Anderson & Coltman Limited v Universal Trading Co

• Jurisdiction: South Africa
• Judge: Clayden J
• Judgment Date: 22 January 1948
• Citation: 1948 (1) SA 1277 (W)
• Hearing Date: 15 January 1948
• Court: Witwatersrand Local Division

Clayden, J.:

On 23rd May, 1946, the applicant company, which is an English company and which will be referred to as the seller, sold through its South African agent to the respondent partnership, which will be referred to as the buyer, a number of aluminium stewpans. The order form provided for confirmation and payment by Walker Brothers, London, the buyer's London shippers, and the terms were stated to be 'F.O.B. U.K. Port'. The sellers' packer delivered crates containing stewpans on board the s.s. Riebeck Castle at Southampton, England, and the price was paid. The goods arrived at the premises of the buyer in November, 1946, and were immediately rejected by the buyer because delivery was alleged to be late, and because representations as to the quality of the goods alleged to have been made by the sellers' agent were alleged to be false. Late delivery is no longer an issue in this case.

Clayden J

On 27th May, 1947, on the application of the buyer, an order was granted for the attachment of the goods to found jurisdiction in a claim for a refund of the price, and the buyer was given leave to sue by edictal citation. Thereafter action was instituted.

The seller now applies to set aside the attachment, the order of Court granting leave to sue by edict, the edictal citation, and the ground for this application is that the goods attached are not the property of the seller, or alternatively, that there is a dispute as to whether they belong to the seller or to the buyer, that that dispute cannot be settled on affidavit, and that there should be no attachment until the buyer has shown that the goods do in fact belong to the seller.

The first matter to be decided is whether the procedure adopted by the applicant is correct. It is contended that it should have filed a plea to the jurisdiction. Now the order for attachment is granted ex parte in many cases, and if the peregrinus can put before the Court facts which show that the order was wrongly granted, because the goods attached are not his, I can see no reason why he should be obliged to submit himself to the jurisdiction of the Court, which was only obtained by attaching those goods, even in the preliminary stages of an action. In such a case, had all the facts been before the Court the attachment would not have been made, and the action could not have been brought. When he hears of the attachment the peregrinus must, I consider, be entitled to have his contentions considered. The order of attachment has been issued, and a proper method of reopening the matter is, I think, to apply to set aside that order. In Knight, Ltd v Lensvelt (1923 CPD 444) an application of this type was brought by a third person for the release of goods which had been attached and which he claimed as his. He was not a party to the action and could not adopt any other course. In Pearks Stores (Africa), Ltd v Lipschitz (18 C.T.R. 614) an application to set aside an attachment to found jurisdiction was brought by the defendant in the action, based on the ground that the goods were not his. The question of the procedure was not considered but the order was granted with no opposition except in regard to costs. These cases point to the correctness of the procedure adopted in this case.

Since the...