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[1992] ZASCA 228
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Nahrungsmittel GmbH v Otto (654/91) [1992] ZASCA 228; 1993 (1) SA 639 (AD); [1993] 1 All SA 456 (A) (27 November 1992)
Case No. 654/91
IN THE SUPREME COURT OF SOUTH
AFRICA APPELLATE DIVISION
In the matter between:
NAHRUNGSMITTEL GmbH
Appellant
and
HEINZ BERND
OTTO
Respondent
CORAM:
HOEXTER, VIVIER, KUMLEBEN, F H GROSSKOPF, JJA et VAN COLLER
AJA
HEARD:
16 NOVEMBER 1992
DELIVERED:
27 NOVEMBER 1992
JUDGMENT
HOEXTER, JA
2
HOEXTER, JA
The appellant is a company incorporated in Germany which carries on business
at Mannheim and Frankfurt am Main. The appellant belongs
to a group of German
companies headed by CO-OP AG ("Co-op") which carries on business in Germany. The
respondent, Dr Heinz Bernd
Otto, is a German citizen. In what follows I shall
refer to the appellant as "the applicant" and to the respondent as "Otto". In
April 1990 the applicant applied in the Cape of Good Hope Provincial Division
for the provisional sequestration of Otto's estate.
The application was opposed.
Voluminous affidavits were filed on either side and the matter was argued for
three days before Conradie
J. Having reserved judgment thereon the learned judge
delivered a judgment ("the first judgment") in which he granted a provisional
sequestration order. The first judgment has been reported: Nahrungsmittel GmbH v
Otto
3
1991(4) SA 414(C). On the extended return day of the provisional order the
matter was argued for four days before Nel J. Having reserved
judgment Nel J
gave judgment ("the second judgment") in which he discharged the provisional
order with costs. The second judgment
has also been reported: Nahrungsmittel
GmbH v Otto 1992(2) SA 748(C). Against the whole of the second judgment the
applicant noted
an appeal to this court. The appeal was argued by Mr Eloff. Mr
Duminy appeared for Otto.
The allegations and counter-allegations made in the many and wordy affidavits
filed in the proceedings are explored at length in both
judgments. Save for
saying that not all of them were admissible in evidence no recapitulation is
necessary. In the course of this
judgment brief mention will be made to some of
the more salient facts.
In terms of sec 149(1) of the Insolvency Act 24
4
1936 ("the Act") a provincial or local division of the
Supreme Court has
jurisdiction over a debtor on the
grounds, inter alia, (i) that, on the date
on which a
petition for the sequestration of his estate is lodged with
the
registrar of the court, the debtor owns or is entitled
to property situate
within the jurisdiction of the court;
or (ii) that at any time within twelve
months immediately
preceding the lodging of the said petition the debtor
"ordinarily resided" within the jurisdiction of the court.
As appears from
the first judgment (at 422F) in the
proceedings before Conradie J it was "not disputed" on
behalf of Otto that on the date of lodgment of the petition
for sequestration by the applicant (24 April 1990) Otto was
entitled to property within the jurisdiction of the Cape
Provincial Division. The property in question, so
Conradie J considered (at 422G) -
"....was a claim for costs which had been awarded to the
respondent [Otto] against Co-op in earlier
5
abortive sequestration proceedings."
What Otto did
emphatically deny was the applicant's
averment that within the relevant
period he had been
"ordinarily resident" within the court's jurisdiction.
Apart from the fact that such ordinary residence
would have constituted a further ground of jurisdiction,
the issue of Otto's ordinary residence was relevant in
another connection.
In terms of the proviso to sec 149(1)
of the Act the court may refuse the sequestration sought
when it appears
to the court -
"....equitable or convenient that the estate of a person not
domiciled in the Republic be
sequestrated elsewhere."
