Jamieson v Sabingo (329/2000) [2002] ZASCA 20; [2002] 3 All SA 392 (A) (27 March 2002)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2002
>>
[2002] ZASCA 20
|

|

Jamieson v Sabingo (329/2000) [2002] ZASCA 20; [2002] 3 All SA 392 (A); 2002 (4) SA 49 (SCA) (27 March 2002)

REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case number: 329/2000
Reportable
In the matter between:
JAMIESON, NEIL
Appellant
and
SABINGO, AMINDO CESAR
Respondent
CORAM
: NIENABER, FARLAM, NAVSA, MTHIYANE JJA, et
LEWIS AJA
HEARD
: 21 FEBRUARY 2002
DELIVERED
: 27 MARCH 2002
SUMMARY:
Jurisdiction – attachment to
confirm jurisdiction – whether possible where voluntary submission
to jurisdiction by defendant
occurs after attachment order made but
before execution thereof.
_____________________________________________________________
JUDGMENT
_____________________________________________________________
FARLAM JA
FARLAM JA:
[1]
This is an appeal from a judgment of Willis
J, sitting in the Witwatersrand Local Division of the High Court, who
discharged a rule
nisi
granted on an
ex parte
basis in
favour of the appellant by Malan J on 13 July 1999. The judgment of
the Court
a quo
has been reported: see
Ex parte Jamieson:
In re Jamieson v Sabingo
2001(2) SA 775(W).
[2]
The appellant is an
incola
of the area
of jurisdiction of the Court
a quo.
The respondent is a
peregrinus
of South Africa as a whole, described by this Court
(in
Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in
liquidation)
1987(4) SA 883(A) at 886C) as ‘an out-and-out
peregrinus’
. He had obtained judgment in the Witwatersrand
Local Division on 30 April 1999 against a company known as Madiba Air
(Pty) Ltd for
the rand equivalent of $142 000, plus interest and
costs on the scale as between attorney and client.
[3]
The rule
nisi
granted on 13 July 1999
was part of an order which read as follows:
‘1. That leave be granted to Applicant to institute action against
Dr Amindo Cesar Sabingo in terms of the Particulars of Claim
being
annexure “A” hereto (“the action”), within two weeks of date
of this Order.
2. That the right, title and interest in the judgment of Dr Amindo
Cesar Sabingo against Madiba Air (Pty) Limited under case number
97/29219 of this Court, a certified true copy whereof is annexed
hereto marked “B”, be placed under attachment to found
jurisdiction
in the action pending the final determination of the
action.
3. That leave be granted to the Applicant to institute the action by
way of edictal citation.
4. That this order and the citation be served on Dr Amindo Cesar
Sabingo as provided for in the Uniform Rule of Court 4 at Maboque,
Rua Gastao de Sousa Dias VI-990, Luanda, Angola.
5. That Dr Amindo Cesar Sabingo be allowed two (2) months from date
of this Order within which to enter an appearance to defend the
action.
6. That paragraph 2 above will operate as a rule nisi returnable two
months from the date of this order.
7. That the costs of this application be costs in the main action.’
[4]
The order for the attachment of the
respondent’s ‘right, title and interest’ in the judgment
against Madiba Air (Pty) Ltd granted
on 13 July 1999 was executed
only on 7 September 1999. On 19 August 1999, some two and a half
weeks before this took place, attorneys
acting on behalf of the
respondent wrote a letter to the appellant’s attorneys, which
contained the following:
‘... in light of the fact that we represent our client in South
Africa, we confirm that our client hereby consents to the
jurisdiction
of the Witwatersrand Local Division of the High Court in
respect of your client’s action and our client also appoints our
offices
as his chosen
domicilium citandi et executandi
for all
purposes. There is accordingly no need for you to confirm the order
already obtained, or indeed to serve the Order for the
attachment of
the Judgment, and there is also no need for the Writ of Attachment
which must have been issued by yourselves in respect
thereof to be
executed by the Sheriff. An attachment is now not necessary or
competent under the circumstances.’
