IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO: 150/2003
In the matter between:
MEIHUIZEN FREIGHT (PTY) LTD Appellant
and
TRANSPORTES MARITIMOS DE PORTUGAL LDA First Respondent
MAVIGA UK LIMITED Second Respondent
THE SHERIFF OF THE HIGH COURT, CAPE TOWN Third Respondent
NEDCOR BANK LTD Fourth Respondent
___________________________________________________________________________
Coram: MARAIS, SCOTT, FARLAM JJA, JONES et PONNAN AJJA
Heard: 10 MAY 2004
Delivered: 31 MAY 2004
Attachment of money in bank account of thir d party to found or confirm jurisdiction in
maritime claim against party on whose behalf money received by third party as agent to
receive payment – not permissible – only righ t to receive payment from third party
attachable – s 3 (4) (b) and s 3 (5) (d) of Ad miralty Jurisdiction Regulation Act, No 105
of 1983. Order in para 27 of judgment.
___________________________________________________________________________
J U D G M E N T
___________________________________________________________________________
MARAIS JA/
2
MARAIS JA:
[1] The appellant is Meihuizen Freight (Pty) Ltd (‘Meihuizen’). It acted as the
ship and cargo agent in South A frica for Transportes Maritimos De
Portugal Lda (‘TMP’). Meihuizen is a South African company with its principal
place of business in Cape Town. TMP is a Portuguese company based in Lisbon.
It is the owner of the vessel mv ‘TMP Sagittarius’ (the ‘vessel’).
[2] Maviga UK Limited (‘Maviga’) is an English company which carries on
business as a commodity trader in Maidstone, Kent, England. Maviga contracted
in Cape Town with TMP for the carriage of its cargo of South African white
maize from Durban, South Africa, to Lo bito, Angola. The vessel departed from
Durban to Lobito on 16 July 2002. On 17 July 2002 she developed a severe list.
She was refused entry to East London as the port was closed. During the night
the vessel lost power and drifted onto the rocks just south of East London in the
vicinity of Leach Bay.
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[3] By 26 July 2002 the vessel had broke n in two and the cargo had been
saturated with water to such an extent th at it was considered a total loss. Maviga
contends that the loss of the cargo was traceable to the unseaworthy condition of
the vessel and that TMP is liable in personam to it for the value of the cargo by
reason of its breach of the contract of carriage to which the Hague-Visby Rules
were applicable. Such a claim is a mar itime claim within the meaning of the
definition in s 1 of the Ad miralty Jurisdiction Regulati on Act, No 105 of 1983
(‘the Act’).
[4] On 26 July 2002 Maviga applied ex parte to Nel J in the Cape High Court
(exercising its admiralty jurisdiction) for various orders against TMP and
Meihuizen. The object of the application was twofold: first, to attach, in terms of
s 3 (2) (b) of the Act, property within the court’s area of jurisdiction owned by
TMP in order to found jurisdicti on in the Cape Court in the action in personam
to be instituted against TMP; secondly, to arrest, in terms of s 3 (4) (b) read with
4
s 3 (5) (d) of the Act, that property for its claim against TMP, alternatively, to
arrest it in terms of s 5 (3 ) (a) of the Act to provide security for the same claim
in the event of the Cape C ourt declining to exercise jurisdiction and Maviga
having to institute proceedings in Lisbon, Portugal.
[5] Counsel for Maviga correctly conceded that an arrest in terms of s 3 (4)
(b) read with s 3 (5) (d) of the Act wa s not possible because that which Maviga
sought to arrest was not property ‘in re spect of which the cl aim lies’. The claim
lay in respect of cargo and not freight. The property of TMP which Maviga
sought to attach in terms of s 3 (2) (b) was described in the application as
‘freight’ or ‘freight monies’. The fate of the application had to be determined by
the Roman-Dutch law.1 Ironically, the freight sought to be attached and arrested
was payable to TMP by Maviga itself and it was contractually obliged to pay it
notwithstanding the loss of the cargo. Th e contract of carriage required Maviga
1 Shipping Corporation of India Ltd v Evdomon Corporation and Another 1994 (1) SA 550 (A) at 562H.
5
to pay the freight to a designated Me ihuizen bank account as Meihuizen was
TMP’s agent to receive payment on its behalf. Maviga’s shipping agent did so.
