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[1990] ZASCA 115
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Ewing McDonald & Co. Ltd. v M & M Products Company and Others (199/89) [1990] ZASCA 115; 1991 (1) SA 252 (AD); [1991] 1 All SA 319(A) (28 September 1990)
CG CASE NUMBER: 199/89
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the case of:
EWING McDONALD & CO LTD
Appellant
(1st Respondent a quo)
and
M & M PRODUCTS COMPANY
1st Respondent
(Applicant a
quo)
THE DEPUTY SHERIFF FOR
THE DISTRICT OF PRETORIA
2nd
Respondent
(2nd Respondent a quo)
THE REGISTRAR OF TRADE MARKS
3rd
Respondent
(3rd Respondent a quo)
CORAM: VAN HEERDEN, SMALBERGER JJA, NICHOLAS, FRIEDMAN
et
NIENABER
AJJA.
HEARDON: 10 SEPTEMBER 1990
DELIVERED ON
: 28 SEPTEMBER 1990
JUDGMENT NIENABER AJA
2
The appellant company is the cessionary of a claim against the first
respondent (hereinafter referred to as "the respondent") for
damages for breach
of contract. The appellant is anxious to pursue that claim in the Witwatersrand
Local Division of which it is
an incola. The respondent is a corporation which
is registered in the United States of America. Its principal place of business
is
in Atlanta, Georgia. The respondent accordingly is a peregrinus of the
Republic. The agreement was concluded elsewhere but it was
common cause at the
hearing of the appeal that it was to be implemented throughout the Republic of
South Africa so that Johannesburg
was a locus solutionis and the Witwatersrand
Local Division a forum solutionis.
Nothwithstanding this ratio jurisdictionis
the appellant correctly thought it necessary to attach property of the
respondent in order
to vest the Witwatersrand Local Division with jurisdiction
to try the
3
contemplated action. The appellant accordingly brought an ex parte
application in the Witwatersrand Local Division before Van Dyk
J for an order
inter alia authorising the attachment ad fundandam, alternatively, ad
confirmandam jurisdictionem, of the respondent's
rightf title and interest in
and to certain trade marks held by the respondent and registered in South
Africa. This application was
successful. Pursuant to that order the deputy
sheriff for the district of Pretoria attached the trade marks specified in the
order.
However, those trade marks were all registered in Pretoria and as such
fell outside the area of jurisdiction of the Witwatersrand
Local Division. (Cf
SPORTSHOE (PTY) LTD v PEP STORES (SA) (PTY) LTD
1990 (1) SA 722
(A) at
726 F-G;
REMBRANDT FABRIKANTE EN HANDELAARS (EDMS) BPK v GULF OIL
CORPORATION
1963 (3) SA 341
(A) at 348H-349B.) Thë respondent thereupon
launched an application in the Witwatersrand Local Division, on
4
notice to the appellant, seeking to reverse the earlier order authorising the
attachment. This application, before MacArthur J, in
turn also succeeded. The
entire order granted by Van Dyk J as well as the actual attachment were set
aside, with costs. It is against
that order that the appellant, with leave of
the court a quo, now appeals. The deputy sheriff for the district of Pretoria
and the
registrar of trade marks were cited as parties. Neither of them took an
active part in the proceedings, either in the court below
or in this one.
The
central issue, which is a controversial one, is thus whether one division of the
Supreme Court of South Africa has jurisdiction
to order the attachment ad
fundandam or ad confirmandam jurisdictionem of property which is situated
outside its area of jurisdiction
but within that of another
division.
