THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 223/03
In the matter between:
FAROCEAN MARINE (PTY) LTD Appellant
and
MALACCA HOLDINGS LIMITED First Respondent
EARL ROMANS Second Respondent
_____________________________________________________
Coram: MARAIS, SCOTT, FARLAM, CLOETE JJA et
PATEL AJA
Date of hearing: 6 MAY 2004
Date of delivery: 28 MAY 2004
Summary: Attachment to found or c onfirm jurisdiction – nature of
prima facie case required against defenda nt in the alternative – joinder
of further defendant in the alternat ive – section 5(1) of Act 105 of 1983
permitting such a joinder – discretion of court – order in para 19.
_____________________________________________________
JUDGMENT
_____________________________________________________
SCOTT JA/…
2
SCOTT JA:
[1] The appellant (‘Farocean’) carries on business as yacht and
shipbuilders in Duncan Road, Table Bay Harbour, Cape Town.
The respondents are both peregrini. The first respondent, Malacca
Holdings Limited (‘Malacca’), is a company incorporated according
to the laws of the Cayman Isla nds. Its sole sha reholder is the
second respondent, Mr Earl Romans , a citizen and resident of the
United States of America. On 4 November 20 02 Farocean sought
and obtained ex parte an order in the High Court, Cape Town,
directing that the motor yacht Summit One (and various items of
equipment removed from the vess el) be attached to found or
confirm the jurisdiction of the court in an action Farocean proposes
instituting against the respondents as alternative defendants. An
order was also granted in terms of s 5(1) of the Admiralty
Jurisdiction Regulation Act 105 of 1983 (‘the Act’) joining the
respondents as defendants in the proposed action ‘although one or
other one of them might not ot herwise be amenable to the
jurisdiction of [the] … court’. A rule nisi was issued and served on
the respondents’ Cape Town at torneys and on Morgan Olsen &
Olsen LLP, attorneys of Fort Lauderdale, Florida. The confirmation
of the rule was opposed, initially only by Romans, but later also by
Malacca. The matter came before Davis J who discharged the rule
3
and dismissed the application with costs. The judgment is reported
sub nom MV Summit One Farocean Marine (Pty) Ltd v Malacca
Holdings Ltd and another 2003 (6) SA 94 (C). The present appeal
is with the leave of the court a quo.
[2] In order to understand the issu es and the context in which
they arise it is necessary to set out as briefly as the circumstances
permit the main allegations made in founding papers, the
answering affidavits and the replyi ng affidavits. Farocean’s cause
of action against the re spondents was founded upon an
agreement, the terms of which were recorded in a letter dated 26
March 2001 addressed by Mr Jendo Ocenasek on behalf of
Farocean to Romans. Ocenasek, wh o is the managing director of
Farocean, had previously travelled to Malaysia together with Mr
Frederick Farmer, Farocean’s technical director, to advise Romans
on the feasibility of purc hasing and refurbishing the Summit One,
then named Sipadan Princess. Subsequently the vessel sailed to
Cape Town where it was removed fr om the water and transported
to Farocean’s shipyard. Notw ithstanding the absence of any
‘formal contract’, Farocean commenced stripping the vessel
preparatory to its later refurbishment. It was at this stage that the
letter of 26 March 2001 was addressed to Romans. It reads in part:
4
‘Until a formal contract is draw n up and signed by both Earl Romans
and a Representative of Farocean Mari ne, this letter, will serve as an
abridged interim contract for the rebuild /refit of the ve ssel “Summit One”,
presently in the shipyard of Farocean Marine.
Having received verbal instructions from Mr Earl Romans (the Owner)
to remove the vessel from the water and to transport the vessel to Farocean
Marine’s shipyard, and to commence st ripping the vessel for refurbishment
once the vessel was located in Farocean Marine’s buildings, Farocean Marine
has started this work, along with the remo val of various items, ie propellers,
shafts, interior, rudders etc and will invo ice the owner only after a sum of
R700 000.00 has been reached. (See item “Payments” later.)
The owner has indicated he prefers t he contract to be done in local
currency ie S A Rands, to be convert ed to U S Dollars at an exchange rate
current on the day of invoice.’