[6] At the date of the ex parte application Maviga was unsure whether the
freight paid by its shipping agent had act ually been received in the relevant
Meihuizen bank account at Nedbank. In its founding affidavit it said through its
attorney that if the money had not al ready been received, its receipt was
imminent. It added that Meihuizen ha d confirmed that the money had been
received but that, in its (Maviga’s) vi ew, it remained possible that the money
had ‘not yet been deposited into (Mei huizen’s) account’. However, it submitted
that the depositing of that money in to Meihuizen’s Nedbank account was
‘inevitable’.
[7] What was then said is of importan ce because of the light it throws upon
what the property was that Maviga s ought to attach and arrest. I quote the
paragraphs which are relevant.
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‘10.14 It is for this reason that [Maviga] se eks an order that [Meihuizen] disclose to
the sheriff the actual amounts due to [TMP] that are held in its account, and to provide the
dates upon which any further amount, and in particular the freight moneys paid by [Maviga’s]
agents, will be paid and are paid into that account.
10.15 It is respectfully submitted that in the circumstances the inevitable payment
into [Meihuizen’s] bank account should be immediat ely attached and arrested in terms of the
order granted.
11.1 [TMP] is not a company of which I have any personal knowledge, but I
understand from Mr Pheiffer that [Maviga] has shipped cargo to Angola in December 2001
and there must be a reasonable prospect that ot her freight monies due to [TMP] are held in
[TMP’s] agent’s account.
12.2 I respectfully submit that there is no prejudice to [Meihuizen] as the only
moneys which [Maviga] seeks to attach are those freight moneys of [TMP].’
[8] The founding affidavit culminat ed in the following paragraph:
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‘1.4 It is respectfully submitted that [Mavig a] has made out sufficient grounds to be
entitled to attach [TMP’s] freight moneys, held in [Meihuizen’s] account, and that it has
established that it has:
(a) a prima facie case against [TMP];
(b) that [TMP] is a peregrini (sic) of the above Honourable Court;
(c) that [TMP] has property which it owns, or in which it has an interest, within
the jurisdiction of the above Honourable Court.’
[9] The order sought was granted by Nel J. I recite only such parts of it as
have a bearing on the issues to be resolved.
‘It is ordered:
1. . . .
2. That the sheriff of this Honourable Court be and is hereby authoris ed and directed to
attach and arrest [TMP’s] right, title and inte rest in and to the freight moneys held by
[Meihuizen’s] bank, Nedcor Bank Limited, at the br anch situated at 85 St George’s Street
8
Mall, Cape Town, which freight moneys are held for and on behalf of [TMP], as identified in
the attached document ‘First National Bank’ bank details, marked B.
3. That [Meihuizen] is directed to advise the sh eriff, at the time of service of this order
upon it, of any amounts which are currently due to [TMP] in the said bank account and the
account number, and of all amounts which it an ticipates will become pa yable by it in the
future to [TMP], and the date upon which such amounts will become payable.
4. [Meihuizen] shall advise the sheriff immedi ately if freight monies are received on
behalf of [TMP] and the sheriff shall then fort hwith arrest or attach such freight monies.
[Meihuizen] is interdicted from taking any step s to transfer the freight money from its
account, unless a release warrant therefore has been issued, or by further order of Court.
5. That the said attachment is to found and confirm this Court’s jurisdiction over [TMP]
for claims which [Maviga] intends bringing against [TMP] in this Honourable Court.
[Maviga] is granted leave to sue [TMP] by way of edictal citation, a copy of which is attached
to this order marked “A”; the said edict being served by courier on [TMP], in English only, at
its business address, Avienda 24 de Julho 126- 2 Lisbon Estremadura, Portugal, [TMP] being
9
given THIRTY (30) days from the date of serv ice within which to enter an appearance to
defend.
