About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1990
>>
[1990] ZASCA 39
|
|
Longman Distillers Ltd. v Drop Inn Group of Liquor Supermarkets (Pty) Ltd. (442/88) [1990] ZASCA 39; 1990 (2) SA 906 (AD); (30 March 1990)
Case no. 442/88
E du P
IN THE SUPREME COURT OF SOUTH
AFRICA
(APPELLATE DIVISION)
In the matter between:
LONGMAN DISTILLERS
LIMITED
Appellant
and
THE DROP INN GROUP OF
LIQUOR
SUPERMARKETS (PTY) LTD
Resppndent
Coram:
CORBETT CJ, E M GROSSKOPF, KUMLEBEN JJA, NICHOLAS
et
GOLDSTONE AJJA
Heard:
Delivered:
22 March 1990
30 March 1990
2
JUDGMENT NICHOLAS AJA:
The appellant is Longman Distillers Ltd
("Longman"), a firm of distillers which carries on its business in Leith,
Edinburgh, Scotland.
The respondent is The Drop Inn Group of Liquor Supermarkets
(Pty) Ltd ("Drop Inn"), which is engaged in the marketing of liquor.
Longman and
Drop Inn have had business dealings with each other, in the course of which,
according to Drop Inn, Longman became indebted
to it in respect of damages in
the amount of E40 286,00 (R127 271,89). On 19 May 1988
FRIEDMAN J
,
sitting in the Cape Provincial Division ("the CPD"), granted an order against
Longman on the application of Drop Inn:
"(a) Authorising the deputy sheriff of this
Court to
attach, in order to found and/or confirm jurisdiction, all respondent's right,
title and interest in and to the order for
costs awarded respondent in case
644/1987 against applicant.
(b) Granting applicant leave to sue
respondent by edictal citation for:
1. Payment of the sum of R127,271,89.
3
2.
Interest thereon
a
tempore morae
.
3.
Alternative
relief.
4.
Costs of
suit.
The judgment is reported
sub nom
.
Drop Inn Group of Liquor Supermarkets (Pty) Ltd v Lonqman Distillers Ltd
1988(4) SA
35(C). It will be referred to as "the reported judgment".
With
the leave of the court
a quo
, Longman now appeals against the
order.
It was not disputed by Longman that Drop Inn established the essential
requirements for an order of attachment
ad fundandam aut confirmandam
iurisdictionem
. Drop Inn is an
incola
of the area of jurisdiction of
the CPD; Longman is a
peregrinus
. Drop Inn has established
prima
facie
that it has a valid claim for R127 271,89 against Longman. Longman
owns property within the area of jurisdiction of the CPD, namely,
rights under
an order for costs granted against Drop Inn by the CPD. It is conceded on behaif
of Longman (and it was so held in the
reported
4
judgment at 36 F-H), that a right arising from an award of costs is capable
of attachment to found and confirm jurisdiction (
Araxos (East London) (Pty)
Ltd v Contara Lines Ltd and Others
1979(1) SA 1027 (ECD); and that "an
existing claim by the prospective peregrine defendant against the prospective
incola
plaintiff is,.ordinarily speaking, attachable in order to found
jurisdiction in the proposed action."
(Thermo Radiant Oven Sales (Pty) Ltd. v
Nelspruit
Bakeries (Pty Ltd)
1969(2) SA 295(A) at 300 F-G.)
In
form the order was a simple order of attachment, but if it had been refused the
effect would have been that the CPD declined to
exercise jurisdiction in the
proposed action. The rule of Roman Law was
actor sequitur forum rei
, and
the arrest of the property or person of a
peregrinus
to found
jurisdiction was only introduced into the Roman-Dutch law under the influence of
Germanic custom. This was actuated by the
desire of the Dutch to assist
incolae
to litigate at home, and to avoid the expense to which
5
citizens would be put if they had to pursue a
peregrinus
to the court
of his domicile. The procedure was conceived primarily for the benefit of the
incola
. (See
Thermo Radiant Oven Sales (supra)
at 301 A
per
OGILVIE THOMPSON JA; and at 305 C-G
per
POTGIETER JA). It is against this
background that the submissions made by appellant fall to be considered. They
are three in number.