Jurisdiction in the present context means the power vested in a
court by law to adjudicate upon,
5
determine and dispose of a matter (cf
GRAAFF-REINET
MUNICIPALITY
v VAN RYNEVELD'S PASS IRRIGATION BOARD
1950
(2) SA 420 (A) at 424;
VENETA MINERARIA SPA v
CAROLINA
COLLIERIES (PTY) LTD (IN LIQUIDATION)
1987 (4) SA 883
(A)
at 886D). Such power is purely territorial; it does not
extend beyond the boundaries of, or over subjects or
subject-matter not associated with, the court's ordained
territory. In the most recent pronouncement on the topic
of jurisdiction
by this court,
BISONBOARD LIMITED v K
BRAUN WOODWORKING MACHINERY
(PROPRIETARY) LIMITED
, case
no 384/88, in a judgment delivered on the day
the present
matter was argued in this court, Hoexter JA, at page 6 of
the typescript copy of the judgment, quoted, with
approval, the following
remarks of Bristowe J in
SCHLIMMER v EXECUTRIX IN ESTATE OF RISING
1904 TH 108
at
111:
"Now the jurisdiction of the courts of every country is territorial in its
extent and character, for it is derived from the
sovereign
6
power, which is necessarily limited by the boundaries of the State over which it
holds sway. Within those boundaries the sovereign
power is supreme, and all
persons, whether citizens, inhabitants, or casual visitors, who are personally
present within those boundaries
and so long as they are so present, and all
property (whether movable or immovable) for the time being within those
boundaries, are
subject to it and to the laws which it has enacted or
recognised."
Hoexter JA then went on to say (at page 6):
"Although the same common law applies throughout South Africa, it is trite that
upon the establishment of the Union of South Africa
the separate judicial
systems of the four colonies were largely preserved despite their formal
unification in the Supreme Court of
South Africa. In terms of sec 19 of the
Supreme Court Act the original jurisdiction enjoyed by the provincial and local
divisions
is limited to the extent of their respective territorial areas. Such
territorial jurisdiction is confirmed by sec 68 (2) of the Republic
of South
Africa Constitution Act, No 110 of
1983."
Being territorial, the original
jurisdiction of
each division is nowadays to be exercised within the
particular
geographical areas specified in the First
7
Schedule to the Supreme Court Act, 59 of 1959 (cf
ESTATE
AGENTS
BOARD v LEK
1979 (3) SA 1048
(A) at 1059D;
VENETA
MINERARIA SPA
v CAROLINA COLLIERIES (PTY) LTD (IN
LIQUIDATION)
, supra, at 886G).
The territoriality
of each division is epitomised in sec 19 (1) of the
Supreme Court Act, 59
of 1959 ("the SC Act") which, in so
far as it is relevant for present purposes, reads:
"19(1)(a) A provincial or local divison 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 ..."
This section, the
latest in a line of
legislative enactments broadly restating the common law,
differentiates
between "persons" and "causes arising".
The expression "causes arising" has
been interpreted, in
the
BISONBOARD
judgment, supra, at page 11 of the
typescript copy
"... as signifying not 'causes of action arising' but 'legal proceedings duly
arising',
8
that is to say, proceedings in which the court has jurisdiction under the common
law".
Since a court under the common law would have
had
jurisdiction over persons domiciled within its area of
jurisdiction (who would include, although not confined to
persons "residing or being in"), "persons residing or
being in" and "causes arising" are not antithetical
concepts; the former is merely an elaboration of the
latter. (Cf
STEYTLER NO v FITZGERALD
1911 AD 295
at
315.) The phrase "persons residing or being in" harks
back to the rule of
Roman law: actor sequitur forum rei.
According to that rule an incola who
wished to pursue a
peregrinus was obliged to travel to the latter's forum
to
do so but, by the same token, was only liable to be sued
in his own. (Cf
SCIACERO & CO v CENTRAL SOUTH
AFRICAN
RAILWAYS
1910 TS 119
at 121.) To assist its own
incolae
the law of Holland adopted a procedural expedient,
borrowed from Germanic custom, of arrest of the person of
9
the defendant or the attachment of his property ad
fundandam
jurisdictionem. In
THERMO RADIANT OVEN SALES
(PTY) LTD v NELSPRUIT BAKERIES (PTY) LTD
1969 (2) SA 295
(A) Potgieter JA at 305F explained:
"The reason for the arrest ad fundandam jurisdictionem was to avoid the costs
which citizens would have to incur if they had to pursue
the foreigner to the
court of his domicile and was conceived primarily for the benefit of the incola.