6. That the arrest stand as security for [Mav iga’s] claim against [TMP] to be brought in
in Lisbon, Portugal for damages suffered by [Maviga] as a consequence of breaches by [TMP]
of the terms and conditions of a contract for the carriage of a cargo of maize from Durban,
South Africa to Lobito, Angola, which cargo ha s been lost following the wreck of [TMP’s]
ship, the mv “TMP SAGITTARIUS”, together with interest and costs as follows:
(a) Euro 806 130.00;
(b) interest on the said amount at 15,5% per annum for 3 years;
(c) costs of R150 000.00
7. . . .
8. That any such security shall be held pending the final outcome of the proceedings
referred to in paragraphs 5 and 6 above.’
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[10] The order evoked no reaction from TMP but Meihuizen launched
proceedings in which it sought to have cer tain of the orders made by Nel J set
aside and to have revers ed certain steps which Ne dbank had taken upon being
served with the order. The steps were these. The freight payable (US $ 124
020.00) was received on 17 July 2002 from Maviga’s shipping agent by
Meihuizen when it was paid into a se parate dollar account which Meihuizen
maintained at Nedbank. Both that acco unt and Meihuizen’s ordinary business
bank account were in credit before the receipt of the payment. Meihuizen
converted the dollars into rands and tr ansferred the money to its ordinary
business bank account. On 29 July 2002 Nedbank transferred from Meihuizen’s
account R1 258 803.00 (the rand equivalent on 26 Ju ly 2002 of US $ 124
020.00) to an account opened for, and under the control of, the sheriff. It did so
without Meihuizen’s consent believing that the order of Nel J empowered it to
do so.
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[11] Meihuizen’s application came be fore Davis J. The relief claimed was
‘2. That the arrest order for the arrest and/or attachment obtained (and to the extent that it
has been effected) by (Maviga) in this applicati on . . . in terms of, and the relief as provided
for in, paragraph 4 of the said order be discharged and/or set aside;
3. that (Maviga) and/or the sh eriff . . . and/or (Nedcor Bank) be authorised and directed
to take all such steps as may be necessary, forthwith to:
3.1 release the monies (in th e amount of R1 258 803 . . .) to the extent that it ( sic)
might have been arrested and/or a ttached in and/or transferred from
(Meihuizen’s) account held with Nedc or bank Ltd, Cape Town with number
100935339 (‘the account’) by or at the behe st or with the co-operation of the
sheriff and/or (Maviga) and/or Ne dbank on or about 29 July 2002, from arrest
and/or attachment;
3.2 restore the monies to the account;
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3.3 alternatively to the foregoing and only in the event of th e . . . court finding
that moneys in Meihuizens’s account equal to the amount found to be due by (Meihuizen) to
(TMP) (‘the credit’) as at the time of service of the order on (Meihuizen), and/or transfer as
set out in paragraph 3.1 above, that the diffe rence between the amount of the moneys so
transferred and the amount of the credit, be released and restored as set out in paragraphs 3.1
and 3.3 above.’
[12] In the result Davis J made the following order:
‘1 The arrest and attachment obtained by (M aviga) on 26 July 2002 in terms of and the
relief as provided in paragraph 4 of that or der is confirmed subject to the provisions of
paragraph 2 of this order.
2. (Maviga) and/or the sheriff . . . and/or (Nedcor Bank) are authorised and directed.
2.1 to take all such steps as may be n ecessary, forthwith to release the amount of
R508 745 from Meihuizen’s account held with Nedcor Limited Cape Town
with number 1009365339 by or at the behest of or with the co-operation of the
13
sheriff and/or (Maviga) and/or (Nedcor Bank) on or about 29 July 2002
from arrest and/or attachment;
3. There is no order as to costs.’
[13] The reason why Meihuizen was gran ted the partial relief provided for in
paragraph 2 of the order of Davis J wa s because the learned judge held that
Meihuizen was entitled to pay itself from the money received on TMP’s behalf a
sum of R508 745 which was owed to it by TMP. The reason why no order as to
costs was made was because both Me ihuizen and Maviga had achieved a
substantial measure of success in the application: Meihuizen in having R508 745
restored to it and Maviga in resistin g Meihuizen’s claim to set aside the
attachment of all the money received by it on TMP’s behalf. Neither of these
orders was the subject of any cross-ap peal by Maviga or any of the other
respondents.
