Ex parte Acrow Engineers (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Blackwell J, Steyn J and Rumpff J
• Judgment Date: 24 February 1953
• Court: Transvaal Provincial Division
• Hearing Date: 24 February 1953

B Blackwell, J.:

In December last the applicant company applied to this Court for an order attaching ad fundandam jurisdictionem 108 tons of steel lying at Vanderbijl Park in order to found an action which the applicant intended bringing against a German firm, Nordstahl G.M.B.H. C The application was heard by ROPER, J., and dismissed because he was of the opinion that the applicant company had not made out a prima facie case. The matter comes before us on appeal to-day.

Mr. Colman, for the appellant company, has drawn the attention of this D Court to what may be described as the leading authority on the considerations which would govern a South African court when asked to make an order attaching the property of a non-resident in order to found jurisdiction. The case is Lecomte v W. and B. Syndicate of Madagascar, 1905 T.S. 696, and the extract from the judgment of SOLOMON, J., which I E now propose to read is to be found at p. 704. He says this:

'Now I quite agree with the argument addressed to us by Mr. Leonard, that in an application of this nature the Court is not entitled to enter into the merits of the case; but at the same time, if upon the facts stated by the respondents themselves or upon facts as to which there is no dispute, we are driven to the conclusion that no action F would lie at the suit of the respondents, we are in my opinion not only justified, but bound to express that opinion at once, and to put an end in limine to exceptional proceedings of this nature, which can only be justified upon the ground that prima facie the respondents have a good cause of action against the applicant.'

(It will be remembered that this was an appeal and that where the G learned Judge speaks of the respondents he means the applicants in the Court below.)

This Court endorses what was said in that case. The remedy of attachment ad fundandam jurisdictionem in order to create jurisdiction in these Courts, which might otherwise not exist, is an exceptional remedy; it should be applied with care and caution; and if, on the facts as H revealed either in the petition, as was done in this case, or after hearing both sides, the Court comes to the conclusion that prima facie the applicant has not made out his case, then it should not grant an order of attachment, or, if it had granted such an order, it should set it aside on the return day.

What are the facts in the present case? The applicant company apparently conducts...