[5]
The claim which forms the subject matter of
the action instituted by the appellant against the respondent was
based on a contract
allegedly concluded by the appellant and the
respondent for the sale and installation by the appellant at a hotel
in Luanda, Angola,
of a water purification system, a power generator
and a vibrating compact roller. Although the appellant alleged in
his founding
affidavit that the contract between the respondent and
himself was an oral one entered into at Luanda, he annexed a copy of
a quotation
he allegedly sent by facsimile transmission to the
respondent in Angola together with a copy of a letter which the
respondent had
sent, also by facsimile transmission, to him in
Johannesburg in which his quotation was accepted. Although Willis J
found (at 777G)
that the contract was concluded in Luanda, when the
matter was argued before us, Mr
Horwitz,
who appeared with
Mr
Kaplan
for the appellant, conceded that the case had to be
approached on the basis that the contract was concluded in
Johannesburg when the
appellant received the respondent’s letter
accepting his quotation. In my opinion this concession was correctly
made. Parties
who communicate by telephone, telex or telefacsimile
transmission are ‘to all intents and purposes in each other’s
presence’
(to use an expression used by Parker LJ in
Entores Ltd
v Miles Far East Corporation
[1955] 2 QB 327
(CA) at 337) and the
ordinary rules applicable to the conclusion of contracts made by
parties in each other’s physical presence
apply,
viz.,
the
contract comes into existence when and where the offeree’s
acceptance is communicated and received to the offeror. This has
been held to be the legal position in the case of contracts concluded
over the telephone (
Tel Peda Investigation Bureau (Pty) Ltd v Van
Zyl
1965(4) SA 475(E), approved by this Court in
S v Henckert
1981(3) SA 445 (A) at 451B) and contracts concluded by telex
(
Entores Ltd v Miles Far East Corporation, supra,
approved by
the House of Lords in
Brinkibon Ltd v Stahag Stahl und
Stahlwarenhandelsgesellschaft mbH
[1983] 2 AC 34).
By parity of
reasoning the same principle must apply where the parties are in
communication with each other by telefacsimile transmission
(see
Gunac Hawkes Bay (1986) Ltd v Palmer
[1991] 3 NZLR 297
(HC)).
[6]
It follows from this concession that when the
rule
nisi
was granted it was competent for the appellant to
have sought the attachment of the respondent’s property only in
order to
confirm
jurisdiction and not to
found
it.
[7]
As appears from his reported judgment (at
777H–J) Willis J discharged the rule
nisi
because of the
respondent’s voluntary submission to the jurisdiction of the
Witwatersrand Local Division on 19 August 1999 and because
of the
decision of a Full Bench of that division in
American Flag plc v
Great African T-Shirt Corporation CC; American Flag plc v Great
African T-Shirt Corporation CC: In re Ex parte
Great African T-Shirt
Corporation CC
2000(1) SA 356(W), by which he was bound. In the
American Flag
case it was held that even where there was no
other
causa jurisdictionis
(such as that the contract sued on
was concluded in the court’s area of jurisdiction), ‘where the
plaintiff was an
incola
in an action for money submission to
the jurisdiction by the peregrine defendant was effective’ (at
365E–I).
[8]
In the
American Flag
case it was
further held that the legal position as to the effectiveness of a
submission to the jurisdiction of a court of the area
of which the
plaintiff is an
incola
by a defendant who is
peregrinus
of
that area was not changed by this Court in its decision in
Veneta
Mineraria Spa v Carolina Collieries (Pty) Ltd (in Liquidation),
supra.
In that case Viljoen JA, with whom the other members of
the Court concurred, said (at 894A-B):
‘By prorogation a defendant submits 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.’
In the
American Flag
decision (at 366C-D) it was
pointed out that both parties in the
Veneta
case were
peregrini
of the Natal Court from which the case came, the
plaintiff a
peregrinus
of the Republic and the defendant an
incola
of the Transvaal and a
peregrinus
of Natal. It
followed, so it was held, that what was called the ‘
Veneta
dictum’, while wide enough to cover cases where the plaintiff
was an
incola
of the court’s area of jurisdiction, was not
intended to extend to cases where a peregrine defendant consents to
the jurisdiction
of the court of the area of which the plaintiff is
an
incola
(at 368 B – 373 H).
[9]
In the
American Flag
decision it was
further held (at 377B–F) that if the ‘
Veneta
dictum’
intended to extend the inadequacy of consent on its own as a ground
for jurisdiction, even to a case where the plaintiff
is an
incola,
to the extent it was not necessary for the Court’s decision,
was
obiter
and that there were weighty reasons for not
following it. It was also held that the decision in
Briscoe v
Marais
1992 (2) SA 413
(W) was wrongly decided. In that case
Streicher J, relying on ‘the
Veneta
dictum’ (at 416F-G),
held that an attachment to found jurisdiction could not be replaced
by a consent to jurisdiction, as such consent
in itself cannot confer
jurisdiction on the court. Only where a
causa jurisdictionis
apart from attachment exists, ie
only in the case of an
attachment
ad confirmandam jurisdictionem,
can the attachment
become unnecessary as a result of consent to jurisdiction.