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[14] At the hearing of the appeal it appeared that there might have been
some misapprehension on the part of both the court a quo and counsel as to
precisely what aspects of the order of Ne l J were being attacked. The answer to
that question must be found in Meihuizen’s application and in the submissions
made on its behalf in the court a quo.
[15] Before Meihuizen’s application was launched there was a flurry of
correspondence between the attorney s acting for Meihuizen and Maviga
respectively. The correspondence formed part of the application. It emerges
reasonably clearly from the correspondence alone, and the affidavits
accompanying the application place it be yond doubt, that Meihuizen had no axe
to grind with the order in so far as it purported to found jurisdiction in the claim
which Maviga wished to institute against TMP. That was not really its concern.
However, to the extent that its own in terests were adversely affected by the
15
particular manner in which Maviga and the court s ought to found jurisdiction,
the order was of concern to Meihuizen.
[16] The effect of the order was to disable Meihuizen from utilising its
own bank accounts as it saw fit and to prevent it from drawing upon the
funds standing to its credit whenever the credit balance had been reduced
to R1 258 803.00. To make matters worse for Meihuizen, the bank, acting on the
advice of its lawyers and with at least the blessing, if not the connivance, of
Maviga, had transferred R1 255 803.00 fr om Meihuizen’s account and by doing
so had imperilled Meihuizen’s ability to tr ade within the limits of its overdraft
facility at the bank and to meet its budgetary obligations.
[17] I have no doubt that Maviga’s application targeted the money which
Meihuizen had received from Maviga as freight payable to TMP and that the
order granted by Nel J resulted in that targ et being hit. It is so that there is
16
reference in the papers and in para 1 of the order of Nel J to TMP’s ‘right, title
and interest, in and to the freight mone ys’ and that, if these words had stood
alone, they would have meant TMP’s cont ractual right against Maviga to be
paid freight. But they cannot be read in isolation. They re late to the money
already paid by Maviga to TMP and he ld by Meihuizen in its bank account. The
payment to Meihuizen which was TMP’s authorised agent to receive payment
plainly discharged Maviga’s debt to TMP and there was no longer freight in that
amount payable by Maviga to TMP. That is obviously why no attempt was made
to attach that debt; it had been discharged.
[18] Instead, Maviga sought to attach th e money so paid as if it were TMP’s
money. It did not appreciate that, on ce paid to Meihuizen, the money was no
longer freight payable by it to TMP but si mply money owed by Meihuizen to its
principal, TMP. As a fungible, it had no identity separate and distinct from that
17
of any other money belonging to Meihui zen. It was not sequestered in any
way, from Meihuizen’s other money. Th e historical origin (freight) of the
payment would serve of course to identify the source of and the causa for the
payment into Meihuizen’s account but it would not attach, limpet like, as an
identifying label to the mone y paid over to Meihuizen so as to enable it to be
isolated from any other money in its account , and to be attached as if it were a
non-fungible res.2
[19] Paragraphs 3 and 4 of the order gr anted by Nel J confirm that to be so.
Paragraph 3 per se does not require the sheriff to attach the amounts to which it
refers. It only requires Meihuizen to a dvise the sheriff of any amounts due to
TMP in Meihuizen’s bank account a nd of all amounts which will become
payable in the future by Meihuizen to TMP. Paragraph 2 is the part of the order
which required the sheriff to ‘attach and arrest’ the money already in
2 Dantex Investment Holdings v National Explosives 1990 (1) SA 736 (A) at 747C-D; 748A-B; G-J; 749I;
750J-751A:
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Meihuizen’s bank account. Paragraph 4 requi res him to ‘arrest or attach’ any
further money received in future by Meihuizen on behalf of TMP. In both
instances the arrest or attachment was to take place after payment of the money
to Meihuizen. In other words, and for th e reasons given in para [17], it was not
TMP’s right to be paid freight by Maviga which was to be attached or arrested.