Counsel for Otto submitted to Conradie J that if Otto were not ordinarily
resident within the court's jurisdiction, the court would
the more readily
exercise its discretion under sec 149(1) to order that Otto's estate be
sequestrated elsewhere. This proposition
the learned
6
judge accepted; but he went on to find as a fact (see 421B; 422H) that Otto
was in truth ordinarily resident in Cape Town. In the
course of a lengthy
judgment Conradie J further concluded (at 427G) that all the defences relied
upon by Otto failed, and that a
provisional order should be granted.
In the proceedings before Conradie J the disputed issues (summarised by the
learned judge at 417G-418B) ranged far and wide. One of
the grounds of
opposition was that the applicant did not rank as Otto's creditor inasmuch as
the applicant had ceded its claim against
Otto to Co-op. The alleged cession was
embodied in a document ("the document") which is described as an
"Einzugsermachtigung". It
had been drawn up in Germany in the German language,
and an English translation thereof was presented to the court. In affidavits
before the court two deponents conversant with German law stated their
respective and conflicting
7
expert opinions as to the proper construction to be put
upon the document.
In the first judgment Conradie J
proceeded to consider whether or not the
document embodied
what in South Africa would be regarded as an
outright
cession. The learned judge concluded (at 424H-I) that,
upon a
proper interpretation of its terms, the document
did not give Co-op locus
standi to sequestrate Otto's
estate.
There are, of course, occasions on which a court cannot determine a disputed
issue without deciding what the law of a foreign country
is in regard to a
particular matter. This was perhaps not such a case. Moreover, even upon a
finding that Otto had been ordinarily
resident within the court's jurisdiction,
it seems to me, with respect, there might have been much to commend the exercise
of a judicial
discretion in favour of an order that Otto's estate be
sequestrated elsewhere. The applicant was a
8
German company. Otto was a German national possessed in Germany of
substantial (albeit that they were frozen) assets. In addition,
at the time of
the application Otto was very firmly on German soil in such circumstances that
his early departure from his native
country was hardly imminent. Last but not
least, one of the grounds of opposition to the grant of a provisional order
involved a
ticklish construction of a German contract.
Upon the extended return date Nel J discharged the provisional order on two
grounds. First, for the reason that the concession made
before Conradie J that
Otto had owned property at the relevant time within the jurisdiction of the
court had been wrongly made; second,
for the reason that the applicant had
failed to prove that the court had jurisdiction over Otto based on the latter's
"ordinary residence"
at Cape Town within the relevant period.
9
Before considering the correctness or otherwise Of the merits of the appeal
against the judgment below it is necessary to deal briefly
with two preliminary
matters. The first relates to the procedural propriety of the applicant's appeal
to this court. In this connection
counsel for Otto raised an objection in
limine. Mr Duminy urged upon us that in this case no appeal to the Appellate
Division lay
without prior leave granted by Nel J; and that since such leave had
been neither sought nor granted the appeal should be struck off.
For the reasons
which follow the preliminary objection appears to me to be unfounded.
Sec 150(1) of the Act provides that any person aggrieved by a final order of
sequestration or by an order setting aside an order of
provisional sequestration
may appeal against such order. An obstacle in the way of Mr Duminy's contention
is presented by the judgment
in Fourie
10
v Drakensberg Koöperasie Beperk 1988(3) SA 466(A). In
that case this
court unanimously decided that the right of
appeal expressly granted by sec
150(1) of the Act:
(i) tacitly includes a right of appeal to the Appellate
Division; (ii)
that such right is not subject to the
provisions of sec 20(4) of the Supreme
Court Act 59 of 1959
as amended ("the SC Act"); and (iii) that leave to
appeal
against either of- the orders mentioned in sec 150(1) of the
Act is
accordingly not a prerequisite to such an appeal.
Mr Duminy submitted that in deciding that the
right
of appeal conferred by sec 150(1) of the Act is not
subject to the provisions of sec 20(4) of the SC Act, this
court fell into manifest error; and that we should not
follow the decision. I am unable to see any good ground
for questioning the correctness of that decision. Sec
20(4) of the SC Act reads as follows:-
"No appeal shall lie against a judgment or order of the court of a provincial or
local division in
11
any civil proceedings or against any judgment or order of that court given on
appeal to it except
-
(a)
in the case of a judgment or order given in any civil proceedings by
the full court of such a division on appeal to it in terms of
subsection (3),
with the special leave of the appellate division;
(b)
in any other case, with the leave of the court against whose
judgment or order the appeal is to be made or, where such leave has been
refused, with the leave of the appellate
division."
