Ex parte Gerald B Coyne (Pty) Ltd: In re Gerald B Coyne (Pty) Ltd v Sinco Trading Co, Ltd

• Jurisdiction: South Africa
• Judge: Hiemstra J
• Judgment Date: 21 October 1970
• Hearing Date: 20 October 1970
• Court: Witwatersrand Local Division

Hiemstra, J.:

The applicant is a company carrying on business E in Johannesburg. The respondent is a company incorporated in accordance with the laws of Japan and having its registered office in Osaka, Japan. As such it is a peregrinus in the Republic of South Africa. The applicant alleges that the respondent owes it a sum of R1,242. The respondent admits the indebtedness, but sets up a defence of set-off. The applicant F denies the set-off and now wishes to attach certain goods in a warehouse at Durban, to found jurisdiction. Application was made to the Natal Provincial Division for an attachment order, but it was refused on the basis that the said Court had no jurisdiction. According to counsel no reasons were given, but the conclusion was apparently based on the fact that the applicant was not an incola of the Natal Province.

G I see no reason why it is necessary that the applicant should go to the Court of the Province of which he is an incola. Be that as it may, I agree with the decision in Bock & Son (Pty.) Ltd. v. Wisconsin Leather Co., 1960 (4) SA 767 (C), which is on the facts practically on all fours with the present case. It H was there held that where an incola of the Cape Province applied for leave to attach certain goods in Natal belonging to a peregrinus to found jurisdiction, the application should be granted in view of the provisions of sec. 36 (1) of the Supreme Court Act, 59 of 1959. The decision has been criticised on the basis that it overlooked sec. 26 of the same Act, but that section has since been amended to provide that a writ of the Registrar of any Division runs throughout the country. The criticism no longer applies.

The following order is given:

Hiemstra J

(a)

the Sheriff of this Court or his lawful deputy is directed to attach the materials situated at the State Warehouse of Cohen and Goldman at Durban, being the property of the respondent ad fundandam jurisdictionem in an action to be instituted by the applicant against A the respondent for payment of the sum of R1,206, interest thereon at the rate of 6 per cent per annum a tempore morae and costs of suit;

(b)

the Sheriff or his lawful deputy is directed to attach the property of the respondent to the value of R1,206 in respect of the applicant's capital claim and R500 B as security for applicant's claims for costs;

(c)

the...