(See PECKIUS,
VERHANDELINGHE VAN HANDOPLEGSEN
, part II, par. 6; VROMANS,
DE FORO COMPETENTI
, 1.3.15, n. 34,
BRADBURY GREATOREX CO. (COLONIAL)
LTD. v. STANDARD TRADING CO. (PTY.) LTD.
,
1953 (3) S.A. 529
(W) at p. 532.
Originally the purpose of the arrest or attachment was a kind of compulsion to
which the foreigner was subjected so
that he could be induced to pay his
creditor rather than endure the worry of arrest or the retention of his
property."
After discussing certain other aspects,
Potgieter JA
then stated (at 306H - 307A):
"It appears to me thereforê, that in the law of Holland already one of the
purposes of the attachment of property to found
jurisdiction was to enable the
incola to execute on that property after judgment. In other words, the
attachment of property served
to found
10
jurisdiction and thereby enabled the Court to pronounce a not altogether
ineffective judgment."
(See also
LONGMAN
DISTILLERS LTD v DROP INN GROUP OF
LIQUOR SUPERMARKETS (PTY) LTD
[1990] ZASCA 39
;
1990 (2) SA 906
(A) at
912B-E.)
It is this principle of effectiveness
which, in conjuntion with sec 26 (1) of the SC Act, is the central theme of the
appellant's
argument.
But before elaborating on it and in order to put the
argument into perspective, it may be helpful briefly to recapitulate the
grounds,
apart from voluntary submission, on which a division of the Supreme
Court according to current law and practice will assume jurisdiction
in respect
of claims sounding in money. (a)
Where the plaintiff (or the applicant) is
an
incola and the defendant (or the respondent) is
a foreign peregrinus (i.e. a peregrinus of the
country as a whole)
:
11
the arrest of the defendant or the attachment of his property is essential.
Since a recognised ratio jurisdictionis by itself will
not do it is immaterial
whether such arrest or attachment is one ad fundandam jurisdictionem (where
there is no other recognised
ground of jurisdiction) or ad confirmandam
jurisdictionem (where there is). The corollary of this rule is that an incola
can pursue
his claim where it is most convenient for him to do so, namely,
within his own locality, even if his cause of action has no connection
with that
area other than the arrest or attachment. (See generally,
THERMO RADIANT OVEN
SALES (PTY) LTD v NELSPRUIT BAKERIES (PTY) LTD
, supra, at 300 C-D;
VENETA
MINERARIA SPA v CAROLINA COLLIERIES (PTY) LTD (IN LIQUIDATION)
, supra, at
889D). (b)
Where the plaintiff is an incola and the
12
defendant is a local peregrinus (i.e. a peregrinus of the division but an
incola of the country as a whole)
:
the existence of a recognised ratio
jurisdictionis is essential. Arrest or attachment is not only unnecessary, it is
in fact impermissible
(sec 28 (1) of the SC Act). Compared to his situation
under common law such an incola is better placed in the sense that arrest or
attachment is not required at all; but worse off in the sense that arrest or
attachment to
found
jurisdiction is no longer allowed - in that event the
general rule actor sequitur forum rei would apply. (Cf
TABORYSKI v SCHWEIZER
& APIRION NO
1917 WLD 152
at 158-9;
SWIFT v NATIONAL BANK OF SOUTH
AFRICA
1923 OPD 24
;
FRANK WRIGHT (PTY) LTD v CORTICAS "B.C.M." LTD
1948 (4) SA 456
(C); POLLAK :
THE SOUTH
13
AFRICAN LAW OF JURISDICTION
, 71-75, 83; HERBSTEIN AND VAN WINSEN :
THE
CIVIL PRACTICE OF THE SUPERIOR COURTS OF SOUTH AFRICA
, 3rd edition, p.
39.)
