BIGZY HOLDINGS (PTY) LTD T/A SUA FILLING STATION v. ESO MANAGEMENT (PTY) LTD AND OTHERS 2002 (2) BLR 125 (HC)

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Citation: 2002 (2) BLR 125 (HC)
Court: High Court, Lobatse
Case No: Misca 219 of 2001
Judge: Lesetedi J
Judgment Date: July 25, 2002
Counsel:
K Prendini (with him R M Kamushinda) for the applicant. Sawma (with him A E Bayford) for the respondents.
Flynote

Practice and procedure - Applications and motions - Application for attachment ad confirmandam jurisdictionem - When required - Whether submission alone sufficient to confer jurisdiction in an action by an incola plaintiff against a E peregrine defendant.

Headnote

The applicant applied for orders of attachment of the respondents' motor vehicles ad confirmandam jurisdictionem in a number of claims arising out of contracts by the applicant against the third to forty-eighth respondents. All the vehicles were beyond the jurisdiction of the court and all the respondents were peregrines. F The applicant was an incola. Certain of the respondents opposed the application and contended into alia that in respect of the respondents who had offered security, the order could not be confirmed and secondly, in respect of the other respondents who had in their affidavits submitted themselves to the jurisdiction of the court, that the court could not in such a situation proceed to granted attachment as the submission bestowed upon the court G the jurisdictional powers which had hitherto been lacking.

Held: (1) As to whether submission alone without attachment was sufficient to confer jurisdiction in an action by an incola plaintiff against a peregrine defendant, that such submission to jurisdiction by a peregrine was sufficient to give the court jurisdiction without an attachment of property ad confirmandam jurisdiction. Centner, NO v. Griffin, NO 1960 (4) S.A. 798 (W) followed. H

(2) In the present case, besides the applicant being an incola, the contract was entered into within the jurisdiction and performance of the contract was to be within the jurisdiction and thus it was not only submission that connected the suit to the jurisdiction. Veneta Mineraria Spa v. Carolina Collieries (Pty) Ltd (in liquidation) 1987 (4) S.A. 883 (A) distinguished.

(3) Where a submission or consent to jurisdiction by a peregrinus before


 

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an order of attachment to confirm jurisdiction has been granted, the court will not grant an order of attachment A because the court's jurisdiction would already have been secured and the court would thereafter not concern itself with whether any judgment which might have been given would be effective or not. A submission coming after attachment had been executed was too late and the court would not in such event set aside the attachment.

Case Information

Cases referred to: B

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) S.A. 356 (W)

Brooks v. Maquassi Halls Ltd 1914 CPD 371

Centner, NO, v. Griffin, NO 1960 (4) S.A. 798 (W) C

Cinemark (Pty) Ltd v. Transkei Hotel 1984 (2) S.A. 332 (W)

Ewing McDonald & Co Ltd v. M & M Products Co 1991 (1) S.A. 252 (A)

Inter-Science Research and Development Services (Pty) Ltd v. Republica Popular De Mocambique 1980 (2) S.A. 111 (T)

Mediterranean Shipping Co v. Speedwell Shipping Co Ltd and Another 1986 (4) S.A. 329 (D) D

Sonia (Pty) Ltd v. Wheeler 1958 (1) S.A. 555 (A)

Rosenberg and Another v. Mbanga and Others (Azaminle Liquor (Pty) Ltd Intervening) 1992 (4) S.A. 331 (E)

Thermo Radiant Oven Sales (Pty) Ltd v. Nelspruit Bakeries (Pty) Ltd 1969 (2) S.A. 295 (A)

Veneta Mineraria Spa v. Carolina Collieries (Pty) Ltd (In Liquidation) 1987 (4) S.A. 883 (A) E

APPLICATION for orders attaching the respondents' motor vehicles ad confirmandam jurisdictionem. The facts are sufficiently stated in the judgment.

K Prendini (with him R M Kamushinda) for the applicant.

Sawma (with him A E Bayford) for the respondents.
Judgment

Lesetedi J:

This is an application for the attachment of the respondents' motor vehicles ad confirmandam jurisdictionem in respect of a number of listed claims by the applicant against the third to forty-eighth respondents. The application G was brought ex parte on a certificate of urgency and a rule nisi was issued on 1 June 2001 returnable on 6 July 2001 authorising the attachment, seizure and detention of the said vehicles at a storage facility or in safe custody pending the outcome of actions in respect of the said claims which were to be instituted by the applicant within thirty days of the order. As the said vehicles were beyond the borders of the country and thus beyond the H jurisdiction of the court, it was ordered that they be seized at any border post they may use to enter or exit Botswana or wherever they may be found within the borders of the country. That part of the rule nisi dealing with the attachment, seizure and detention of the motor vehicles was to have immediate effect as an interim order. As well as the vehicles being beyond the jurisdiction of the court, all the respondents are peregrines.