(The letter proceeds to set out det ails of rates for the repair and
refitting of the vessel.) Accordi ng to Ocenasek these terms were
accepted in a subsequent tele phone conversation and confirmed
by the issuing of instructions fr om time to time in the form of
drawings and specifications by Romans’s architect, Mr Douglas
Sharp. This much was common cause.
[3] Once work to the value of R700 000.00 had been completed
Farocean began invoicing Romans. A dispute arose and the latter
failed to pay. On 15 November 2001 Farocean caused the vessel
5
to be arrested in pursuance of an action in rem . But the dispute
was resolved and the outstanding amount was paid to Farocean
which thereafter continued workin g on the vessel. According to
Ocenasek, Romans once again fail ed to pay when invoiced and in
July 2002 the vessel was again arrested. In September 2002, and
in response to Farocean’s particulars of claim, a plea was filed in
which it was alleged that the ve ssel was owned by Malacca, which
at all material times had been represented by Romans.
[4] Ocenasek contended that until receipt of the plea,
Farocean’s representatives had always believed that Romans had
contracted in his personal capa city and that he was the owner of
the vessel. He said this im pression had been gained from
correspondence with Romans and in particular from an application
for registration with the South African Sailing Association signed by
Romans on 19 December 2000 in which he had stated that he was
the owner. (It appears that the object of the application for
registration was to enable the vess el to be insured for the voyage
from Malaysia to Cape Town; on ce she was removed from the
water and taken to Farocean’s shipyard, the registration was
cancelled.) Ocenasek explaine d that he subsequently obtained
further documents which corroborated the allegation made in the
6
plea that Malacca, and not Romans , was the owner of the vessel.
These included a ‘Bill of Sale ’ dated 13 November 2000 and
signed by the seller (but not th e buyer) reflecting the sale to
Malacca of ‘sixty four sixty fourt hs shares’ in the vessel; a letter
dated 16 November 2000 addressed by Messrs Morgan, Olsen &
Olsen LLP (Romans’s Fort Lauderdale attorneys) to the sellers of
the vessel advising that the ‘buyer’s agent [Mr Douglas
McLoughlin] will be the authorized representative of the buying
company (Malacca Holdings Limite d), who will receive the original
documents, execute a Protocol De livery of the Vessel, and accept
delivery of the vessel for [t he] buyer’; and a letter dated 20
November 2000 similarly address ed by Messrs Morgan Olsen &
Olsen LLP to the sellers confir ming that they had received the
money due to the sellers and re iterating that the buyer was
Malacca.
[5] On behalf of Farocean, Ocena sek contended that in the
circumstances there was ‘confusion’ as to the identity of the owner
of the vessel and the party wi th whom Farocea n had contracted.
He argued that the ow ner and party to th e contract was either
Romans or Malacca and that Faroce an was accordingly entitled to
the order it sought. Upon th e granting of the order ex parte on 4
7
November 2002 Farocean with drew the second of the in rem
proceedings referred to in para 3 above.
[6] In response to the order and before filing answering affidavits
Romans’s Cape Town attorne ys addressed a letter dated 15
November 2002 to Farocean’ s attorneys ag reeing to the
confirmation of the rule nisi in rel ation to Malacca which, it was
pointed out, was the owner of the vessel. However, Farocean was
not prepared to agree to an order in relation to Malacca only and
insisted that the matter procee d. The main answering affidavit
subsequently filed on behalf of th e respondents was made by their
Cape Town attorney, Ms Fiona Stewart. While denying that
Malacca was liable she reiterated that Malacca did not oppose the
granting of an order against it, be ing the owner of the vessel and
the party against which the claim lay. She confirmed, too, that
Romans had at all times represented Malacca in its dealings with
Farocean. In support of the aver ment that Malacca was the owner,
she filed, in addition to the B ill of Sale previously referred to, a
copy of Malacca’s certificate of incorporation dated 17 November
2000 and a ‘Protocol of Delivery and Acceptance’. The latter
document was signed by both the seller and by McLoughlin on
behalf of Malacca as buyer on 21 November 2000 before a notary
8
public. It recorded that on that da y the vessel was delivered to and
accepted by Malacca in acco rdance with the terms of an
agreement previously concluded. St ewart denied that Farocean’s
representatives had been led to believe that Romans was the
contracting party and the owner of the vessel, although conceding
that McLoughlin and Ocenasek , being laymen, had loosely
referred to Romans as the owner f rom time to time. She insisted
that the decision to have the vessel transferred to Malacca and the
fact that at all subsequent times Romans acted on behalf of
Malacca was well known to Ocenasek . In support of this assertion
she annexed a copy of a draft ‘fi nal contract’ relating to the
refurbishment of the vessel proposed by Farocean in June 2001, ie
more than a year before the filing of the plea to which Ocenasek
refers. The draft, which was sent to Romans’s assistant, Ms Carol
Levy, on 27 June 2000, describes the parties to the agreement as
being Malacca on the one hand and Farocean on the other. A
subsequent draft proposed by Malacca in December 2001 similarly
records Malacca as being the ow ner of the vessel and the party to
the contract. Yet another docum ent annexed to Stewart’s affidavit
was a minute of a site meetin g dated 6 December 2001 relating to
the work on the vessel then in progress and in p ursuance of the
agreement on which Farocean relies . Significantly, it was headed
9
‘Malacca/FOM Meeting’ (FOM presumably being an acronym for
Farocean Marine).