(c)
Where the plaintiff is a peregrinus (foreign or
local) and the
defendant is a
foreign
peregrinus
:
both a recognised
ratio jurisdictionis as well as an arrest or attachment are essential. Any
arrest or attachment merely ad fundandam
jurisdictionem would not be sufficient.
To be sufficient the arrest or attachment must necessarily be one ad
confirmandam jurisdictionem.
(Cf
POLLAK
, op. cit., 52, 58, 62-3;
HERBSTEIN AND VAN WINSEN
, op. cit., 40;
MARITIME & INDUSTRIAL
SERVICES LTD v MACIERTA COMPANIA NAVIERA SA
1969 (3) SA 28
(D).)
(d)
Where the plaintiff is a peregrinus (foreign or
14
local) and the defendant is a local peregrinus
:
a
ratio jurisdictionis alone will suffice, in
as much as sec 28 (1) of the SC
Act forbids the
"attachment of person or property" of someone
"resident in the Republic". (e)
Where the defendant is an incola
:
the general rule actor sequitur forum rei
applies.
The present case falls under category (a).
The rules in (a) and (e) have been expressly approved by this court. Those in
(b), (c)
and (d) have not. Without necessarily implying reservations about them,
the question as to their correctness does not now arise.
(Cf
BODENSTEIN
,
34 (1917) SALJ 193
, 457; KAHN,
70 (1953) SALJ 226
; 1969 ANNUAL SURVEY
419-420.)
The appellant's main submission may be paraphrased as follows:
The doctrine of effectiveness lies at the root
15
of jurisdiction. A judgment would not be effective if it should yield an
empty result. The result would be empty if judgment is obtained
against a
foreign peregrinus who is absent from the jurisdiction and who owns no assets in
it. But the attachment of an asset of
his within the jurisdiction would render
the judgment effective since the attachment would produce an asset on which
execution could
eventually be levied. The attachment would therefore make the
peregrinus amenable to the court's jurisdiction. At common law and
before Union
the property as a matter of practical necessity, had to be within the boundaries
of the court since the authority of
the court did not extend to property outside
its borders. After Union, the situation, according to counsel, changed.
Legislation
intervened. Section 26(1) of the SC Act, following on similar
enactments in the past, now provides:
"The civil process of a provincial or local
16
division shall run throughout the Republic and may be served or executed within
the jurisdiction of any division."
A court can now
make an order which can be executed on
assets found outside the boundaries of
its jurisdiction,
thereby rendering its judgment fully effective. Because
effectiveness is
the basis of a court's jurisdiction and
because an attachment, after
judgment, would render its
judgment effective, an attachment before judgment (so it
was contended)
would equip the court with the required
jurisdiction to try the matter.
I
have three major difficulties with this approach. In the first place there is, I
believe, a flaw in its logic; in the second place,
it emphasises effectiveness
at the expense of territoriality; and in the third place it attributes to sec 26
of the SC Act a function
which, according to the authorities to which I shall
presently refer, it does not have.
I deal with each of these points in
turn.
17
Firstly. Effectiveness is an essential feature of jurisdiction. A judgment
would be effective if an asset outside the jurisdiction
but within the country
were attached in execution. All of that is so. But the reverse is not equally
valid, namely, that since such
an asset would be capable, after the suit, of
attachment for the sake of levying execution, it is likewise capable, before the
suit,
of attachment for the sake of conferring jurisdiction. That is to confuse
the sequel of a competent judgment (attachment to levy
execution) with a
prerequisite for its competence (attachment to found jurisdiction) - in short,
to transpose cause and effect.
Secondly. While effectiveness may be the
rationale for jurisdiction, it is not necessarily the criterion for its
existence. It is
true that effectiveness is, as Potgieter JA said in
THERMO
RADIANT OVEN SALES (PTY) LTD v NELSPRUIT BAKERIES (PTY) LTD
, supra, at 307A,
"the basic principle of jurisdiction in
18
our law". (See, too,
HUGO v WESSELS
1987 (3) SA 837
(A)
at 849J;
855G-I.) But it is as true that "...
effectiveness does not per se confer
jurisdiction on a
Court" (per Viljoen JA in
VENETA MINERARIA SPA v
CAROLINA
COLLIERIES (PTY) LTD (IN LIQUIDATION)
, supra, at
891C).