However, sec 20(6)(b) of the SC Act
provides that the power
to grant leave to appeal as contemplated in sec 20 -
"shall be subject to the provisions of any other law which ... specifically
grants ... any right of appeal."
Now sec 150(1) confers a right of appeal in the
two
instances in terms which are quite unqualified.
Counsel recognised the
absolute nature of the right of
appeal granted by sec 150(1), but he
suggested that the
consequence flowing therefrom was simply that the result
of
the indispensable application for leave was necessarily a
12
foregone conclusion; the court which had made the order, so the argument ran,
would be legally obliged to grant leave to the aggrieved
person, and the sole
function of the judge so granting leave would be to decide whether the appeal
should be heard by the appellate
division or the full court of the division
concerned. I am unable to accept this argument. The legal concept of an absolute
right
of appeal is the antithesis of the notion of the requirement of an
application for leave to appeal, and overrides any question of
the appropriate
forum. It seems to me that the meaning naturally and properly to be assigned to
sec 20(6) (b) of the SC Act is the
following: where a statute other than the SC
Act specifically grants a right of appeal to a dissatisfied litigant, such right
displaces
the requirement of leave to appeal imported by sec 20 of the SC Act.
So to construe the provisions of the subsection avoids the quixotic
consequence
implicit in
13
the construction of the subsection for which counsel
contends. Accordingly
the objection in limine cannot be
sustained, and the application on behalf of
Otto for the
striking off of the appeal is refused.
The second preliminary matter raises the
question
(in regard to which counsel were unable to
cite any
authority precisely in point) whether on the return day it
was
open to Nel J to reconsider and reverse the finding of
Conradie J that the
court had jurisdiction to sequestrate
Otto's estate. Sec 12 of the Act reads
as follows:-
"12(1) If at the hearing pursuant to the aforesaid rule nisi the court is
satisfied that -
(a)
the petitioning creditor
has established against the debtor a claim such as is mentioned in sub-section
(1) of section nine; and
(b)
the debtor has
committed an act of insolvency or is insolvent; and
(c)
there is reason to believe that it will be to the advantage of
creditors of the
14
debtor if his estate is sequestrated, it may sequestrate the estate of the
debtor. (2) If at such hearing the court is not so satisfied,
it shall dismiss
the petition for the sequestration of the estate of the debtor and set aside the
order of provisional sequestration
or require further proof of the matters set
forth in the petition and postpone the hearing for any reasonable period but not
sine
die."
In terms of sec 149(2) of the Act the
court is given the
power to -
"....rescind or vary any order made by it under the provisions of this Act."
Mr Eloff strenuously submitted that the
discretion
vested in the court on the return day is
narrowly circumscribed and that it
does not entitle the
court then to re-examine the finding of jurisdiction by
the
court which issued the provisional order. That being the
position, so counsel further contended, in considering the
appeal against
the judgment below this court should
15
disregard the contents of an affidavit by Otto's wife ("Mrs Otto's further
affidavit") filed subsequent to the grant of the provisional
order. Mr Duminy,
on the other hand, argued that it could not have been the intention of the
Legislature that any finding made by
a court at the stage of the grant of a
provisional order should be final and irreversible. He pointed out, moreoever,
that the Act
(see sec 11(1) {"".neither prescribes nor limits the grounds
whereon a debtor may rely in showing cause on the return day why his
estate
should not be sequestrated.
