Frank Wright (Pty) Ltd v Corticas 'BCM' Ltd

• Jurisdiction: South Africa
• Judge: Searle J
• Judgment Date: 28 September 1948
• Citation: 1948 (4) SA 456 (C)
• Hearing Date: 06 August 1948
• Court: Cape Provincial Division

Searle, J.:

Applicant, a proprietary company duly registered with limited liability under the laws of the Union of South Africa and carrying on business in Johannesburg, petitions this Court for an order against respondent, a cork manufacturing company of Lisbon, Portugal,

(a)

attaching ad fundandam jurisdictionem three consignments of cork tiles alleged to be the property of respondent and presently situated in certain warehouses in Cape Town, and (b) granting petitioner leave to sue respondent by edictal citation for (i) the repayment of £1,710, being the price paid in respect

Searle J

of the purchase of certain of these cork tiles; (ii) £356 charges disbursed in obtaining possession of the aforesaid tiles; and (iii) £309 damages by way of loss of profits resulting from respondent's breach of contract.

The petition sets out that on 2nd March, 1948 the applicant bought from respondent per cable confirmed by written indents three consignments as per samples of one thousand square yards of cork tiles consisting of the consignment covered by indent No. 296 - 'to be shipped and delivered C.I.F. through Durban or Lourenco Marques' and the consignments covered by indents No. 295 and No. 297 'to be shipped and delivered C.I.F. through Cape Town'. Shipment in each case was duly effected after payment of the price in terms of the contract and the goods covered by indent No. 296 were received in Johannesburg on 27th May, 1948, and those covered by Nos. 295 and 297 in Cape Town on 19th May, 1948. On inspection it was discovered that in each consignment 90 per cent. of the tiles were not in accordance with sample, were not of merchantable quality and were defective in a number of specified respects. The applicant accordingly repudiated the sale in respect of each consignment and rejected the tiles, but respondent refused to accept cancellation or to refund against return of the tiles the purchase price of £1,710. Applicant further avers that it has incurred £356 disbursements in respect of rai%lage, clearance, etc., of the said tiles and £309 loss of profits on account of the defective delivery, 'which profit was in the contemplation of the parties at the time of the sale'

The question for determination is whether or not this Court has in the circumstances the power to grant the orders prayed.

The tiles within the jurisdiction of this Court are those covered by indents No. 295 and 297, those covered by No. 296 being situated in the Transvaal. However, in addition to these three consignments, the petition alleges that there are a further 1,000 square yards of tiles in a bonded warehouse in Cape Town which respondent consigned to applicant in excess of the tiles ordered and to which I shall refer as the 'excess tiles'. On applicant refusing to accept these 'excess tiles' respondent requested that applicant deliver them to the order of respondent's local representative at respondent's cost. The petition specifically alleges that all the tiles within the jurisdiction are the property of the respondent and thus attachable ad fundandam jurisdictionem at the instance of applicant.

Searle J

Whether or not goods bought under a C.I.F. contract, which have been paid for and delivered still remain the property of the seller for the purposes of attachment ad fundandam jurisdictionem, if the purchaser after inspection claims to reject them as not being in accordance with the contract description, or not up to the standard of sample, the property in a consignment of goods in excess of the purchaser's orders clearly must remain in the consigner, as the consignee had at no time accepted delivery with intention of becoming owner.

Accordingly if the present case is one proper for an attachment ad fundandam jurisdictionem, it will be unnecessary to consider in whom the ownership in the goods covered by indents No. 295 and No. 297 rests, as it is manifest that the attachment of the 'excess tiles' alone would suffice for the purposes of the order sought.

The respondent is a peregrinus resident and carrying on business in Portugal and accordingly it is essential for the applicant to establish a right to the order of attachment now sought, which can only exist if, after such attachment, the Court will have jurisdiction to try the action contemplated. This Court has jurisdiction in a suit by an incola against a peregrinus, where the person or goods of the latter have been attached ad fundandam jurisdictionem, by reason of the attachment alone; and it is not necessary that the contract should have been entered into within the jurisdiction, or that the place of performance should be within the jurisdiction, or that the subject matter of the action should be situated within the jurisdiction - vide Cape Explosives Works, Ltd v SA Oil & Fats Industries, Ltd. (1921 CPD 244); Halse v Warwick (1931 CPD 233), etc. The residence of a company is, however, determined by the place where it carries on business or by the locality of its registered office - vide Appleby (Pty.), Ltd v...