The first submission was as bold as it is novel: that
the law recognizes that orders for costs are absolutely immune from attachment.
The argument as I understood it was this. Certain assets are immune from
attachment (see Van Zyl,
The Theory of Judical Practice of South Africa
,
3rd ed. pp 262-263), including students' books, which are necessary for the
particular studies in which they are engaged, and necessary
wearing apparel and
food procured for sustenance. The immunity is founded on public policy, and a
similar immunity should be accorded
to an order for costs, which is more than a
mere money judgment, since it provides the key
6
for access for the courts. The logic of the argument is faulty. The fact that
a costs order may be attached does not have the effect
of denying anyone access
to the courts. Not is it calculated to discourage legal proceedings: some
countries (the United States for
example) do not in all cases have awards for
costs such as we know them. Moreover, s. 39 of the
Supreme Court Act
, 59
of 1959, sets out a list of property not liable to be seized in execution of any
process, and there are, apart from the section,
other classes of property which
are exempt from attachment. (See Nathan, Barnett & Brink
Uniform Rules of
Court
, 3rd ed., p. 640). A costs order is not one of those mentioned, and I
do not know of any power in the courts to create new items
of exemption.
There is therefore no merit in the first submission.
The second submission is a narrower one, and is based on the facts which gave
rise to the application. The
7
history of the matter is fully summarized in the reported judgment at 35 F-36
F and it is unneccessary for present purposes to repeat
it. The essential facts
are that in January 1987 Drop Inn was granted (i) a rule
nisi
calling
upon Longman to show cause why an amount of R133 721,88, which was standing to
the credit of Longman in a suspense account
at the Standard Bank, should not be
attached ad
confirmandam jurisdictionem
in an action which Drop Inn
proposed to bring against Longman; and (ii) an order interdicting the Standard
Bank from paying out to
any person the said sum or any part thereof pending the
return day of the rule
nisi.
On the return day BURGER J discharged the
rule
nisi
and set aside the interdict, and ordered Drop Inn to pay the
Bank's costs and Longman's costs. It is the latter costs order with
which this
appeal is concerned.
Immediately after BURGER J made the order, Drop Inn, which had armed itself
in anticipation with a previously prepared notice of motion
and founding
affidavit, applied in
8
the motion court for an order attaching
ad fundandam
all Longman's
rights in the order for costs. That application came to grief for lack of notice
to Longman, but it was later renewed
and came before FRIEDMAN J, who granted the
order now under appeal.
Longman disavows any suggestion that the application
was made
mala fide
or that it constituted an abuse of the process of the
court. The submission is that it is contrary to public policy to permit the
attachment of the award of costs in these circumstances: the consequence of
allowing the attachment "would be, in effect, to prevent
a
peregrinus
who
does not wish to submit to the jurisdiction of the court from opposing the grant
of an attachment order unless he waives his
right to recover costs occasioned by
such opposition." I do not agree. The prospect of the attachment of an order for
costs would
not itself deter a
peregrinus
from opposing legal proceedings
for attachment ad
fundandam
. Such a prospect should, no doubt, make
him
9
hesitate, ±f he is sufficient prescient, to ask costs of opposition, the
grant of which would result in his becoming possessed
of an asset within the
jurisdiction, thus rendering him vulnerable to proceedings for an attachment
ad fundandam.
But it should do no more than that.