For purposes of the present appeal it is unnecessary for us to express any
final conclusion on the above issue. Mr Eloff properly
conceded that,
irrespective of the answer to the question, it is clear that this court is
entitled to consider the correctness of
Conradie J's finding on jurisdiction. In
addition it does not appear to us that what is said in Mrs Otto's further
16
affidavit makes any real contribution to a solution of the issues on appeal;
and we propose to disregard it. For purposes of the appeal
we shall assume in
favour of the applicant that Mr Eloff's submission in regard to the powers of
the court on the return day is valid.
The conclusion reached by Nel J in the second
judgment that
the applicant had failed to establish that
the Cape Provincial Division had
jurisdiction over Otto
rested on findings that on the affidavits before him
it had
been proved neither (a) that at any time within twelve
months
immediately preceding the lodging of the petition
for sequestration Otto had
"ordinarily resided" within the
jurisdiction, in terms of sec 149(1 )(b) of
the Act (at
760B-C); nor (b) that on the date on which the
applicant's
petition was lodged with the registrar Otto owned or
was
entitled to property within the jurisdiction of the court,
in terms of
sec 149(1)(a) of the Act (at 754D-E). For the
17
reasons undermentioned it appears to me that both the findings indicated
above were correctly made. In my judgment Conradie J erred
in granting a
provisional order of sequestration. I shall deal in turn with each of the
jurisdictional issues on which the result
in the appeal hinges.
(A)
THE ISSUE OF". OTTO's ORDINARY RESIDENCE
Dealing with a court's statutory jurisdiction
to
entertain an application for sequestration of a
debtor's
estate Millin J put the matter crisply thus in Ex parte
Eksteen
1938 WLD 224
at 225:-
"The question whether a man is ordinarily resident at a place is one of fact and
it must be decided on the facts which it is the
petitioner's duty to put before
the Court ...."
In my opinion the applicant in the
present case failed to
discharge that duty. Suffice it to say that upon a
perusal of the affidavits (excluding Mrs Otto's further
18
affidavit) I find myself in agreement with the following
summary of the position at 760B-D in the second judgment.
"The applicant has adduced no evidence at all that the respondent [Otto] has
been ordinarily resident in Camps Bay at any time during
the relevant period.
Bean has no personal knowledge of this issue, as can be seen from the various
statements made by him in other
proceedings."
Apart
from the fact that Mr Bean appears to lack personal
knowledge in regard to the issue, it is significant that in
various affidavits made by him during the year 1989 in
other proceedings involving Otto, and in which the place of
residence of the latter was a crucial factor, Mr Bean, so
far from suggesting that Otto was resident within the
court's jurisdiction, categorically asserted that Otto was
a peregrinus of the Cape Provincial Division. The
relevant sworn statements are catalogued at 756A-D of the
judgment below. The following fact is also noteworthy.
In the abortive sequestration proceedings launched against
Otto by Co-op the latter's attorney was Mr Bean. An
19
application by Otto in those proceedings for Co-op to furnish security for
costs was resisted by Co-op. In a formal notice to the
registrar filed on behalf
of Co-op, signed by Mr Bean, one of the two grounds of opposition to the
application for security was stated
thus:-
"(b) The Respondent [Otto] is a
peregrinus." This document was signed by Mr Bean on 25 October 1989. Some nine
or ten days later (on
3 November 1989) Otto was arrested in Germany.
In Cohen v Commissioner for Inland Revenue
1946
AD 174
Schreiner JA (at
185) stated obiter of a person's
"ordinary residence" that it would be -
"....the country to which he would naturally and as a matter of course return
from his wanderings; as contrasted with other lands
it might be called his usual
or principal residence and it would be described more aptly than other countries
as his real home."
(Emphasis supplied).
Recently
reference to the above dictum was made by this
court, with apparent approval, in Commissioner for Inland
20
Revenue v Kuttel 1992(3) SA 242(A) at 248F-G. In the
course of delivering
the court's judgment in the latter
case Goldstone JA had earlier (at 247F-G)
remarked:-
"The words 'residence' or 'resident' are well known to lawyers. They are
frequently used, for example, with regard to the question
as to persons who may
be subject to the jurisdiction of a court or tribunal and with regard to revenue
laws. That a person may have
more than one residence at any one time is clear.
