contract has either been en-tered into or has
to be executed within the jurisdiction. This is a correct statement
of the law
as summarised by Burge in his
Commentaries
, vol 3, chap 24, and has
generally been adopted by our courts. But,in order to exercise
juris-
diction/
26.
diction under either the second or third ground which I have mentioned, the
prac-tice has always been to grant an arrest either of
the property or person of
the debtor ad
fundandam iurisdictionem
, and in this way the debtor or his
property, to use the expressive language of the Dutch lawyers, becomes bankvast.
There is, therefore,
always something against which, in the event of the
judgment being in favóur of the plaintiff, the decree of the Court can
operate, and not amount to a mere nullity, for the Court, like nature, should do
nothing in vain. There is yet a fourth means of
exercising juris-diction,
clearly recognised by the Roman-Dutch law, and which has been adopted in our
South African practice, although
it seems that the cases in the courts of this
Province are not quite uniform on the point, viz, where, upon the applica-tion
of an
incola
, the court will grant an attachment of a foreigner or of his
property found within the territorial limits in order to establish jurisdiction.
It is, however, not necessary to pursue this question any further in the present
application.
Such/
27.
Such was the law at the time when Act 27 of 1912 was passed, by which some
important changes have been introduced in the existing
practice. The Act (secs
3, 5 and 7) has not increased the jurisdiction of the Court over a defendant in
regard to the subject-matter
of the suit, it has merely simplified the
procedure. It has done away with the necessity of an attachment of person or
property to
found jurisdiction, and of edictal citation where the summons can be
duly served in some other manner. It has thus dispensed with
the inconvenience
and cost of such proceedings. As I understand the three sections read together,
it comes to this: Sec 5 provides
that a creditor or plaintiff, resident in one
Province of the Union, can in the court of his Province sue the defendant
resident
in another Pro-vince, without the process of attachment and without
edictal citation, if the defen-dant can be duly served with a
summons in some
other way, e g, by personal service, provided (as sec 3 requires) that the court
out of which the summons issues
has juris-diction in respect of the matter or
pro-ceedings in which the summons is taken out; while sec 7, as the marginal
note correctly
indicates, simply provides that no greater
jurisdiction/...
28.
jurisdiction is conferred upon the court out of which the summons issues than
that which it already possesses in regard to the subject-matter
or
proceedings."
Thus, section 28 read with s 19(3) of
the Act
facilitates the procedure as far as
effectiveness is concerned, but
effectiveness
does not
per se
confer jurisdiction on a court.
The
fact that in this case the respondent was not
a
peregrinus
in the full
sense of the word, as
counsel put it, and the reliance on
Roberts
Con
-
struction Company Limited v Willcox Brothers
(Proprietary) Limited supra
, does not, in
my view, assist the
appellant. See also
Estate
Aqents Board v Lek
1979(3) SA 1048
(A) 1061B - 1063E.
To/
29.
To deal more directly and specifically
with
prorogation, I revert to the other references
relied upon by counsel for the appellant. I do not read the references to Pollak
op
cit
92 and the author's article in
1929 SALJ 237
241 or to
Sonia's
case
supra
as being authority for the proposition that
consent to the jurisdiction by a peregrine defendant
per se
confers
jurisdiction on the court concerned. In his book and in the article referred to
Pollak was dealing with jurisdiction over
the person only and not juris-diction
of the court generally. In his book on
Jurisdiction
Pollak s v "When the
Defendant is a Corporation" mentions at 91/2 seven cases in which, when the
defendant in an action sounding
in money
is a/
30. is a natural person, South African courts exercise
jurisdiction. Among these he includes a defen-
dant who submits to the jurisdiction of the court.
The learned author then
proceeds to deal with the
situation in which the defendant in an action is
a
corporation. Pollak does not however say that sub-
mission alone confers
jurisdiction on the court.