[7] It was not denied that Romans had stated that he was the
owner of the vessel when applying for registration with the South
African Sailing Association. The on ly explanation proffered for this
was that by obtaining registrati on with this association it was
possible to obtain insurance for the vessel without the need to
incur the costs associated with obt aining a class certificate from a
recognised classification society, and that this method of obtaining
insurance had been suggested by Oc enasek himself prior to the
purchase of the vessel. However, no reason was given for
Romans describing himself as the owner.
[8] The allegations contained in Stewart’s affidavit were
confirmed by Romans, McLoughlin, Levy and Mr Walter Morgan of
Morgan Olsen & Olsen LLP, all of whom made confirmatory
affidavits. The latter expressly confirmed that he had acted for
Malacca with regard to its purchase of the vessel in Malaysia.
[9] In his replying affidavit Ocenasek did not challenge the
authenticity of the Protocol of Delivery and Acceptance or any of
the other documents referred to by Stewart in para 6 above.
10
Nonetheless, he persisted in his assertion that Farocean was
uncertain as to whether the vessel was owned by Romans or
Malacca. In response to th e reference to the proposed
refurbishment contract between Malacca and Farocean which the
latter had drafted in June 2001 he drew a distinction between the
interim agreement of 26 March 20 01 and any final agreement that
Farocean may have sought to conclude with Malacca. He
submitted that it was immaterial who the eventual contracting party
might have been as Romans in his personal ca pacity was the
contracting party in terms of the interim agreement upon which
Farocean relied. The necessary impl ication of his submission was,
of course, that the contracting party and the owner of the vessel
may not have been the same person. This possibility was
expressly recognised in the fo llowing passage which appeared
later in his affidavit.
‘In any event, even if it were to be found in due course that [Romans] was not
the owner of the vessel it was indeed with [Romans] acting in his personal
capacity that the interim agreement of 26 March 2001 was concluded.’
In the light no doubt of thes e statements Malacca, which had
previously not opposed the appl ication, changed its stance and
filed a notice of opposition.
11
[10] In terms of s 3(2) of the Act an action in personam may be
instituted against a peregrine w ho has not cons ented to the
jurisdiction of the court only if his property within the court’s area of
jurisdiction has been attached to found or confirm the jurisdiction of
the court, hence the proceedings in the court below. An applicant
seeking such an attachment must show (a) that he has a prima
facie case against the responde nt (as to the requirements for
which, see eg Hülse-Reutter and others v Gödde 2001 (4) SA
1336 (SCA) at 1343E-J (pa ra 12)) and (b) that the respondent is
the owner of the property sough t to be attached. The latter
requirement is to be establishe d on a balance of probabilities.
(Lendalease Finance (Pty) Limited v Corporacion De Mercadeo
Aqricola and others 1976 (4) SA 464 (A) at 489B-D.)