[10]
Willis J said (at 778A-B) that he was not
convinced that the Court in the
American Flag
case ‘correctly
divined’ the intentions of the Appellate Division. For that
reason, although he discharged the rule
nisi
granted by Malan
J, and thereby the interim attachment of the respondent’s right,
title and interest in the judgment referred to,
he granted leave to
appeal to this Court and suspended his order pending the decision of
this Court.
[11]
In the light of the concession that the
alleged contract between the parties was concluded in the area of
jurisdiction of the Witwatersrand
Local Division and that a
causa
jurisdictionis
apart from attachment exists, it is unnecessary
for me to consider whether the interpretation and criticism of ‘the
Veneta dictum’
in the
American Flag
decision and the
fairly voluminous academic literature which preceded it (notably the
illuminating note by Professor Ellison Kahn
in 1992
Annual Survey
of SA Law
687-691) is correct. I shall resist the temptation to
do, so first because anything I say on the matter will be
obiter;
and secondly, because Mr
Horwitz
, in view of the
concession to which I have referred, did not address argument to us
on the point. Indeed he conceded that the
American Flag
decision
was correct and sought to uphold the conclusion to which Streicher J
came in
Briscoe v Marais, supra,
on reasons other than those
set out in the judgment in that case.
[12]
This brings me to Mr
Horwitz’s
submissions as to why the appeal should succeed, despite the fact
that the alleged contract was concluded in the area of jurisdiction
of the Witwatersrand Local Division, so that a
causa
jurisdictionis
apart from attachment was present.
[13]
Mr
Horwitz’s
main contention was
that a distinction has to be drawn between a bilateral submission
embodied in a contract between the parties and
a unilateral
submission where a defendant, without the consent of the plaintiff,
submits to the jurisdiction of a court. A bilateral
submission,
where another
causa jurisdictionis
is present, so he
contended, can vest the court with jurisdiction and renders an
attachment of the defendant’s property both unnecessary
and
impermissible. A unilateral submission on the other hand, even where
another
causa jurisdictionis
is present, cannot, so he
contended, vest the Court with jurisdiction and attachment of the
defendant’s property is not only permissible
but also necessary to
confirm jurisdiction.
[14]
Mr
Horwitz
also contended during his
argument in reply, that, even if the distinction between bilateral
and unilateral submissions was not a
sound one, the attempted
submission by the respondent in this case would be of no avail
because it was effected
after
the proceedings for the
attachment of the respondent’s property had been set afoot and
indeed after the attachment order had been
granted. In support of
this submission he relied on the case of
Kasimov and Another v
Kurland
1987 (4) SA 76
(C).
[15]
In developing what I have called his main
contention, Mr
Horwitz
submitted that the courts, more
particularly the Witwatersrand Local Division, had since the 1980’s
begun to accept, wrongly he
submitted, that a
unilateral
submission by a defendant is sufficient to avert attachment of
his or her property to confirm jurisdiction. He submitted further
that the courts took their cue from the judgment of Goldstone J in
Elscint (Pty) Ltd and Another v Mobile Medical Scanners (Pty) Ltd
1986 (4) SA 552
(W). This case, however, was one where the
consent to the court’s jurisdiction was embodied in the contract
which formed the basis
of the plaintiff’s cause of action. It was
accordingly not a case of unilateral submission and was therefore not
authority for
the proposition for which it was relied on. The cases
to which Mr
Horwitz
referred and which he contended were
wrongly decided on this point were
Utah International Inc v Honeth
and Others
1987(4) SA 145(W),
Small Business Development
Corporation Ltd v Amey
1989 (4) SA 890
(W),
Ghomeshi-Bozorg v
Yousefi
1998(1) SA 692 (W) and the
American Flag
case.