According to Viljoen JA, in the judgment referred to, at
893F:
"The crucial question that presents itself is: what jurisdiction does a Supreme
Court in South African law possess? A Court can only
be said to have
jurisdiction in a matter if it has the power not only of taking cognisance of
the suit but also of giving effect
to its
judgment."
A court will have the power "of taking
cognisance of the
suit" if the relevant cause arises within its area of
jurisdiction. The
cause would thus arise, again according
to Viljoen JA in the same judgment at
893G-J (following
Innes ACJ in
THE OWNERS, MASTER AND CREW OF THE SS HUMBER
v THE
OWNERS AND MASTER OF THE SS ANSWALD
1912 AD 546
at
554), if it could be said to have done so according to
19
the common law. At common law a ratio jurisdictionis alone would not have
vested that court with jurisdiction to try the action. The
court could have been
so vested as a matter of course only if the defendant happened to be domiciled
within its area; in all other
cases his arrest or the attachment of his property
would have been a precondition for jurisdiction. (See the discussion of the
common
law in
BROOKS v MAQUASSI HALLS LTD
1914 CPD 371
te 376;
EX
PARTE GOLDSTEIN
1916 CPD 483
;
CAPE EXPLOSIVES WORKS LTD v SOUTH AFRICAN
OIL AND FAT INDUSTRIES LTD
1921 CPD 244
at 267;
HOLLAND V JOHNSTONE &
CO LTD
1925 CPD 132
at 135;
FERGUSON AND ANOTHER v PEDERSEN
1926 WLD
246
;
HALSE v WARWICK
1931 CPD 233
; WESSELS :
HISTORY OF THE ROMAN
DUTCH LAW
689.) The modern distinction between attachments ad fundandam and
attachments ad confirmandam jurisdictionem was of no consequence
to the common
law. And because the court's jurisdiction was essentialy territorial the
property
20
attached had to be found within the area of jurisdiction
of the court. VOET 2.4.29, for example, states:
"The judge competent to make an order for taking in charge is the judge in whose
area the persons or things to be arrested are found."
(Gane's
translation.)
(See, too, VOET 2.4.22; 5.1.73;
GROENEWEGEN ad Codex
3.18.)
Counsel's argument runs counter to the common
law and offends against the primary principle of the territoriality of the
court's jurisdiction.
It means that a court would presume to exercise
jurisdiction even if there were no connection between the defendant and its area
of jurisdiction, neither as to his person or his property, nor as to the cause
of action.
But, argues counsel, the present situation differs from the common
law precisely because of a history of statutory changes in this
country,
culminating in sec 26 of the SC Act. The inescapable implication of
21
this thesis is that these provisions constituted
legislative incursions into the common law which, in the
result, served to expand the jurisdictional boundaries of
the separate divisions of the Supreme Court. But that,
according to the authorities, was simply not so. This
brings me to the
third point of criticism mentioned
above.
The first relevant provision was sec 112 of
the
South Africa Act 1909 which was introduced to
eliminate
certain procedural problems which were encountered when a
cause
arose in one jurisdiction in the Union but an
affected party happened to be
in another. (Cf
ESTATE
AGENTS BOARD v LEK
, supra, 1061B.) This
section
provided:
"The registrar of every provincial division of the Supreme Court of South
Africa, if thereto requested by any party in whose favour
any judgment or order
has been given or made by any other division, shall, upon the deposit with him
of an authenticated copy of
such judgment or order and on proof that the same
remains
22
unsatisfied, issue a writ or other process for the execution of such judgment or
order, and thereupon such writ or other process
shall be executed in like manner
as if it had been originally issued from the division of which he is
registrar."