[11] If an applicant can show on a balance of probabilities that
property is owned by one or other of two defendants and that he
has a prima facie case against whichever one is found to be the
owner, a court might pos sibly be justified in granting an order for
the attachment of the property. In either event, the attachment
would be effective. In its fo unding affidavit Farocean appears to
have set out to establish that this was true of the present case; ie
that the vessel was owned by eith er Romans or Malacca and that
12
whoever was the owner was the debt or. However, in response no
doubt to the allegations contained in the answering affidavits,
Farocean found itself obliged in its reply to concede, and rightly so,
that the debtor may not be t he owner of the vessel. The
consequence of this concession was to preclude the attachment of
the vessel on the premise that it was unnecessary to establish
which of the two was the owner. T he reason is that to do so could
result in the attachment of property not owned by the debtor which,
for the purpose of founding jurisdicti on, ‘would be futile and of no
effect’. (See the Lendalease case loc cit.)
[12] Counsel for the appellant so ught to justify the attachment
confirming jurisdiction over bo th respondents on various grounds
in the alternative. The ground on which they ultimately relied in this
court was shortly this: On the papers before the court it was
established on a balanc e of probabilities that Malacca was the
owner of the vessel and that the appellant had a prima facie case
in the alternative against both Malacca and Romans; accordingly,
Farocean was entitled to an order f or the attachment of the vessel
to confirm jurisdiction over Mala cca in respect of Farocean’s prima
facie case against that company and, by reason of the appellant’s
claim against Romans in the alternat ive, it ought to be permitted to
13
join Romans as an alternative def endant in terms of s 5(1) of the
Act.
Section 5(1) reads as follows:
‘A court may in the exerci se of its admiralty jurisd iction permit the joinder in
proceedings in terms of this Act of any person against whom any party to
those proceedings has a claim, whether jointly with, or separately from, any
party to those proceedings, or from w hom any party to those proceedings is
entitled to claim a contribution or an i ndemnification, or in respect of whom
any question or issue in the action is substantially the same as a question or
issue which has arisen or will arise between the party and the person to be
joined and which should be determined in such a manner as to bind that
person, whether or not t he claim against the latter is a maritime claim and
notwithstanding the fact that he is not otherwise amenable to the jurisdiction
of the court, whether by reason of the absence of a ttachment of his property
or otherwise.’
I shall refer to this section in more detail later. In the meantime it is
sufficient to point out that in t erms of s 1(2)(a)(ii) of the Act an
admiralty action ‘shall for any relevant purpose commence by the
making of an application for the attachment of property to found
jurisdiction’. (I do not think there is any significance in the omission
of a reference to an attachment to confirm jurisdiction.) It follows
that the application for the attach ment of the vessel in pursuance
14
of the appellant’s claim against Malacca constitutes ‘proceedings
in terms of this Act’ within the meaning of s 5(1).
[13] Counsel for the respondent c ontended that it was not open to
Farocean to seek an attachment so lely in respect of its claim
against Malacca coupled with a jo inder of Romans as outlined
above. It is convenient to deal in turn with each of the grounds
relied upon by counsel for this contention.
[14] First, while conceding that it was established on a balance of
probabilities that Malacca was t he owner of the vessel, he argued
that this did not avail Faroc ean as the latter had contended that
Romans was the owner. I do not think there is merit in this
submission. As previously obser ved, Farocean alleged in its
founding papers that it was uncerta in which of the two was the
owner and pointed to correspondenc e in which Romans had been
referred to as the owner and an instance where Romans had
described himself as the owner. But this cannot preclude Farocean
from relying on the averments in the answering affidavit that
Malacca is the owner, particularl y when supported by the affidavit
of the attorney who acted on beh alf of Malacca when purchasing
and accepting delivery of the vessel as well as by a copy of the
15
‘Protocol of Delivery and Acceptance’ executed in Malaysia on 21
November 2000 before a notary public.
[15] Second, counsel argued that Farocean had not only failed to
make out a prima facie case a gainst Malacca in its founding
papers but that Ocenasek in his replying affidavit had ‘insisted’ that
Farocean’s claim lay against Romans and not Malacca.
Accordingly, so the argument went, notwithstanding the
respondents’ assertion that it wa s Malacca and not Romans that
had contracted with Farocean, t he latter was precluded from now
contending that it had made ou t a prima facie case against
Malacca. Once again, I do not think counsel’s contention is correct.