In the present case we are concerned with the words "ordinarily resident'. That
is something different and, in my opinion, narrower than just 'resident'."
It is clear that when life in Germany
became
difficult for Otto he and his family became
birds of
passage, and that they travelled much from country to
country -
often with Otto travelling on his own.
According to Otto he was, at the
relevant time, ordinarily
resident in Canada; and he had started a business there.
During part of 1989 he had stayed temporarily at the house
in Camps Bay, so Otto said, to deal with Co-op's litigation
21
against him; and in order to spend some time with his family. There is no
evidence to show that during the years 1987 - 1989 Otto's
visits to Cape Town
were anything more than sporadic sojourns.
In the first judgment Conradie J
considered (at 421D) that Otto's evidence was "altogether too flimsy to support
the conclusion that
he ordinarily resided" in Canada. The real inquiry, however,
was whether the applicant had successfully demonstrated that at the
relevant
time Otto had been habitually and normally resident in Cape Town, and that Cape
Town could be described more aptly than
other countries as Otto's real home.
This question must be answered in the negative. There is nothing to show that
Otto's claim that
he regarded Canada as his home was an improbable one. Otto had
met his wife in Hong Kong and married her in Canada. Their two children
were
born in that country. He had a married
22
sister living in Canada. His evidence that he had set about establishing a
business in Canada is uncontradicted. It is true that after
his arrest Mrs Otto
and the children remained on in Cape Town; but there appears to be no good
reason for doubting Mrs Otto's evidence
that this was dictated by circumstances
beyond her control.
In weighing the probabilities on this issue Conradie J
regarded as significant (see 421E-422C) certain written submissions made in
regard to Otto's place of residence by a German attorney for use in a German
court. These submissions were contained in a document,
dated 6 November 1989,
and drafted in German. In the proceedings before Conradie J an English
translation of this document was produced
to the court. The translation was not,
however, certified correct by a sworn translator of the court as is required by
Rule 60. On
behalf of Otto formal notice of an application was given to strike
out a large
23
number of passages in the applicant's founding and replying affidavits. The
notice included, inter alia, an objection to the translation
in question based
on non-compliance with Rules 59 and 60. Although no mention thereof is made in
the first judgment, counsel informed
us that in argument his objection to the
translation was specifically raised. The translation was inadmissible, and it is
not clear
for what reason, if any, the court had regard to it.
(B)
IN WHAT LOCALITY WAS OTTO'S RIGHT TO LEGAL COSTS SITUATE?
One is concerned here with intangible property rights which can have no
physical locality. When the petition for sequestration was
lodged there was in
existence simply a certificate by the taxing master, dated 3 February 1990,
awarding Otto costs. Those costs
were unpaid when the petition was lodged. The
certificate of
24
the taxing master did not constitute Otto's right to costs;
it merely
evidenced it. In the second judgment Nel J
correctly invoked the legal
fiction that movables follow
their owner. The learned judge observed (at 753
G-H) -
"At all material times the respondent was in a cell in Germany and the 'Co-op' a
German firm carrying on business in Germany. The
claim for the payment of costs
which the respondent [Otto] had was an incoporeal movable which did not have an
existence separate
from that of the respondent. There was thus no 'property' of
the respondent within the jurisdicion of this
Court."
In Trustee of Howse, Sons & Co v
Trustees of Howse, Sons &
Co
(1884) 3 SC 14
De Villiers CJ said (at 19):-
"The general rule relating to movable or personal estate is that it is subject
to the same law as that which governs the person of
the owner, in other words
the law of his domicile. This rule is expressed in the civil law by the maxim,
mobilia sequuntur personam,
and by the quaint saying, mobilia ossibus
inhaerent."
In the first paragraph of the passage
from Voet 1.8.30
quoted by Nel J (at 753 H - 754 E) the view is expressed
that incorporeal movables are deemed to be at the place of
25
the creditor's domicile. In the second paragraph Voet
goes on to say that
there are, however, "some who confine
these actions to the residence of the
debtor, since payment
may be exacted there."