This section, it has been held, did not
extend the jurisdiction of the court so as to enable it to order an attachment
of property
situated outside its own area which it was not otherwise empowered
to do. (Cf
KOPPE AND CO v ACCREYLON CO, INCORPORATED
,
1948 (3) SA 591
(T)
at 593.)
Sec 6 of the Administration of Justice Act 27 of 1912 dealt
specifically with a writ of arrest in connection with civil proceedings
issued
out of any Superior Court where the person concerned was within the Union but
outside the court's area of jurisdiction. The
section permitted the registrar of
the court to transmit the writ to the appropriate officer at the place where the
person was present,
who was authorised to execute the
23
writ in accordance with the practice of the court at that place. That
section, which dealt only with arrest and not with attachment,
was likewise held
to have neither extended nor conferred a jurisdiction which the court otherwise
lacked (cf
FERGUSON AND ANOTHER v PEDERSEN
, supra, at 247).
These
provisions were all overtaken by the SC Act. Sec 112 of the South Africa Act, in
particular, was replaced by sec 26 of the new
Act. Sec 6 of the 1912 Act,
incidentally, was not re-enacted. Sec 26 was in turn amended by sec 5 of Act 85
of 1963. It now reads
in the form guoted earlier.
The argument now advanced
is not a novel one. Aspects of it were considered, mostly in the context of sec
6 of Act 27 of 1912 dealing
with arrests (as opposed to attachments), in the
Cape in
BROOKS v MAQUASSI HALLS
LTD, supra;
EX PARTE GOLDSTEIN
,
supra;
CAPE EXPLOSIVES WORKS LTD v SOUTH AFRICAN OIL AND FAT INDUSTRIES
LTD
,
24
supra and
HOLLAND v JOHNSTON AND
CO LTD, supra, and in
the
Transvaal in
FERGUSON AND ANOTHER v PEDERSEN
, supra,
in which Tindall J, at 247, declared:
"That section, in my opinion, does not give the Court any greater powers than it
had before in regard to the arrest of a defendant
to found jurisdiction. It only
provides facilities for executing a writ outside the jurisdiction. It was
intended to meet the contingency
that after the granting of the order of arrest
the defendant might have left the jurisdiction; the section does not empower the
Court
to arrest a person who at the time of the granting of the order of arrest
is outside the jurisdiction. In view of the union of the
Provinces it may be
argued that it is desirable that the Provincial Divisions of the Supreme Court
should have such power; but in
my opinion the power is not given by sec
6."
KOPPE AND CO v ACCREYLON CO,
INCORPORATED
,
supra, dealt with attachments. According to the court
(Roper J, at 593), there was nothing in sec 112 of the
South Africa Act
1909 nor indeed in Act 27 of 1912 which
so extended the court's jurisdiction
as to enable it to
authorise an attachment outside its own area, although
25
the judgment departed from the earlier cases in reasoning, e contrario but
obiter, that sec 6 (dealing with arrests) did so.
In
BOCK & SON (PTY)
LTD v WISCONSIN LEATHER CO
1960 (4) SA 767
(C), decided after sec 26 of the
SC Act was substituted for sec 112 of the South Africa Act, Rosenow J granted an
application for
the attachment of property situated outside the court's
jurisdiction, but inside the Union, in order to found jurisdiction. He rested
the decision on sections 34 and 36 of the SC Act but this line of reasoning was
rightly rejected by Vivier J in
HARE v BANIMAR SHIPPING CO SA
1978 (4) SA
578
(C). Vivier J declined to follow
BOCK'S
case or indeed two later ones
which arrived at the same conclusion, namely
CURBERA v S.A. PESQUERA
INDUSTRIAL GALLEGA
1969 (3) SA 296
(C) and
EX PARTE GERALD B COYNE (PTY)
LTD
:
IN RE GERALD B COYNE (PTY) LTD v SINCO TRADING CO LTD
1971 (1)
SA 624
(W) , in both of which cases the Cape and the
26
Transvaal courts respectively sought to justify the
attachments of goods
outside their respective
jurisdictions by referring to sec 26 of the SC
Act.