 

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LESETEDI J

The applicant alleges in its papers that some time in May 2000 it entered into an oral agreement with the A respondent (as agent of the third to fifty-first respondents) in terms of which it was agreed that the applicant would provide fuel and oil for and on behalf of vehicles belonging to the third to the fifty-first respondents on credit upon production of a purchase order from the first respondent who acted as an agent for the aforesaid respondents. Applicant was to then send monthly invoices to the first respondent who would then make payment B by way of bank draft. The first respondent is alleged to have breached this agreement by failing to make payments upon presentation of the invoices leading to an amount owing in the total sum of P587 246.19 made up of different sums in respect of each vehicle or each respondent. The first respondent is said to have restructured itself into the second respondent.

Before the confirmation of the rule, a number of the respondents entered opposition. These were, second, third, C fifth, twelfth, fourteenth, fifteenth, Transhelf 96 CC although not cited, seventeenth, eighteenth, nineteenth, twenty-third, twenty-fourth, twenty-eighth, twenty-ninth, thirtieth, thirty-second, thirty-third, fourtieth, forty-first, forty-seventh forty-eighth and fiftieth respondents. The vehicles relating to the twenty-fourth, twenty-ninth, thirtieth, forty-fifth and forty-seventh respondents were prior to the return date, attached pursuant to the court D order. By consent, this court made an order on 6 duly 2001, in terms of which the said respondents were to effect payment into court of the total sum of P38 708.32 being the value of the claims against those respondents, and costs in the sum of P20 000. The attached vehicles were ordered released upon such payment. The rule nisi was then extended to another date. E

In their opposing papers, the respondents argued that the applicant has failed to establish a prima facie case. In this respect they deny the existence of an agency agreement contending that the first respondent at all material times acted as a principal not an agent and that the applicant had in any event in an earlier application based on the same transactions, alleged that the first respondent was acting as a principal. The respondents also argued F that the applicant has failed to show that the respondents owned the vehicles which were sought to be attached. The next issue taken by the respondents was that of the availability of the remedy of attachment where it was contended, firstly that in respect of the respondents who had offered security the order could not be confirmed and secondly, in respect of the other respondents who have in their affidavits submitted themselves to G the jurisdiction of the court, that the court can not in such a situation proceed to grant an attachment as the submission bestowed upon the court the full jurisdictional powers which had hitherto been lacking.

In response, the applicant contends that it has established a prima facie case in that from its averments, it has shown not only that there was an agency agreement but also that the respondents were the owners of the H vehicles which were the subject matter of the attachment. In this regard all I need to do is to reiterate Margo J's words in Inter-Science Research and Development Services (Pty) Ltd v. Republica Popular de Mocambique 1980 (2) S.A. 111 (T) at pp 118H-119A:

     'The applicant's case on that score may not appear at this stage to be a


 

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LESETEDI J

     strong one, but, for the limited purposes of an attachment to found or confirm jurisdiction, that is not the criterion. As Steyn A J (later CJ) said in Bradbury Gretorex Co (Colonial) Ltd v. Standard Trading Co (Pty) Ltd 1953 (3) S.A. 529 (W) at p 533C-E, after an examination of earlier authorities, the requirement of a prima facie cause of action, in relation to an attachment to found jurisdiction, is satisfied where there is evidence which, if accepted, will show a cause of action. The mere fact that such evidence is contradicted would not disentitle the applicant to the remedy. Even where the probabilities B are against the applicant, the requirement would still be satisfied. It is only where it is quite clear that the applicant has no cause of action, or cannot succeed, that an attachment should be refused or discharged.'

From the applicant's papers as they stand, and notwithstanding what was said by the applicant in a previous C application, it does not appear to me that it can be said that applicant has not made out a prima facie case.

On submission to jurisdiction, the applicant's submission was that mere submission without an attachment was not sufficient to confer an otherwise lacking jurisdiction as no effectiveness in implementing the court's decision D in the action would have been established. In this respect the applicant relied on part of the following statement in Veneta Mineraria Spa v. Carolina Collieries (Pty) Ltd (In Liquidation) 1987 (4) S.A. 883 (A) at p 892F by Viljoen AJA commenting on the dictum of Price AJA in the case of Sonia (Pty) Ltd v. Wheeler 1958 (1) S.A. 555 (A) at p 563C,

     'The dictum in Sonia's case supra at 563C which is relied on reads as follows: E

              "Save for the principle of submission, that is, a voluntary submission by a defendant to the Court exercising jurisdiction over him which it does not possess in law, the basic principle of jurisdiction is effectiveness, (Schlimmer v. Executrix in Estate of Rising 1904 TH 108 at 111.) This point is fully discussed by Mr Pollack in his book on Jurisdiction from 15 onwards. He quotes several dicta, one from an American case - McDonald v. Mabee 243 US 90 F (1917) where Holmes J said 'The foundation of jurisdiction is physical power'."

