Ewing McDonald & Co Ltd v M & M Products Co

• Jurisdiction: South Africa

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

1991 (1) SA p252

Citation	1991 (1) SA 252 (A)
Court	Appellate Division
Judge	Van Heerden JA, Smalberger JA, Nicholas AJA, Friedman AJA and Nienaber AJA
Heard	September 10, 1990
Judgment	September 28, 1990

Flynote : Sleutelwoorde I

Jurisdiction — Attachment to found or confirm jurisdiction — Plaintiff an incola and defendant a peregrinus, being an American company — J Plaintiff, in order to found or confirm jurisdiction for action

1991 (1) SA p253

A against defendant, having obtained order in Witwatersrand Local Division attaching defendant's rights in trade marks registered with Registrar of Trade Marks in Pretoria within jurisdiction of Transvaal Provincial Division — Order later set aside by former Court which held that it could not order attachment to found or confirm jurisdiction outside its B area of jurisdiction — That decision confirmed on appeal — Section 26 of Supreme Court Act 59 of 1959 did not give Court of one Division power to attach property of person in area of another Division.

Headnote : Kopnota

The appellant company was the cessionary of a claim against the first respondent for damages for breach of contract. The first respondent was C a corporation registered in the United States of America with its principal place of business in Atlanta, Georgia, and was accordingly a peregrinus of the Republic. The appellant was an incola of the Witwatersrand Local Division. The agreement giving rise to the cause of action had been concluded elsewhere but it was to be implemented throughout South Africa so that Johannesburg was a locus solutionis and the Witwatersrand Local Division a forum solutionis. In order to pursue D its claim in that Court the appellant attempted to attach property of the respondent in order to vest the Court with jurisdiction. An order was granted authorising the attachment ad fundandam (or alternatively ad confirmandam jurisdictionem) of the first respondent's right, title and interest in and to certain trade marks held by it and registered in South Africa and the trade marks were later attached pursuant to the order. However, because all the trade marks were registered in Pretoria E and as such fell outside the jurisdiction of the Witwatersrand Local Division, the first respondent was subsequently granted an order reversing the previous attachment order which was set aside. The appellant appealed against this latter order. It was contended on behalf of the appellant that the doctrine of effectiveness lay at the root of jurisdiction and a judgment would not be effective if it yielded an empty result. A judgment obtained against a foreign peregrinus who was absent from the jurisdiction and owned no assets in it would be an empty F judgment. The attachment of an asset of his within the jurisdiction would render the judgment effective since execution could be levied against it and that attachment would therefore make the peregrinus amenable to the Court's jurisdiction. Since the enactment of s 26(1) of the Supreme Court Act 59 of 1959 the Court could now make an order which could be executed on assets found outside the boundaries of its jurisdiction, thereby rendering its judgment fully effective and, as effectiveness was the basis of a Court's jurisdiction and because an G attachment after judgment would render its judgment effective, an attachment before judgment would equip the Court with the required jurisdiction to try the matter.

Held, that although effectiveness was an essential feature of jurisdiction and a judgment would not be effective if an asset outside the jurisdiction but within the country were attached in execution, the reverse (ie that since such an asset would be capable, after the suit, H of attachment for the sake of levying execution it was likewise capable before the suit of attachment for the sake of conferring jurisdiction) was not equally valid: this was to confuse the sequel of a competent judgment with a prerequisite for its competence.

Held, further, that while effectiveness might be the rationale for jurisdiction it was not necessarily the criterion for its existence.

Held, further, that s 26 of the Supreme Court Act did not extend the I jurisdiction of the Court so as to enable it to order an attachment of property situated outside its own area which it was otherwise not empowered to do.

Held, accordingly, that the Court a quo had correctly held that it could not order the attachment of the trade marks outside its area of jurisdiction and therefore the appeal had to fail.

The decision in the Witwatersrand Local Division in Ewing McDonald & Co Ltd v M & M Products Co J confirmed.

1991 (1) SA p254

Case Information

Appeal from a decision in the Witwatersrand Local Division (MacArthur J). The facts appear from the reasons for A judgment.