I agree with Vivier J's analysis and criticism
of this trilogy of aberrant cases in
HARE v BANIMAR
SHIPPING CO
SA
, supra, and I do not propose to cover the
same ground. Vivier J associated himself with the views
earlier expressed
by Kotze J in
EX PARTE BOSHOFF
1972 (1)
SA 521
(E), where the learned
judge observed that the
argument founded on sec 26 necessarily implied that
sec
26 extended the court's jurisdiction and by doing so
altered the
common law. The language of sec 26, Kotze J
said (at 523A), was
"... hardly the language one would expect the Legislature to have used to widen
so fundamental a matter as the jurisdiction of the
Supreme
Cóurt".
Sec 26, it was held (at 523A), was
only intended
"to give validity to process, competently decreed, and to facilitate its
execution,"
27
and could not be construed as conferring jurisdiction
otherwise
lacking.
In support of this line of reasoning Vivier J,
in
HARES'S
case, said (at 583 C-G):
"From the aforegoing it is clear that the power to enforce a judgment of one
Division in another Division has always been there since
s 112 of the South
Africa Act, yet this section has never been considered enough to give the Court
jurisdiction to attach the person
or property in the area of another Court.
Neither was s 6 of the 1912 Act, which deals with the execution of a writ of
arrest of
the person in another Division, considered sufficient to confer
jurisdiction which the Court did not previously have. ... From a
comparison of s
26 of the Supreme Court Act, in its present form, with its predecessors it seems
to me that s 26 has been amended
in order to streamline the procedure for the
enforcement of the process of one Division in the area of another, namely by
doing away
with the additional procedure previously required for that purpose
and by making it apply automatically. It seems to me to be no
more than a
procedural change in order to facilitate execution, and the wording falls far
short of what I would have expected had
the Legislature intended to confer
increased jurisdiction on one Division in respect of property or
persons
28
in another Division. I therefore find myself in full agreement with the decision
in
EX PARTE BOSHOFF
(supra)."
Vivier J then dealt with an
argument, which
anticipated the one advanced in this court, in the
following terms, at 583 G-H:
"It was argued by Mr Knight, for the applicant, that, as the basic principle of
jurisdiction in our law is effectiveness (
SONIA (PTY) LTD v MHEELER
1958
(1) SA 555
(A) at 563 and
THERMO RADIANT OVEN SALES (PTY) LTD v NELSPRUIT
BAKERIES (PTY) LTD
1969 (2) SA 295
(A) at 307), the power to enforce the
Court's judgment in another Division must carry with it the power to grant the
order in the
first place. I do not agree with this submission. As I have pointed
out, the power to enforce the Court's judgment in another Division
has been
there since the enactment of s 112 of the South Africa Act and s 6 of the 1912
Act, yet this power was not considered sufficient
to give the Court jurisdiction
to attach property or persons in another Division.
The very Act which confers the power (namely the Supreme Court Act, s 26) also
contains ss 19 (1 ) and 6 read with the First Schedule
to the Act, which define
and limit the areas of jurisdiction of the various Divisions of the Supreme
Court. The mere conferment of
the power cannot therefore, in my view, be
sufficient to give this Court jurisdiction
over
29
persons and property in another Division."
