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

• Jurisdiction: South Africa
• Citation: 2000 (1) SA 356 (W)

American Flag plc v Great African T-Shirt Corporation CC;
American Flag plc v Great African T-Shirt Corporation CC: In re Ex parte Great African T-Shirt Corporation CC
2000 (1) SA 356 (W)

2000 (1) SA p356

Citation	2000 (1) SA 356 (W)
Case No	98/17216; 98/18919
Court	Witwatersrand Local Division
Judge	Wunsh J, Navsa J, Snyders J
Heard	September 14, 1998
Judgment	October 16, 1998
Counsel	J P V McNally for American Flag plc.; R L Selvan SC (with him S S Cohen) for Great African T-Shirt Corporation CC.

Flynote : Sleutelwoorde

Jurisdiction — Attachment ad fundandam jurisdictionem — Plaintiff a peregrinus — Court in which peregrinus sues always having jurisdiction to try counterclaim — Attachment of plaintiff's property not necessary to I found jurisdiction in respect of counterclaim, a fortiori where counterclaim arises from same transaction.

Jurisdiction — Submission to — Effect of — Peregrine defendant submitting to jurisdiction of Court in action by incola — Attachment ad fundandam jurisdictionem neither necessary nor permissible — Court having jurisdiction even in absence of other ratio jurisdictionis. J

2000 (1) SA p357

Headnote : Kopnota

American Flag plc (AF), a peregrinus of the Republic, A instituted an action in a Local Division against Great African T-Shirt Corporation CC (GATS), a South African close corporation with its principle place of business in Johannesburg, by way of a provisional sentence summons based on an acknowledgment of debt for US$280 000 signed by GATS in favour of AF. GATS gave notice of its intention to B defend the action, its defence being that it had a counterclaim against AF for R1 500 000. GATS also applied for the attachment of AF's claim ad fundandam jurisdictionem. AF applied to intervene in the application for attachment. In view of the conflicting decisions on whether a party that was entitled to attach the property of a peregrinus ad fundandam jurisdictionem was precluded from C doing so if the defendant submitted to the jurisdiction of the Court, the Local Division decided to refer the entire matter to the Full Bench. AF's (unopposed) application for leave to intervene was granted. The Full Bench judgment dealt principally with (1) the effect of AF's submission to the jurisdiction of the Court, (2) the effect of the fact that AF was the plaintiff in convention and (3) AF's claim for provisional sentence.

As to (1): GATS persisted with its application for attachment ad fundandam jurisdictionem despite AF's submission to jurisdiction D on the ground that, in the absence of a ratio jurisdictionis, AF's submission was not effective to confer jurisdiction on the Court to determine the action. The Court analysed the relevant case law and pointed out that South African Courts had since at the latest 1887 articulated dicta to the effect that actions by incolae against peregrine defendants could E be entertained solely on the ground of the defendant's submission to the jurisdiction of the Court. (At 363D/E-E/F, 365I-I/J and 371H-I.) It was furthermore held that the Appellate Division had had no intention of overturning this long course of practice in Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in Liquidation) 1987 (4) SA 883 (A), which was distinguishable in that both parties had been F peregrini of the trial Court. Accordingly, the Appeal Court's dictum that submission by a peregrine defendant was not enough and that one or more of the traditional grounds of jurisdiction had to be present had not been meant to extend to the case where the plaintiff was an incola of the Court's area: there was, after all, no reason why the Appellate Division would have G concerned itself with that situation. (At 367B-C, I/J, 368C-C/D, 370I/J-371A, 373A/B and 377B-B/C.) Consequently, the dictum in Briscoe v Marais 1992 (2) SA 413 (W) at 416F - G that 'in the case of an attachment ad fundandam jurisdictionem of assets of a peregrinus defendant, the attachment . . . cannot be replaced by a consent to jurisdiction' where no 'causa jurisdictionis, apart from attachment, exists' was based on a faulty interpretation of the dictum in Veneta. The Court concluded that the fact that AF had submitted to the jurisdiction of the Court meant that an attachment was neither necessary nor permissible. (At 377F.)

As to (2): The Court pointed out that it was well-established that a H plaintiff always submitted to the Court in which he brought his action. GATS could not avoid AF's acceptance of the Court's jurisdiction by arguing that its claim was not a claim in reconvention but a separate action, a fortiori where its claim for damages arose out of the same transaction as did the principal claim. The Court in which a foreign plaintiff sued had jurisdiction to try a counterclaim. It was I clear from the allegations made by GATS that AF's principal claim under the provisional sentence summons and GATS's alleged counterclaim for damages arose out of the same transaction. (At 377G-I and 379H.) The Court accordingly concluded that the application to attach AF's claim against GATS had to be dismissed with costs. (At 381E.)

As to (3): The Court found on the facts that AF was armed with a liquid document and that no defence had been raised to the claim. A defendant in J

2000 (1) SA p358

provisional sentence proceedings was entitled to raise a counterclaim as a A defence and, if the facts set out in GATS's affidavit were not disputed, there was a probability that it would succeed in establishing its counterclaim. Because AF chose not to reply to the allegations in the opposing affidavit, GATS had to be given the opportunity to have its counterclaim determined before suffering a judgment against it. (At 381E/F-F and 382C/D-D/E.)