     I do not read this passage as indicating that the prorogation or submission by itself confers jurisdiction on a Court. Regard being had to the context in which the comment was made by Price AJA, it is evident that the Court did have jurisdiction G over the cause. As far as the person of the defendant was concerned, Price AJA distinguished between a defendant who submits to the jurisdiction and one who does not do so. In my view the effect of the judgment is that, in the latter case, the added requirement of effectiveness has to be satisfied. That would be attained by the arrest of the person or attachment of his property in the area of the jurisdiction of the Court.' H

     (Emphasis added by applicant's counsel.)

Although the arguments were lengthy and the documentation bulky, for purposes of this ruling it is not essential that I deal in detail with each and every argument nor detail all the averments of both sides.

On the issue of submission, It is necessary to briefly outline the principles


 

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regarding jurisdiction in so as they are relevant to this application. In the present context jurisdiction means the A power vested in a court by law to adjudicate upon, determine and dispose of a matter. See Ewing McDonald & Co Ltd v. M & M Products 1991 (1) S.A. 252 (A). By disposing of a matter, it is included the court's power to put its decisions into execution, ie to enforce its judgments. Such power is both in extent and character territorial, it being confined within the boundaries and over subjects or a subject matter associated with the court's decreed B territory. The object of the principle is that judgments should be given where they can be enforced or given effect because judgments which cannot be enforced are illusory. As pointed out by Viljoen JA in Veneta Mineraria Spa v. Carolina Collieries (Pty) Ltd, supra 'A court can only be said to have jurisdiction in a matter if it has the power not only of taking cognisance of the suit but also of giving effect to its judgment.' This has led to C what is commonly referred to as the doctrine or principle of effectiveness. In a claim based on contract, the court will under the common law and practice under it, therefore exercise jurisdiction upon any one of the following grounds, namely, ratione domicilii; ratione rei sitae and ratione contractus. The last ground refers either to where D the contract has been entered into or where it has to be performed within the jurisdiction. See the Veneta Mineraria Spa case supra at p 890F quoting Kotze J in Brooks v. Maquassi Halls Ltd 1914 CPD 371. Kotze J went on to state:

     'But in order to exercise jurisdiction under either the second or third ground which I have mentioned, the practice has always been to grant an arrest either of the property or the person of the debtor ad fundandam jurisdictionem, and in this E way the debtor or his property, to use the expressive language of the Dutch lawyers becomes bankvast. There is, therefore, always something against which, in the event of the judgment being in favour of the plaintiff, the decree of the court can operate, and not amount to a mere nullity, for the Court, like nature, should do nothing in vain.' F

It has been warned however that 'effectiveness' should not be given too literal an interpretation. Potgieter JA aptly put the warning in Thermo Radiant Oven Sales Ltd v. Nelspruit Bakeries (Pty) Ltd 1969 (2) S.A. 295 at p 309F thus:

     'It should, I consider, not be equated with a guarantee that in every case the judgment of the case would be satisfied completely.' G

Such a warning is sound for even in an action against an incola defendant, there is no guarantee that when execution is levied against his possessions, such possessions may not satisfy the judgment, yet the court exercises its jurisdiction even if the incola defendant is impecunious.

It is for that reason that in modern times the value of the property to be attached does not always bear a H relationship to the claim. It can be quite nominal. In this regard Herbstein and Van Winsen's The Civil Practice of the Supreme Court of South Africa (4th ed) at p 92 also points out the anomaly of the term 'effectiveness' and the need for the principle not to be given too literal a meaning in these words:

     'It appears the only reason why . . . courts still require an attachment to


 

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LESETEDI J

     found jurisdiction is to enable the court to give a judgment which has some effect even though ultimately the judgment may A in many cases be only partly satisfied and the effectiveness of the judgment fictional to the extent that it is not satisfied.'

The principle of effectiveness is however not the sole basis of jurisdiction. There is also the principle of submission. See American Flag plc v. Great African T-Shirt Corporation CC 2000 (1) S.A. 356 (W). There are B situations where a peregrine defendant or respondent voluntarily submits to the jurisdiction which he would otherwise not be subject and by so doing, confer jurisdiction on such court. Such a person cannot afterwards be heard to say that the court had no jurisdiction over him. See Pollack on Jurisdiction by Pistorius (2nd ed) at p 7.