Nor was it TMP’s right to be paid by Me ihuizen after freight had been paid by
Maviga to Meihuizen. It was the money so paid to Meihuizen. The
accompanying interdict in para 4 of the order makes that quite clear.
[20] In law the money which had been paid to Meihuizen and deposited in its
bank account did not remain its money. It became the bank’s money and
Meihuizen became vested with no more than a personal right to claim an
equivalent sum from the bank which was pro tanto its debtor. 3 But even if it
were still to be regarded as Meihuizen’s money, there could be no justification
3 Ormerod v Deputy Sheriff, Durban 1965 (4) SA 670 (D) at 673C-H, cited with approval in Burg
Trailers SA (Pty) Ltd v ABSA Bank Ltd 2004 (1) SA 284 (SCA) at 288G-289B.
19
for attaching it to found jurisdiction in a claim against TMP. TMP had no right
to any of the money in Meihuizen’s bank account. The only right it had which
was capable of attachment as property within the jurisdiction of the court was its
personal right to be paid by Meihuizen a sum of money equivalent to the freight
received by Meihuizen on TMP’s behalf. 4 That was an incorporeal right which
had a value and it was therefore plainly ‘property’ within the meaning of s 3 (2)
(b) of the Admiralty Jurisdiction Regula tion Act, No 105 of 1983 (‘the Act’).
That provision authorises the institu tion of a maritime claim by an action in
personam against a person ‘whose propert y within the court’s area of
jurisdiction has been attached . . . to fo und or confirm jurisdiction’. Attachment
of that right would mean of course th at Meihuizen would no longer be able to
discharge its debt to TMP by paying TMP. It could only do so by paying the
debt to the sheriff. But neither the existe nce of that debt nor its attachment or
4 Cf Burg Trailers SA (Pty) Ltd v ABSA Bank Ltd, supra at 288F-G.
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arrest would preclude Meihuizen from us ing the money standing to its credit
in its own bank account as it pleased . Nor would it entitle Maviga to have
sequestered for its benefit an equivalent sum of m oney in Meihuizen’s bank
account. The debt was an unsecured debt due by Meihuizen to TMP. Maviga
could not convert it into a s ecured debt by having the c ourt attach or arrest an
equivalent sum of money in Meihui zen’s bank account. There was no such
entitlement in law.
[22] Attachments to found jurisdiction s hould not be confused with the kind of
application which may be made where a de btor can be shown to be intent upon
disposing of or secreting assets to frust rate the claims of creditors. In such
circumstances a court may grant what has been referred to (not entirely
accurately) as an anti-dissipation interdict. 5 But even the grant of such an order
5 Knox D’Arcy Ltd and others v Jamieson and others 1994 (3) SA 700 (W) at 706D-E. See the comment
of E M Grosskopf JA in the judgment of the Appellate Division in the same case (1996 (4) SA 348 (A) at
372A-C).
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does not have the effect of converting an unsecured debt which is owed to the
applicant for the order into a secured debt . It simply preserves for the benefit of
all the creditors such assets as the debtor may have.
[23] The bank plainly had no power to transfer funds from Meihuizen’s bank
account to the sheriff’s bank account wit hout the former’s consent. Neither the
common law nor the court’s order entitled it to do so. All the money transferred
should have been ordered to be restored to Meihuizen’s bank account. The order
granted by Nel J should also ha ve been set aside by the court a quo. However, it
does not follow that Maviga should have been denied any relief whatsoever. Its
misunderstanding of the true nature of the property of TMP which was available
to be attached, namely, the debt owed by Meihuizen to TMP, should not have
debarred it from having that property att ached under its claim for alternative
relief. That is all the more so where, as is the case here, TMP did not oppose the
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attachment of even the money itself. It can hardly complain if its right to be
paid the money by Meihuizen is attached or arrested in its stead.