[16]
Mr
Horwitz
said that in all those
cases (except the
American Flag
decision) the court simply
assumed, without considering the matter at all, that unilateral
submissions were to be treated in the same
way as cases where there
was a contract between the parties in which they bound themselves to
accept the jurisdiction of a particular
court or where the plaintiff
had sued the defendant in a particular court and the defendant had
fought the case without taking the
point that the court did not have
jurisdiction, in which event he could not thereafter raise the point
(a case of submission by conduct
post litem motam
where what
Mr
Horwitz
called a quasi-contractual relationship between the
parties comes into existence).
[17]
What should have been considered, said Mr
Horwitz,
was whether a defendant
peregrinus
whose
property was liable to attachment to confirm the court’s
jurisdiction should be entitled to foist a submission to the
jurisdiction
on to an unwilling plaintiff so as to deprive him of the
right to attach his property to confirm jurisdiction and to secure
the debt,
to some extent at least. This question had not been
considered in any of the cases.
[18]
As has been said, in no case except the
American Flag
decision was the question considered at all,
while in the
American Flag
case it was merely stated (at 376C)
that there should be no difference in principle. The judgment was
not motivated on the point
and what had happened, said Mr
Horwitz,
was that a quantum leap had been made. He pointed out that Voet
24.2.1 and 2 (to which reference was made in
Du Preez v
Philip-King
1963(1) SA 801(W) at 803A) discusses two categories
of submission: contractual submission and submission consequent upon
unilateral
conduct following upon citation before a tribunal not
ordinarily competent to give judgment against a particular defendant
(where
there was what Mr
Horwitz
called a quasi-contractual
relationship between the parties). There was no basis, he
contended, for holding in favour of the existence of a third category
of
cases, namely cases of unilateral submission by a defendant
without any concomitant action on the part of the plaintiff to
indicate
that the parties are
ad idem
in regard to
jurisdiction.
[19]
Mr
Horwitz
conceded that one case
which might appear to present a problem to him was
Kopelowitz v
Auerbach
(1907) 24SC 567. He contended, however, that an
attachment order was refused in that case less because of a
unilateral submission
by the defendant and more because the defendant
had appointed an agent to represent him and to attend to his business
affairs in
the Court’s area of jurisdiction.
[20]
He submitted further that it has been
accepted for over a century that a plaintiff who establishes a
prima
facie
case and other jurisdictional requisites for an attachment,
such as the arising of the cause of action within the jurisdiction of
the court and the fact that the defendant is an out-and-out
peregrinus,
has a
right
to an attachment, not only for
purposes of vesting the Court with jurisdiction but also so that he
can obtain an effective judgment.
It is accordingly what he called a
startling proposition that a defendant can by his or her unilateral
act deprive the plaintiff
of that right. He contended that the only
route by which this Court could reach the conclusion that a
unilateral submission to jurisdiction
can deprive a plaintiff of a
right to obtain an attachment order in a case such as this would be
for the Court to revisit the century-old
principle that the Court
does not have a discretion to refuse an attachment. There was no
basis, he submitted, for this Court to
do that.
[21]
In my view the answer to Mr
Horwitz’s
submission is to be found in the reason that an attachment is
normally necessary, when it is sought to sue a
peregrinus
in a
case sounding in money, to attach property belonging to the
peregrinus.
It is clear from the authorities (see, eg,
Thermo Radiant Oven Sales Ltd v Nelspruit Bakeries (Pty) Ltd),
1969(2) SA 295(A) at 310 H) that the purpose of an attachment to
found or confirm jurisdiction is to enable the court to pronounce
a
judgment ‘which will not be void of result’.
[22]
The
normal rule, to which the rules relating to attachments to found and
confirm jurisdiction and submissions to jurisdiction are
exceptions,
is
actor sequitur forum rei.
As it was put in the
Thermo
Radiant
case at 305C-D ‘an
incola
was compelled to
institute action against a
peregrinus
in the latter’s
country of domicile’. This rule is based on the principle of
effectiveness: ‘the Court can give an effective
judgment ...
because it is considered that usually a person’s possessions are
where his home is, and that execution can be levied
against those
possessions’ (
Thermo Radiant
case at 309G-H).
[23]
Where action is sought to be instituted in a
court other than the
forum rei
the court in order to be able
to give ‘a judgment which will not be void of result’ has to have
some of the defendant’s property
preserved in its area of
jurisdiction until after judgment so that execution can be levied
thereon (
Thermo Radiant
case at 306 F).