Cases Considered

Annotations G

Reported cases

Ackerman v Union Government 1915 CPD 247: dictum at 250 approved

Bedeaux v McChesney 1939 WLD 128: referred to

Birkett v Birkett 1953 (4) SA 445 (T): applied

Brecher v Brecher 1947 (3) SA 225 (SWA): C dictum at 229 approved

Briscoe v Marais 1992 (2) SA 413 (W): discussed and not followed

Centner NO v Griffin NO 1960 (4) SA 798 (W): dictum at 799C approved

Cinemark (Pty) Ltd v Transkei Hotel 1984 (2) SA 332 (W): followed

Clarke v Klosser 1917 CPD 75: dictum at 77 - 8 approved

Dunlop South Africa Ltd v Orkaz (Pty) Ltd 1975 (1) SA 912 (W): applied

Du Preez v Philip-King 1963 (1) SA 801 (W): dictum at 803A applied

Ellerton Syndicate v Hutchings (1893) 3 CTR 124: referred to

Ellis v Morgan; Ellis v Dessai 1909 TS 576: dictum at 582 applied

Elscint (Pty) Ltd v Mobile Medical Scanners (Pty) Ltd 1986 (4) SA 552 (W): dictum at 557E - 558C approved

Estate Brownstein v Commissioner for Inland E Revenue 1957 (3) SA 512 (A): dictum at 524A - B applied

Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A): dicta at 258D - F and 259B applied

Fielding v Sociedade Industrial de Oleos Limitada 1935 NPD 540: applied

Frenkel & Co v Hewitt 1926 NPD 265: applied

Ghomeshi-Bozorg v Yousefi 1998 (1) SA 692 (W): distinguished F

Halse v Warwick 1931 CPD 233: dictum at 239 applied

Himelsein v Super Rich CC and Another 1998 (1) SA 929 (W): discussed and dictum at 936H approved

Innes-Grant v Kelsey 1924 NPD 268: applied

Irving & Co v Dreyer 1921 CPD 185: approved

Johnson v Johnson 1930 AD 101: dictum at G 109 applied

Kasimov and Another v Kurland 1987 (4) SA 76 (C): considered

King & Son v Dewjbeebhoy Jamel (1887) 8 NLR 129: approved

Kopelowitz v Auerbach (1907) 24 SC 567: dictum at 569 approved

Lecomte v W & B Syndicate of Madagascar 1905 TH 296: applied

Lecomte v W & B Syndicate of Madagascar 1905 TS 696: applied

Mediterranean Shipping Co v Speedwell Shipping H Co Ltd and Another 1986 (4) SA 329 (D): referred to

MT Tigr: Owners of the MT Tigr and Another v Transnet Ltd t/a Portnet (Bouygues Offshore SA and Another Intervening) 1998 (3) SA 861 (SCA): dictum at 868C applied

Muller v Möller and Another 1965 (1) SA 872 (C): dictum at 876D - E approved I

Negro v SA Railways 1911 TPD 979: dictum at 981 approved

Otto v Schurink 1911 TPD 367: dictum at 373 - 5 approved

Oxland v Key (1898) 15 SC 315: dictum at 317 - 18 approved

Pretoria City Council v Levison 1949 (3) SA 305 (A): compared

The Republic of Liberia and Another v Gulf Oceanic Inc and Others [1985] 1 Lloyd's Rep 539 (CA): dictum at 547 - 8 applied J

2000 (1) SA p359

Rosenberg and Another v Mbanga and Others A (Azaminle Liquor (Pty) Ltd Intervening) 1992 (4) SA 331 (E): approved

Salkinder v Van Zyl & Buissinne 1922 CPD 59: applied

Sandock Austral Ltd v Exploitation Industrielle et Commerciale-Bretic 1974 (2) SA 280 (D): applied

Schunke v Taylor and Symonds (1891) 8 SC 103: applied

Siemens Ltd v Offshore Marine Engineering B Ltd 1993 (3) SA 913 (A): dictum at 916E - H applied

Simon NO v Air Operations of Europe AB and Others 1999 (1) SA 217 (SCA): referred to

Slabbert v Herbst 1981 (4) SA 257 (NC): not followed

Sonia (Pty) Ltd v Wheeler 1958 (1) SA 555 (A): dictum at 563C applied

Stoffels v James (1907) 24 SC 701: applied

Thermo-Radiant Oven Sales (Pty) Ltd v C Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A): dicta at 301A, 301G - 302C, 306F - H, 307A and 309A - 310A applied

Towers v Paisley 1963 (1) SA 92 (E): dictum at 94G applied

Ueckermann v Feinstein 1909 TS 913: dictum at 920 approved

Utah International Inc v Honeth and D Others 1987 (4) SA 145 (W): dictum at 147E - G approved

Vaughan & Co Ltd v Delagoa Bay Engineering Works Ltd 1919 WLD 94: dictum at 95 - 6 applied

Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd 1985 (3) SA 633 (D): distinguished but dicta at 637H and 640A - B approved

Veneta Mineraria Spa v Carolina Collieries E (Pty) Ltd (in Liquidation) 1987 (4) SA 883 (A): explained and distinguished

Venter v Venter 1970 (1) SA 11 (T): dictum at 13A - B applied

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