Public policy is an
imprecise and elusive concept. It is said to reflect the mores and fundamental
assumptions of the community (Cheshire
Fifoot and Furmston's
Law of
Contract
11th ed., p. 345.) Wessels,
Law of Contract in
South
Africa
, Vol 1 s. 488, says: "An act which is contrary
to the interests of
the community is said to be an act
contrary to public policy." Public policy
is the general
sense of justice of the community, the
boni mores
, manifested
in public opinion. (
Lorimar Productions Inc. & Others v
Sterling Clothing Manufacturers (Pty) Ltd
1981(3) SA 1129(T)
at
1152-1153
per
VAN DIJKHORST J See also
Schultz v Butt
1986(3) SA 667(A) at 679 C). When a court is asked to hold
that something is against public policy, it does well to
10
remind itself of the much-quoted passage in the judgment of
BURROUGH J in
Richardson v Mellish
[1824] EngR 715
;
(1824), 2 Bing 229
at 252
[1824] EngR 715
; ;
130 ER 294
at 303:
"I, for one, protest .... against arguing too strongly upon public policy; - it
is a very unruly horse, and when once you get astride
it you never know where it
will carry you. It may lead you from the sound law. It is never argued at all
but when other points fail."
I cannot see how public policy can be at
all
involved in a question whether a particular
incorporeal right
should be attached
ad fundandam
, or whether a
particular
incola
should be permitted to sue a particular
peregrinus
in
the CPD. Only the interests of Longman and Drop Inn
are
involved, not the interests or general sense of justice of
the
community. The question does not raise any important
moral issue, or any
principle affecting the fundamental
assumptions of the community. It seems to
me that
au fond
Longman's objection is that the attachment was
"unfair"; and
that its representatives have attempted to elevate this
into
11
a matter of public policy.
Basically, the argument that it is unfair is
that, when a man has beaten off an áttack, the order which he has
obtained indemnifying
him for the costs which he incurred in the process, should
not be used against him in a renewed attack. (See the reported judgment
at 37
E-G). It is an argument with which one can have some sympathy, but it cannot in
my opinion be a justificátion for refusing
an order of attachment.
It
was pointed out by JOUBERT JA in
Bank of Lisbon and South Africa Ltd v De
Ornelas and Another
1988(3) SA 580(A) at 606 A-B that in administering the
law, the Dutch courts paid due regard to considerations of equity, but only
where the equity was not inconsistent with the principles of law, and that is
also the position adopted by South African courts.
In our law, once an
incola
applicant (plaintiff) establishes that
prima facie
he has a good cause of action
12
against the peregrine respondent (defendant) the court must, if other
requirements are satisfied, grant an order for the attachment
ad
fundandam
of thé property of the peregrine respondent (defendant). It
has no discretion (Pollak,
The South African Law of Jurisdiction
, p. 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 tobe granted.
In my opinion there is no substance in the second submission.
The appellant's third submission is a narrow one. It is that the original
application for an attachment and an interdict was attended
by a number of
irregularities on the part of Drop Inn, and that to allow Drop Inn to attach the
costs awarded to Longman in those
proceedings would amount
13
to a condonation of an abuse of the process of the court.
In his judgment on that application, BURGER J said:
"No interdict.(sc. against the Bank) was asked for in the original
application... The Bank was not cited as a party, nor was notice
of the
application given to it. It was not disclosed to the court that the Bank was
opposed to an interdict against the debit of
Drop Inn's account, nor was the
agreement in terms whereof Drop Inn would place no barrier against the
remittance of such funds to
Longman disclosed to the
Court."
He concluded by saying that in view of the
grave
irregularities at the time of its issue, the interdict
against the
Bank could not stand.
Counsel for the appellant addressed to us
detailed
argument regarding Drop Inn's conduct in
those proceedings,
but it is not necessary to refer to it, because I cannot
see
that, whatever irregularities may have been committed by Drop
Inn in
the original application, they can have any bearing
on its right to seek and
obtain an order for attachment under
the present application. The essential
fact is that Longman
became possessed of property attachable within the area of
14
jurisdiction of the CPD; the genesis of that property was irrelevant.
The appeal is dismissed with costs.
H C NICHOLAS
AJA
CORBETT CJ
E M GROSSKOPF JA
KUMLEBEN JA CONCUR
GOLDSTON, AJA