A J Horwitz SC (with him R Hutton) for the appellant referred to the following authorities: Ferguson and Another v Pedersen 1926 WLD 246; Koppe & Co v Accreylon Co, Inc 1948 (3) SA 591 (T); Hare v Banimar Shipping Co SA 1978 (4) SA 578 (C); Tedecom Electrical Engineering Services (Pty) Ltd v Berriman B 1982 (1) SA 520 (W); Uniroyal Incorporated v Thor Chemicals SA (Pty) Ltd 1984 (1) SA 381 (D); Bock & Son (Pty) Ltd v Wisconsin Leather Co 1960 (4) SA 767 (C); Curbera v SA Pesquera Industrial Gallega 1969 (3) SA 296 (C); Ex parte Gerald B Coyne (Pty) Ltd: In re Gerald B Coyne (Pty) Ltd v Sinco Trading Co Ltd 1971 (1) SA 624 (W) C ; Estate Agents Board v Lek 1979 (3) SA 1048 (A); Steytler NO v Fitzgerald 1911 AD 295; T W Beckett & Co Ltd v H Kroomer Ltd 1912 AD 324; Veneta Mineraria SpA v Carolina Collieries (Pty) Ltd (in Liquidation) 1987 (4) SA 883 (A); Maritime and Industrial Services Ltd v Marcierta Compania Naviera SA 1969 (3) SA 28 (D); Murphy v Dallas 1974 (1) SA 793 (D); Prentice, Shaw and Schiess Inc v Government of the Republic of Bolivia D 1978 (3) SA 938 (T); Herbstein & Van Winsen The Civil Practice of the Superior Courts in SA 3rd ed at 782 - 3; Wessels History of the Roman Dutch Law at 674 - 94; Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A); Lecomte v W and B Syndicate of Madagascar 1905 TS 696; Estate Brownstein v Commissioner for Inland Revenue E 1957 (3) SA 512 (A); Bodenstein 1917 SALJ 193; The Owners, Master and Crew of the SS 'Humber' v The Owners and Master of the SS 'Answald' 1912 AD 546; Voet 2:4:22; Sonia (Pty) Ltd v Wheeler 1958 (1) SA 555 (A); Hugo v Wessels 1987 (3) SA 837 (A); Pollak The SA Law of Jurisdiction at 24; South African Railways and Harbours v Chairman, Bophuthatswana Central Road Transportation Board, and Another F 1982 (3) SA 24 (B); Spier Estate v Die Bergkelder Bpk and Another 1988 (1) SA 94 (C); Halse v Warwick 1931 CPD 233; Banks v Henshaw 1962 (3) SA 464 (D); Mediterranean Shipping Co v Speedwell Shipping Co Ltd and Another 1986 (4) SA 329 (D); Beck 1985 THRHR 305; Gulf Oil Corporation v Rembrandt Fabrikante en Handelaars (Edms) Bpk G 1963 (2) SA 10 (T); Ward v Burgess and Another 1976 (3) SA 104 (Tk); Frank Wright (Pty) Ltd v Corticas 'BCM' Ltd 1948 (4) SA 456 (C); 1969 Annual Survey 409; 1972 Annual Survey 415; 1978 Annual Survey 688; 1979 Annual Survey 504; Lippert v De Marillac (1894) 11 SC 312; Dickinson & Fisher v Arndt & Cohn 1908 NLR 206; Cassel v Carter 1908 TH 160; Florida Consolidated Mines Ltd v The Standard Bank of SA Ltd H 1927 WLD 55; Rosenstrauch v Korbf 1931 GWLD 102; Davis v Isaacs & Co and Another 1940 CPD 497; Ex parte Acrow Engineers (Pty) Ltd 1953 (2) SA 319 (T); Cochran v Miller 1965 (1) SA 162 (D); Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd 1977 (4) SA 682 (C); Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd 1978 (2) SA 391 (C); Lipschitz v Dechamps Textiles GmbH and Another I 1978 (4) SA 427 (C); Butler v Banimar Shipping Co SA 1978 (4) SA 753 (SE); Inter-Science Research and Development Services (Pty) Ltd v Republica Popular De Mocambique 1980 (2) SA 111 (T); C E Heath & Co (Marine) Ltd v Crimson Nagivation Corp SA 1988 (1) SA 457 (D); Italtrafo SpA v Electricity Supply Commission 1978 (2) SA 705 (W); Bradbury Gretorex Co (Colonial) Ltd v Standard Trading Co (Pty) Ltd J 1953

1991 (1) SA p255

A (3) SA 529 (W); Sackoor v Graaff 1909 TS 22; Transol Bunker BV v MV Andrico Unity and Others 1987 (3) SA 794 (C); Roberts Construction Co Ltd v Willcox Bros (Pty) Ltd 1962 (4) SA 326 (A).

B R Southwood SC (with him A Horak) for the first respondent referred to the following authorities: Sportshoe (Pty) Ltd v Pep Stores (SA) (Pty) Ltd 1990 (1) SA 722 (A); Rembrandt Fabrikante en Handelaars (Edms) Bpk v Gulf Oil Corporation B 1963 (3) SA 341 (A); Gulf Oil Corporation v Rembrandt Fabrikante en Handelaars (Edms) Bpk 1963 (2) SA 10 (T) at 22A - E; Spier Estate v Die Bergkelder Bpk and Another 1988 (1) SA 94 (C); Boyd v Commissioner for Inland Revenue 1951 (3) SA 525 (A); Lamb v Commissioner for Inland Revenue 1955 (1) SA 270 (A); Uniroyal Incorporated v Thor Chemicals SA (Pty) Ltd C 1984 (1) SA 381 (D); Pollak The South African Law of Jurisdiction at 122; Anderson & Coltman Ltd v Universal Trading Co 1948 (1) SA 1277 (W); Banco De Mocambique v Inter-Science Research and Development Services (Pty) Ltd 1982 (3) SA 330 (T); Elscint (Pty) Ltd and Another v Mobile Medical Scanners (Pty) Ltd D 1986 (4) SA 552 (W); Republica Popular De Mocambique v Main Spares Acc (Pty) Ltd 1986 (4) SA 929 (W); Estate Agents Board v Lek 1979 (3) SA 1048 (A); Steytler NO v Fitzgerald 1911 AD 295; Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A); Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd ed at 35, 784; Wright v Stuttaford & Co 1929 EDL 10; T W Beckett & Co Ltd v H Kroomer Ltd 1912 AD 324; Tedecom Electrical Engineering Services...