In his founding affidavit Ocenas ek set out the terms of the
agreement on which Farocean relied and the grounds for his belief
that the other contracting pa rty was Romans. However, he
annexed to his affidavit the plea filed in the in rem proceedings in
which it was alleged that Romans had at all times acted as agent
for Malacca. In view of the cont ents of the plea, Ocenasek took up
the attitude that there was uncertainty as to the identity of the party
against whom the appellant’s claim lay and that it was for this
reason that the appellant sought to proceed against Malacca and
Romans in the alternative. It is unquestionably so that an applicant
16
is generally speaking obliged to addu ce evidence to establish a
prima facie case against the party whose property it is sought to be
attached and that a mere assertion that it has such a case is not
enough. But this requirement must as a matter of common sense
be relaxed in appropriate circum stances. Such a relaxation was
permitted in MT Tigr: Owners of the MT Tigr and another v
Transnet Ltd t/a Portnet (B ouygues Offshore SA and another
intervening) 1998 (3) SA 861 (SCA). T here a defendant sought to
attach the property of two peregrini from whom it claimed a
contribution or indemnity as join t wrongdoers with the defendant in
the event of the defendant being fo und liable. The liability of the
peregrini to the defendant was depen dent on the liability of the
defendant to the plaintiff, whic h the defendant denied. In order to
establish a prima facie case in so far as this element of the
defendant’s claim was concerned, it was held sufficient for the
defendant to rely on the allegati ons contained in the plaintiff’s
particulars of claim to the effect that the defendant was liable to the
plaintiff. Although the partic ular circumstances in the Tigr were
somewhat different from those of the present case, in both cases
the prima facie case sought to be established and other averments
made by the applicant were mut ually destructive. In the present
case Farocean seeks to sue on a contract and is unsure whether
17
the other contracting party acted as principal or agent. In these
circumstances the reference to th e allegations contained in the
plea filed in the earlier proceedings is, in my view, sufficient to
establish a prima facie case a gainst Malacca as one of two
alternative defendants. It is of course somewhat anomalous for the
respondents to contend that Faroce an has failed to make out a
prima facie case against Malacca when they themselves contend
that Malacca, and not Romans, wa s the party to the contract on
which the appellant relies.
[16] It is so that in his replying affidavit Ocenasek contended that
Romans contracted as principal a nd not as agent for Malacca. But
this was in response to the a llegation to the contrary in the
answering affidavit. It was at a ll times Farocean’s case that the
other contracting party was either Ro mans or Malacca and that it
wished to proceed against them bot h as alternative defendants. I
do not read the replying affidavit as constituting an abandonment
of its claim against Malacca in th e alternative. It fo llows that in my
view Farocean was entitled to an o rder for the attachment of the
vessel to found or confirm jurisd iction in respect of Farocean’s
claim against Malacca.
18
[17] The next question is wheth er Farocean ought to have been
permitted to join Romans as an alternative defendant in the
proceedings against Malacca. Once it is acknowledged that
Malacca is the owner of the vessel it follows that Romans would
not be amenable to the jurisdiction of the court a quo in the
absence of an order in terms of s 5(1) of the Act (quoted in para 12
above). In terms of Admiralty Ru le 24 the application of Uniform
Rule 10 dealing with joinder is not excluded in admiralty
proceedings. Joinder under the la tter rule does not require the
leave of the court, but the rule is inapplicable where it is sought to
join a person over whom the court has no jurisdiction. It follows
that if the joinder of Romans is to be permitted it must be in terms
of s 5(1). Two questions arise. T he first is whether the section
permits the joinder of a defendant in the alternative. Merely
because no express reference is made to a defendant in the
alternative does not mean that t he joinder of such a party is
precluded. The language used, I think, is clearly wide enough to
include such a party. The section permits, for example, the joinder
of a person ‘in respect of whom any question or issue in the action
is substantially the same as a question or issue which has arisen
or will arise between the party [see king the joinder] and the person
to be joined ….’ There is furt hermore nothing in the section to
19
indicate an intention to precl ude the joinder of a person on the
ground that to do so may result in a party over whom the court
would not otherwise have had juri sdiction possibly being found to
be the only party liable. Given the wide language used, such a
result could hardly have been beyond the contemplation of the
legislature. In the circumst ances, I can see no reason for
construing s 5(1) so as not to include the jo inder of an alternative
defendant. Admittedly, the powers of joinder in terms of the section
so construed are far-reaching. But the object of the legislature was
clearly to permit all the parties to a dispute to be joined in an
action. The absence of such a p rovision could well result in the
undesirable situation of courts in different countries having to
adjudicate on the same or subst antially the same issues arising
out of the same incident or set of facts.