These matters received the abtention,
albeit
peripherally, of this court in
ESTATE
AGENT'S BOARD v
LEK
, supra. At 1062D-1063A Trollip JA stated:
"To revert now to the SC Act of 1959. As I have already mentioned, it retained
the existing system of the Divisions of our Supreme
Court, each with
substantially the same territorial, original jurisdiction in civil matters as
had previously existed (ss 19 and
44). Moreover, in the place of ss 3 and 5 of
the 1912 Act and s 112 of the South Africa Act, which were repealed, ss 25, 26
and 28
(1) were enacted, which, in their original, unamended form, were
substantially similar. True, no provision similar to s 7 of the
1912 Act was
reproduced. (Section 7, it will be recalled, expressly said that no increased
jurisdiction was in effect conferred by
those and other sections in the 1912
Act.) But, despite that, I think that the inference is irresistible that the
Legislature did
not, by enacting ss 25, 26 and 28 (1), intend to endow a
Division with jurisdiction in any proceedings merely because its process
commencing the proceedings or its judgment or order therein could be served and
executed, as hitherto, on a South African incola
outside its area of
jurisdiction. For that would have meant that each and every Division was to have
original jurisdiction over all
causes, wherever arising, provided
only
30
that the defendant or respondent was a South African incola; that would have
been guite contrary to the fundamental concept of the
territorial jurisdiction
of the Divisions entrenched in the SC Act of 1959. It would also have been quite
contrary to the well-established
pre-existing legal position expounded above. If
that were intended one would have expected an explicit and positive provision in
the SC Act of 1959 to that effect, rather than merely the negative step of not
reproducing therein s 7 of the 1912 Act. Sections
25 and 26 of the SC Act of
1959 were subsequently amended by Act 85 of 1963. They were thereby combined in
a single provision in
s 26 (1) saying simply that the civil process of any
Division shall run throughout the Republic and may be served or executed within
the jurisdiction of any Division. This was merely to further simplify the
procedure and did not augment the jurisdiction of a Division
in any way. See
EX PARTE BOSHOFF
1972 (1) SA 521
(E) at 522-3 and
HARE v BANIMAR
SHIPPING CO
SA
1978 (4) SA 578
(C). According to the authorities referred to
in those cases, conflicting views have been expressed in the past about the
effect
of s 26 (1) on the jurisdiction of a Division. It is partly for that
reason that I have canvassed the problem in this judgment in
so much detail. No
view is expressed on the correctness or otherwise of the actual decisions in the
BOSHOFF
and
HARE
cases, for they dealt with other, different
problems of jurisdiction, but I agree with the views expressed in both cases
that s 26
(1)
31
does not by itself confer ariy new jurisdiction on a
Division."
(And see
HUGO v WESSELS
, supra, at
852A-853A; 854 C-D.)
In this passage Trollip JA endorsed the ratio
of decisions such as
EX PARTE BOSHOFF
, supra, and
HARE
v
BANIMAR SHIPPING CO SA
, supra, but did not find it
necessary
to approve them expressly. Once, however, it
is resolved that sec 26 does not bestow a jurisdiction
otherwise lacking,
it defeats the argument advanced by
the appellant in this court, which in
effect uses that
proposition as its fulcrum. That, too, was the
conclusion
reached in two subsequent decisions in which
the point arose, namely,
TEDECOM ELECTRICAL ENGINEERING
SERVICES (PTY) LTD v BERRIMAN
1982 (1) SA 520
(W) and
UNIROYAL INCORPORATED v THOR CHEMICALS SA (PTY)
LTD
1984
(1) SA 381 (D).
For these reasons the appellant's main argument
must fail.
32
The appellant also advanced an alternative argument founded on the distintion
between an attachment which is ad confirmandam as opposed
to one that is ad
fundandam jurisdictionem. By common consent the attachment in this case was ad
confirmandam jurisdictionem because
the agreement was to be implemented in
Johannesburg. Accordingly, so it was submitted, the attachment should be
sanctioned, since
the existing ratio jurisdictionis provided the necessary nexus
between situs and suit. But of course, if that were the only link
reguired to
vest a court with jurisdiction, attachment or arrest would not have been a
requirement at all. And that has never been
the law. The alternative argument
accepts the proposition that an attachment or arrest is mandatory whenever the
defendant is a foreign
peregrinus. That being so, it became necessary, in order
to round off the argument, once again to invoke sec 26. And as soon as that
happens it is no
33
longer an alternative argument, it is simply an alternative formulation of
the same argument. If the main argument fails, as it must,
so does its supposed
alternative.
The appeal is dismissed with costs, such costs to include the costs of two
counsel.
P M NIENABER AJA
CONCUR:
VAN
HEERDEN JA)
SMALBERGER JA)
NICHOLAS AJA)
FRIEDMAN AJA)