In Union Government v Fisher's Executrix 1921
TPD
328 Wessels JP (at 333) remarked:-
"Now we have the authority of Grotius in one of the Opinions given by him in the
Hollandse Consultaties for the proposition that,
in order to determine the
domicile of the debt one has to see where the debtor is domiciled. It occurs in
Vol III., Consult. 151.
It is also to be found in de Bruyn's translation,
Opinion No 33. He states there that obligations and other personal claims are
neither
movables nor immovables, but constitute a separate third class of
property. Such claims are not governed by the law of the place
where the
creditor resides, but where the debtor is, and where fulfilment can be demanded
and exacted instanter."
The above exposition by
Wessels JP was cited with approval
by Innes CJ in Randfontein Estates Gold Mining Co Ltd v
Custodian of Enemy Property
1923 AD 576
, in which this
court had to decide upon the question whether bearer shares
26
and bearer debentures of a company registered in the
Transvaal were
"property" within this country as defined by
the Treaty of Versailles.
Dealing with the incorporeal
rights evidenced by the company documents there
in issue,
and having referred to Grotius Cons. Vol III N 151, Innes
CJ (at
581) put the matter thus:-
"There is no need however to consider the application to them of the doctrine
mobilia personam sequuntur, nor to discuss the statement
of Grotius that
actiones personales are governed by the law of the debtor's domicile. Because
the point to be determined is not what
system of law governs the disposition or
devolution of such rights, but where they are legally situated. Now the only
attribute of
locality which they possess must relate to the locality where the
debtor resides. It is there that performance is due, and it is
there that the
debtor must be sued if performance is to be exacted. It is only there that such
incorporeal property can be regarded
as localised." (Emphasis
supplied).
Mr Eloff sought to avoid the consequences
of the principle
so described by Innes CJ in the abovementioned case by
relying on the recent decision of this court in Longman
27
Distillers Ltd v Drop Inn Group of Liquor Supermarkets
(Pty) Ltd 1990(2) SA 906(A). The appellant ("Longman") in
that case was a
peregrinus of the Cape Provincial Division;
and the respondent ("Drop Inn")
an incola. In previous
litigation between the parties a costs order had been
made
in favour of Longman. At the instance of Drop Inn an
order of
attachment ad fundandam jurisdictionem of the
costs order was granted. This
court held that if the
requirements of such an order were otherwise satisfied
the
grant of the attachment order was not against public
policy. Mr Eloff
called particular attention to the
following statement by Nicholas AJA (at 915A):-
"The essential fact is that Longman became possessed of property attachable
within the area of jurisdiction of the Cape Provincial
Division...."
Counsel for the applicant contended
that if a costs order
in favour of a peregrinus is liable to attachment to found
jurisdiction it necessarily follows that the situs of the
28
right involved is within the court's jurisdiction. This argument based on the
Longman case (supra) is unsound. So far from supporting
counsel's submission,
the Longman case provides a precise illustration of the principle enunciated by
Innes CJ in the Randfontein
Estates case (supra). In the Longman case the order
of costs granted in favour of Longman and against Drop Inn rendered Drop Inn
a
debtor. That debtor was an incola of the court; and the situs of the incorporeal
which Drop Inn sought to attach was therefore
Cape Town. In the instant case the
taxing master's certificate rendered Co-op the debtor. Here, however, the debtor
is a German company
resident in Germany. Consequently the locality of the
incorporeal property evidenced by the taxing master's certificate was not Cape
Town but the place of residence of Co-op.
For the reasons aforegoing it follows that Conradie J should not have granted
a provisional order of
29
sequestration and that no grounds exist for disturbing the order made by Nel
J.
The appeal is dismissed with costs.
G G HOEXTER, JA
VIVIER, JA )
KUMLEBEN,
JA )
F H GROSSKOPF, JA ) Concur
VAN COLLER, AJA" " )