Curbera v SA Pesquera Industrial Gallega

• Jurisdiction: South Africa
• Judge: Diemont J
• Judgment Date: 16 May 1969
• Hearing Date: 12 May 1969
• Court: Cape Provincial Division

Diemont, J.:

The applicant in this matter seeks an order attaching a Spanish fishing vessel now moored in the harbour of Walvis Bay in South-West Africa.

H Applicant is a Spanish ship owner's agent residing at Milnerton in the Cape, while the respondent is a company registered according to the laws of Spain and carrying on business as shipping owners at Vigo in Spain.

Applicant alleges that he was employed by the respondent as its agent and representative in Cape Town until 31st March, 1969. At that date respondent was indebted to applicant in the sum of R4,825 in respect of certain arrear salary and bonuses. It is alleged further that respondent

Diemont J

has declined to make payment of the amounts due and has given no grounds for repudiating liability. The agreement was entered into in Spain but was to be performed in Cape Town. Applicant states further in his supporting affidavit:

'6.

That the respondent is the owner of a vessel, Frederico A Barreras, which is due to call at Walvis Bay Harbour on 7th May, 1969. I respectfully submit that, unless this vessel is attached in order to found this Honourable Court's jurisdiction in respect of my aforesaid claim against the respondent, I will suffer considerable prejudice in not being able to pursue my claim against the respondent in the South African Courts.'

Applicant accordingly seeks an order attaching the vessel, Frederico Barreras, ad fundandam jurisdictionem in an action to be instituted in B this Court.

The crisp issue which arises in this case is whether I have jurisdiction to order the attachment of a vessel in South-West African waters. Although the port and environs of Walvis Bay have for many years C occupied the somewhat anomalous position of being part of the Cape Province, it is clear that the area falls under the jurisdiction of the South-West Africa Division of the Supreme Court. The First Schedule to the Supreme Court Act, 59 of 1959, provides that the seat of the Court shall be at Windhoek and its area of jurisdiction shall include 'the port and settlement of Walvis Bay'.

D But that is not an end to the matter. Mr. Hoberman who appears for the applicant, points out that the civil process of this Court runs throughout the Republic. Thus in Bock and Son (Pty.) Ltd v Wisconsin Leather Co., 1960 (4) SA 767 (C), it was held that an incola of the Cape Province could attach goods in Natal belonging to a peregrinus to E found jurisdiction. The correctness...