As pointed out in Mediterranean Shipping Co v. Speedwell Shipping Co Ltd and Another 1986 (4) S.A. 329 (D) C cited in Pollack op cit, such submission can be expressed in words or come about by way of agreement between the parties or through unilateral conduct following upon citation before a court not ordinarily competent to give judgment against it. In respect of the latter, Van Heerden J elaborates in the following words at p 333F: D

     'Thus where a person not otherwise subject to the jurisdiction of a court submits himself by positive act or negatively by not objecting to the judgment of that court, he may, in cases such as actions sounding in money, confer jurisdiction on that court.'

But is submission alone without attachment sufficient to confer jurisdiction on a court in an action by an incola E plaintiff against a peregrinus defendant? It appears from South African cases that the courts there have for over a century made dicta to the effect that actions by incolae against peregrine defendants are entertained solely on the ground of consent to jurisdiction. See the American Flag plc supra at p 371H-I; Cinemark (Pty) Ltd v. Transkei Hotel 1984 (2) S.A. 332 (W) at p 333F-H. Roper AJ also expressed the same view in Centner, NO v. Griffin, No 1960 (4) 798 (W) at p 799C as follows: F

     'It is I think clear that in our modern practice a submission to the jurisdiction by a peregrinus is sufficient to give the Court jurisdiction without an attachment of property ad fundandam jurisdictionem . . .' G

Referring to an article by Ellison Khan in the 1981 Annual Survey of the South African Law at pp 569571, Goldstone J, in the Cinemark case stated,

     'As pointed out in the last mentioned article, if there always has to be arrest or attachment there would be no scope at all for submission as a ground of jurisdiction.' H

Pollack on Jurisdiction op cit at p 8, also states, more in point, that:

     'Modern South African law does not, however, require the arrest of the person of the defendant or the attachment of his goods in addition to submission in those cases where, ordinarily, such arrest or attachment would be necessary to confirm the court's jurisdiction.'


 

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The above appear to me to be sound law and there is no reason why this court should not follow the same A principles. The remarks of Viljoen AJA relied upon by the applicant, if they were intended to mean that submission alone by a peregrine defendant in a suit by an incola plaintiff can not confer jurisdiction, can not be consistent with decided leading authorities on the subject. In any event the court in that case was faced with a situation where the plaintiff itself was a peregrinus and the defendant though an incola of South Africa, was a B peregrinus of the court. The contract in respect of which the litigation therein arose was neither entered into nor was it to be performed within the jurisdiction of that court. The only link with the court was therefore submission. The learned judge had in any event earlier at p 888D encapsulated the issue he had to determine in these words:

     'The crisp point to be decided is whether the consent to the jurisdiction can stand alone as conferring jurisdiction on a C Court or whether it serves merely to supply, complementarily to some causa jurisdictionis, an element to the jurisdiction which would, but for such consent, be defective.'

It should be borne in mind however that in the present case, besides the applicant being an incola, the contract D was entered into within the jurisdiction and performance of the contract was to be within the jurisdiction. It is not only submission that connects the suit to the jurisdiction. This case is therefore distinguishable from the Veneta Mineraria Spa case.

When can a submission to jurisdiction be made? In Rosenberg and Another v. Mbanga and Others 1992 (4) S.A. 331 (E) it was held and I believe correctly, that where a submission or consent to jurisdiction by a E peregrinus before an order of attachment to confirm jurisdiction has been granted, the court will not grant an order of attachment because the court's jurisdiction would already have been secured and the court will thereafter not concern itself with whether any judgment which might be given will be effective or not. A submission coming after an attachment has been executed is too late and a court will not in such event set aside the attachment. The above disposes of the question relating to those respondents whose motor vehicles F were attached.

In the premises, insofar as those applicants who have not entered opposition to the application are concerned, the rule nisi is hereby confirmed with costs. In respect of those who have provided security, the court order of 6 July 2001 shall remain in force pending the outcome of the action to be instituted by the applicant against those G respondents. In respect of the respondents who have submitted themselves to the jurisdiction of this court, the rule nisi is hereby discharged.

The applicant is entitled to costs of the application up to when it received the submission to jurisdiction. As thereafter it was not entitled to pursue this application against the said respondents, the said respondents shall be entitled to the costs incurred thereafter. I am not persuaded that there is any basis for any special order for H costs. On that basis costs shall be on party and party scale. The applicant is to institute its action against the respondents within 30 days from the date of this order.

Rule nisi confirmed with costs.

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