At 84/5 he deals with submission by a defendant
to
the jurisdiction of the court and refers to Voet
2.1.35 and to a passage in
Ueckermann v Feinstein
1909 T5 913 920. This passage appears in a
dictum
of Innes CJ at 919 - 920 which I quote in full:
"There remains the much more difficult question, whether acquiescence in a
judgment in
personam
, pronounced by a court competent as to the cause,
against
a defendant/
31.
a defendant over whose person the court had at the time no jurisdiction,
operates to prevent such defendant from thereafter challenging
the validity of
the judgment. The inquiry may be put in a different shape - could such a
defendant, under such cir-cumstances, have
conferred jurisdiction originally
upon the court by consent? Be-. cause, if he could consent originally, it
follows that he could
acquiesce subsequently. Apart from statute, the common law
of Holland undoubtedly recognised the doctrine of the prorogation of
jurisdiction
- that is, that jurisdiction might be conferred or extended by
consent of parties so as to enable the court to deal with a dispute
which, apart
from such consent, it would have had no jurisdiction to entertain. And that
proro-gation of jurisdiction might take
place in regard to inferior as well as
superior courts is clear from what Voet says at 2, 1, 15. Some of the
authorities favoured
a very wide application being given to this doctrine of
prorogation. But I think it must be recognised as settled law in South
Africá
that there can be no prorogation in regard to cases where the
court has no authority at all to adjudicate upon the
subject-matter/...
32.
subject-matter of the dispute; because in such cases, the matter at issue being
by law outside the cognisance of the court, the consent
of parties cannot confer
a coercive jurisdiction upon the court, which the law expressly denies to
it."
In XLVI
(1929) SALJ 241
Pollak expresses the view
that it
is only common sense that a defendant who
expressly consents to the plaintiff
bringing his
action in a particular division of the Supreme Court,
should
not be allowed thereafter to object to the
jurisdiction of such division. Again, nowhere in
this article does Pollak
state that consent alone
confers jurisdiction upon a court.
The
dictum
in
Sonia's
case
supra
at 563
C
which is relied on reads as follows:
"Save for the principle of submission, that
is,/
33.
is, a voluntary submission by a defendant to the Court exercising jurisdiction
over him which it does not possess in law, the basic
principle of jurisdiction
is effec-tiveness. (
Schlimmer v Executrix in Estate of Rising
,
1904 TH
108
at p 111). This point is fully discussed by Mr Pollak in his book on
Jurisdiction
from p 15 onwards. He quotes several
dicta
, one from
an American case -
McDonald v Mabee
243 U S 90
(1917) where Holmes, J
said: 'The foundation of jurisdiction is physical
power.'"
I do not read this passage as indicating
that
prorogation or submission by itself confers
jurisdiction on a court. Regard being had to the
context in which the
comment was made by Price AJA
it is evident that the court did have
jurisdiction
over the cause. As far as the person of the defen-
dant was
concerned Price AJA distinguished between
a/
34. a defendant who submits to the jurisdiction and
one who does not do so. In my view, the effect
of the judgment is that, in
the latter case, the
added requirement of effectiveness has to be
satis-
fied. That would be attained by the arrest of the
person or
attachment of his property in the area
of jurisdiction of the court. Were he
an
incola
of the Republic though a
peregrinus
of the
court,
such arrest or attachment would, in view of the
removal by
legislation of certain procedural impe-
diments, no longer be necessary. (563
E - H) The
words "submission by the Defendant to the Court
exercising
jurisdiction over him which it does not
possess in law" in the passage quoted
above must be
read/
35. read in the restricted sense in which it was in-
tended to apply. The emphasis must be placed on
the word
him.
That
this was the connotation in
which the remark by Price AJA should be read
ac-
quires added force when regard is had to a passage
by Pollak op
cit
19 to which Price AJA refers and the
footnote thereto. The passage reads as follows:
"For reasons of policy it is held that a person who voluntarily submits himself
to the judgment of the court, to whose jurisdiction
he would not otherwise be
subject, confers, by so doing, juris-diction on such court and that he cannot
afterwards be heard to say
that the court had no jurisdiction over
him."
In the footnote to this passage reference is made
to
Ueckerman v Feinstein supra
, a passage from which
I quoted above and to
Otto v Schurïnk and Another
1911 TPD
367
in/
36.
in which case it was clear that the magistrate's
court had jurisdiction as to the cause. At 374
Wessels J, after having referred to Vinnius, said:
"In other words, if a Magistrate has jurisdiction over a cause, and a party
defendant acquiesces in the judgment of the Magistrate,
it is too late for him
to say that all the necessary for-malities have not been complied with."
Mr Shaw also sought to draw a distinc-
tion between the law relating to
arrest and attach-
ment ad
fundandam iurisdictionem
and
prorogation.