[24]
Those considerations do not apply where the
defendant has submitted to the Court’s jurisdiction. This is
because a judgment given
by a court against a
peregrinus
who
has submitted to its jurisdiction will be internationally enforceable
and will,
eg.,
be recognised by the court of the judgment
debtor’s domicile. It is sometimes said (see, eg,
the
Thermo Radiant
case at 307A) that the principle of voluntary
submission to jurisdiction is an exception to the principle of
effectiveness but that
is only true, as was pointed out by John Peter
in his article ‘Consent Confusion but no Effect’ ((1993)
110
SALJ
15
at 20), insofar as it is an exception to the rule that a court
must be able to give effect to its
own
judgment.
[25]
Indeed a judgment founded on a voluntary
submission to jurisdiction by the defendant is in many ways better
than a judgment founded
on an attachment where the defendant has not
appeared and contested the suit. Such a judgment binds only the
property attached and
has no extra-territorial force and obligation
(see the passage from Story,
Conflict of Laws,
8
th
ed para 549, approved by De Villiers C J in
Acutt Blaine & Co
v Colonial Marine Assurance Co
(1882) 1 SC 402
at 406, which I
quoted in
Blue Continent Products (Pty) Ltd v Foroya Banki PF
1993(4) SA 563(C) at 570 C-E). On the other hand a judgment
based on a voluntary submission to jurisdiction is not only
internationally
enforceable but binds the whole property of the
judgment debtor: it is accordingly clearly not ‘a judgment void of
result’.
[26]
It follows that the reason that it is
necessary for a
peregrinus’
property to be attached before
action can be instituted against him does not apply where there has
been a voluntary submission and
in such a case there is no ‘right’
to attachment as was argued by Mr
Horwitz.
. This is so
whether the submission was unilateral or fell into either of the two
categories referred to by Voet in the passage cited
above. In other
words, the reason that Wunsh J was correct in the
American Flag
case in saying that there is no difference in principle between
bilateral and unilateral submissions, is the fact that both types
of
submission render a judgment given on the strength thereof
internationally enforceable.
[27]
It follows that Mr
Horwitz’s
main
contention must be rejected.
[28]
I turn now to his alternative argument,
viz
that the submission in this matter was of no avail because it was
given after the proceedings for attachment had commenced and indeed
after the attachment order had been granted.
[29]
In
Elscint (Pty) Ltd and Another v Mobile
Medical Scanners (Pty) Ltd, supra,
at 557 E Goldstone J said:
‘(W)here such an attachment has taken place, there is no basis for
denying the
incola
any benefit conferred thereby merely
because the
peregrinus, ex post facto
and unilaterally submits
to the jurisdiction of the Court:
Bedeaux v McChesney
[1939
WLD 128].’
This dictum and the decision on which it was based,
Bedeaux’s
case, were approved in the
Blue Continent
case.
There are other decisions, such as the
Small Business Development
Corporation
case,
supra,
and
Ghomezi-Bozorg v Yousefi,
supra,
where it has been suggested that even a submission given
after the defendant’s property has been attached may be sufficient
to lead
to the release of the property. We are not called upon in
this case to decide whether a submission given after the attachment
has
taken place will be too late and no arguments on the point were
addressed to us.
[30]
We are concerned, it will be recalled, with
a submission given after the order for attachment was given but
before it was put into
effect. In my view it is not too late for a
submission to jurisdiction to be given before the attachment is put
into effect. The
purpose of the attachment, as has been seen, is to
enable the court to give an effective judgment. If the respondent in
ignorance
of the order had transferred his ownership of the property
sought to be attached to another person before the attachment was
carried
out, the order for attachment would clearly have to be set
aside (because no effective judgment could have been given thereafter
against the respondent because the goods attached would no longer
have been his). Conversely, where the respondent had submitted
to
the jurisdiction before the attachment took place, an effective
judgment could thereafter have been given in the main case and
the
attachment would not have been necessary in order to achieve this.
[31]
It has not been suggested before us that the
submission was not a voluntary one and that any judgment given on the
strength thereof
would not be recognised internationally, in which
event other considerations might well apply (cf
the
Blue
Continent
case, supra, at 574 F-G).
[32]
In the circumstances I am satisfied that the
appeal must fail. The following order is made:
‘The appeal is dismissed with costs, including those
occasioned by the employment of two counsel.’
.......................
IG FARLAM
JUDGE OF APPEAL
CONCURRING:
NIENABER JA
NAVSA JA
MTHIYANE JA
LEWIS AJA