[18] The second question is w hether the joinder of Romans is
justified in the circumstances of the present case. In my view the
word ‘may’ in s 5(1) is to be unde rstood in its permissive sense
and not in the sense of servi ng what has been described as a
‘predictive function’. (Minister of Environmental Affairs and Tourism
and others v Pepper Bay Fishing (Pty) Ltd 2004 (1) SA 308 (SCA)
at 322B-C.) This much, I think, is apparent from the use of the
20
word ‘permit’ in the phrase ‘the court may … permit’. The court a
quo accordingly had a discretion to permit or refuse the joinder of
Romans. It did not exercise that discretion and this court is now
free to do so. It is common c ause that the party with whom
Farocean contracted was Romans. F arocean’s case is that it is
uncertain whether Romans acted as a principal or as agent for
Malacca. It therefore wishes to have both before court. Romans is
unquestionably the alter ego of Malacca which is the defendant in
the ‘proceedings’ within the m eaning of s 5(1) and Romans is
therefore unlikely to be prejudi ced by the joinder. In the
circumstances, it is appropriate, in my view, to permit the joinder of
Romans as an alternative defendant in the proceedings.
[19] The following order is made:
(A) The appeal is upheld with costs, including the costs
occasioned by the employment of two counsel;
(B) The order of the court a quo is set aside and replaced
by the following:
‘1. The Sheriff of this court is directed and authorized to
attach the MY Summit One (‘the vessel’) (and the
equipment and materials described more fully in
annexures ‘U’ and ‘V’ to the founding affidavit of
21
Johann Willem Ocenasek filed in support of this
application) to confirm the jurisdiction of this court
in an action to be instituted by the applicant against
the first respondent for :
1.1 payment of the amount of US$789 072.10;
1.2 interest thereon at t he South African prime
rate a tempore morae until the date of final
payment;
1.3 payment of the amount of R477 139.73;
1.4 interest thereon at the legal rate from 8 October
2002 (being the date of the cancellation of the
agreement) until the date of final payment;
1.5 payment of the amount of R1 500.00 per day
from 5 July 2002 until the date of removal of the
vessel from the premises of the applicant;
1.6 interest on the aforesaid amount of R1 500.00
per day at the South African prime rate a
tempore morae until the date of final payment;
1.7 payment of the amount of R700 000.00
(alternatively of the amount of US$86 978,46);
1.8 interest thereon at the legal rate calculated from
8 October 2002 until the date of payment;
22
1.9 alternative relief;
1.10 costs of suit.
2. The second respondent is jo ined as a defendant in the
alternative in the action in terms of section 5(1) of the
Admiralty Jurisdiction Regulation Act 105 of 1983.
3. Service of the applicant’s p articulars of claim shall
be effected:
3.1 upon Ms F Stewart at the offices of Fairbridge
Arderne & Lawton Inc, 16th Floor, Main Tower,
Standard Bank Centre, Heerengracht, Cape
Town; and
3.2 by facsimile at tele fax number 0954-4633570 or
such other telefax number as is confirmed by
affidavit to be that of Morgan Olsen & Olsen LLP,
attorneys-at-law of 315 NE Third Avenue, Suite
200, Fort Lauderdale, Florida 33301, USA, for
attention Walter L Morgan.
4. Costs of this applicat ion, including the costs
occasioned by the employment of two counsel,
shall be borne by firs t and second respondents
jointly and severally , the one paying the other to
be absolved.’
23
C. The appellant is directed to serve its particulars of
claim upon the respondents within 30 days of this
order.
D G SCOTT
JUDGE OF APPEAL
CONCUR:
MARAIS JA
FARLAM JA
CLOETE JA
PATEL AJA