As it seems probable, he argues,that the right of
arrest was a privilege extended to
incolae
(see
Wessels History of
the Roman Dutch Law 690-1) the
rule of the South African law refusing the right of
arrest/
37.
arrest to a peregrinus, except where there is a
ground of
jurisdiction other than arrest, is gene-rally in accordance with the common law.
These considerations, he submits, clearly
however do not apply with regard to a
consent to jurisdiction where there is no element of enforcing appearance.
No
direct authority, either in our case law or in the Roman-Dutch law, has been
quoted to this Court in support of this proposition.
On the contrary, the
dictum
of Innes CJ in
Ueckermann v Feinstein supra
to the effect
that there can be no prorogation in regard to cases where the court has no
authority at all to adjudicate upon the
subject-matter of the dispute, has never
been departed from
in this/
38. in this country. The phrase "The consent of the
parties cannot confer a coercive jurisdiction upon
the court" in the
dictum
referred to is derived
from
Farquharson v Morgan
1894 1 QB 552
in which
case Lord Davey
said:
"Parties cannot by agreement confer upon any court or judge a coercive
jurisdic-tion which the court or judge does not by law
possess".
These words were quoted by Mason J in
Ellis v
Morgan; Ellis v Dessai
1909 TS 576
582 and, as appears above, referred to by
Innes CJ in the
Ueckermann v Feinstein
judgment
supra
.
The
crucial question that presents itself is: what jurisdiction does a Supreme Court
in S A law possess?
A court/
39.
A court can only be said to have jurisdiction in a
matter if it has the power not only of taking cog-
nisance of the suit but also of giving effect to
its judgment. (See
Steytler NO v Fitzgerald
1911
AD 295
346/7). By
virtue of the provisions of s 28(1)
of the Act (and, of course, its
predecessor, s 5 of
Act 27 of 1912, which was worded very similarly)
the
procedural impediment in so far as effectiveness in
respect of any
person resident in the Republic is
concerned has been eliminated but it still
has to be
established in every case that, in terms of s 19(1) of
the Act,
a court has the power of taking cognisance of
the suit. In the matter of
The Owners Master and Crew of the S S"Humber"v
The Owners and Master of the S S
"
Answald
"1912 AD 546 554 Innes ACJ referred to the con-
clusion/
40.
clusion to which the court had come in
Beckett &
Co
v
Kroomer
as to the interpretation of the words "causes
arising" in s
16 of the Transvaal Adminstration of
Justice Proclamation (the very words
which appear in
s 19(1) of the Act) as being:
"... that the expression 'causes arising' formed the dominating feature of the
section; and that when a Court was given unlimited
jurisdiction in all 'causes
arising' within a certain area, that amounted to a jurisdiction to entertain all
suits for which, by
the common law of the Colony, the highest Court of first
instance would in that area be the proper forum. The presence of a contemplated
defendant would of course be an important element in the inquiry; but the
question in each instance would be whether the particular'cause'was
one of which
the Court concerned could, according to the principles of law, rightly take
cogni-
zance The claim being based upon
tort, and the Provincial Division being
neither/
41.
neither the
forum loci delicti
nor the
forum rei
, it is clear
that, apart from the machinery of arrest, that inquiry would have to be answered
in the negative."
This
dictum
again emphasises the
principle that in addition to the machinery of arrest (which, in the case of a
local
peregrinus
, is dispensed with by law) something more is required
before a court can take cognisance of a matter in its area of juris-diction.
By
prorogation a defendant subjects his person to the jurisdiction of the court,
but that is not enough. One or more of the traditional
grounds of jurisdiction
must also be present.
For these reasons I have come to the conclusion that
the consent of the defendant did not
confer/
42.
confer any jurisdiction on the Court a
quo
and that
the latter had
no authority to take cognisance of the matter. The appeal cannot, therefore,
succeed on the jurisdiction point. It
is, consequently, not necessary to
consider the breach of contract issue.
Mr Shaw has not addressed us on the
ques-tion of costs. Some costs might have been incurred both before and after
the liquidation
of Carolina in respect of, for instance, the receipt and
con-sideration of documents served upon it or the execu-trix. Under these
circumstances it is only just, in my view, to order the appellant to pay the
costs of appeal.
In the/
43.
In the result the appeal is dismissed,
with costs.
JUDGE OF APPEAL
SMALBERGER JA )
VIVIER JA )
- Concur
BOSHOFF AJA ) STEYN AJA )