[24] The remaining issue is whether the attachment of that debt should also
stand as security for Maviga’s claim against TMP if it should become necessary
for it to sue in Lisbon, Portugal because of a refusal by the South African Court
to exercise jurisdiction. S 5 (3) (a) of the Act confers a discretion upon the court
to grant such an order. No reason for beli eving that such an eventuality is likely
to occur is given in the papers and no reason for confirming Nel J’s granting of
that particular order was given by Davis J, presumably because it was not the
subject of a specific attack. However, such an order should not have been
granted merely for the asking and in the ab sence of any reason to suppose that it
was necessary. It too should not be allowed to stand.
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[25] Paragraphs 3 and 4 of the order of Nel J and paragraph 1 of the order
granted by Davis J are couched in terms so wide as to cover freight monies
received by Meihuizen on behalf of TMP from any source in future. However, it
seems clear that only freight monies payable by Maviga were sought to be
attached and that the reference to futu re payments was included only because
Maviga was not certain when it launched its application that the payment of
freight it had made had actually reached Meihuizen’s bank account. It became
clear that it had and that there was no further amount due by Maviga. The need
for an order dealing with payments of freight which had not yet been made, but
would be made in the future, therefore fell away. Consequently, I shall make no
order in that respect.
[26] Had the orders which I intend ma king now in substitution for the orders
made by Nel J and Davis J been made in the court a quo Meihuizen would have
24
succeeded in its application and been entitled to its costs. Such an order
should now be made.
[27] It is ordered:
27.1 that the appeal be and is hereby allowed with costs.
27.2 that the orders granted by Nel J an d Davis J be and are hereby set aside
and replaced by the following order:
‘It is ordered:
27.2.1 that the sheriff of the court be and is hereby authorised and directed
to attach the right, title and in terest which Transportes Maritimos
De Portugal LDA (TMP) has in th e indebtedness to it of Meihuizen
Freight (Pty) Ltd (Meihuizen) in the sum of R750 058,00 arising
out of the receipt by Meihuizen on behalf of TMP of money paid to
25
it by Maviga UK Limited (Maviga) in discharge of its obligation
to pay freight to TMP;
27.2.2 The said attachment sh all found or confirm the court’s
jurisdiction over TMP in respect of maritime claims relating to the
loss of cargo while aboard the vessel mv ‘ TMP Sagittarius ’ and
such attachment shall not be lifte d unless Maviga consents thereto,
or there is deposited with the registrar of this court security for
Maviga’s claim in an amount equivalent to the value of the debt
attached.
27.2.3 The debt so attached or secu rity deposited in lieu thereof shall be
held pending the final outcome of the maritime claims referred to in
paragraph 27.2.2 hereof;
26
27.2.4 Maviga is granted leave to sue TMP by way of edictal citation, a
copy whereof is attached to this order marked ‘A’, the edict to be
served by courier on TMP in E nglish only at its business address,
Avienda 24 de Julho 126-2, Lis bon, Estremadora, Portugal. TMP
is given thirty (30) days from th e date of service within which to
enter an appearance to defend.
27.2.5 Maviga and/or the sheriff of this court and/or Nedcor Bank
Limited are authorised and direct ed to restore to Meihuizen’s bank
account with number 10093 65339 all amounts of money which
were transferred in purported pursuance of the order of Nel J dated
26 July 2002 from that account to an account controlled by the
sheriff.
27
27.2.6 Maviga is ordered to pay the costs incurred by Meihuizen in
procuring the discharge of the orde r granted by Nel J in so far as it
purported to attach money in the bank account of Meihuizen. The
costs of the application before Ne l J shall be costs in the cause of
the proceedings referred to in paragraph 27.2.2 hereof.’
_____________________
R M MARAIS
JUDGE OF APPEAL
SCOTT JA )
FARLAM JA )
JONES AJA )
PONNAN AJA ) CONCUR