Hare v Banimar Shipping Co SA

• Jurisdiction: South Africa
• Judge: Watermeyer J and Vivier J
• Judgment Date: 16 June 1978
• Hearing Date: 02 June 1978
• Court: Cape Provincial Division

Vivier J:

The question which arises for decision in this case is whether this Court has jurisdiction to grant an order for the attachment of a ship which is at the date of the order outside its area of jurisdiction but within the Republic of South Africa, in order to found jurisdiction in an D action which applicant intends instituting against respondent.

On 2 June 1978 a rule nisi was issued, operating as a temporary interdict, for the attachment of the ship Araxos then at anchor in Port Elizabeth harbour. The confirmation of the rule was opposed on the return day on the ground, inter alia, that this Court had no jurisdiction to order the attachment. This objection was upheld and the rule discharged with costs, E for the reasons which we announced would follow. These are the reasons.

For present purposes the facts giving rise to the application need not be stated in any detail. It is sufficient to say that I accept that the applicant is an incola of this Division, that the respondent is a peregrinus of the Republic as a whole, and that the cause of action, which F is one for damages for breach of contract, arose wholly outside the area of jurisdiction of this Court.

There are conflicting decisions of our Courts on the question now before us, the more recent ones all concerning the correct interpretation of s 26 (1) of the Supreme Court Act 59 of 1959, as substituted by s 5 of Act 85 of 1963. It is on this section that those decisions in favour of the G extension of the jurisdiction of one Division of the Supreme Court to order the attachment of property in the area of another Division to confirm or found jurisdiction have been based.

Section 26 (1) provides as follows:

"The civil process of a provincial or local division shall run throughout the Republic and may be served or executed within the jurisdiction of any division".

H Before considering the proper meaning of s 26 in its present form, it is necessary to refer to the earlier legislation and decisions of our Courts on the question.

Section 26 of the Supreme Court Act 59 of 1959, in its original form, replaced s 112 of the South Africa Act 1909 which was virtually in identical terms.

Section 112 of the South Africa Act provided as follows:

"The registrar of every provincial division of the Supreme Court of South Africa, if

Vivier J

thereto requested by any party in whose favour any judgment or order has been given or made by any other division, shall, upon the deposit with him of an authenticated copy of such judgment or order and on proof that the same remains unsatisfied, issue a writ or other process for the execution of such judgment or order, and thereupon such writ or other process shall A be executed in like manner as if it had been originally issued from the division of which he is registrar."

The only material difference between this section and s 26 of Act 59 of 1959, in its original form, was that the latter section required proof by affidavit that the original judgment or order had remained unsatisfied.

B In Ferguson and Another v Pedersen 1926 WLD 246 TINDALL J (as he then was) held that the Court had no jurisdiction to order the arrest of a peregrinus of the country as a whole in order to found jurisdiction, where at the time of the order the peregrinus was outside the Court's area of jurisdiction but inside the Union.

In dealing with the question of the Court's jurisdiction, the learned C Judge only considered s 6 of the Administration of Justice Act 27 of 1912, which dealt specifically with a writ of arrest in connection with civil proceedings, issued out of any Superior Court, where the respondent was in the Union but outside the Court's area of jurisdiction. This section provided that the Registrar of the Court would then transmit the writ to the proper officer at the place where the respondent was present, and that D officer would execute the writ in accordance with the law or Rule of Court of that place.

With regard to this section TINDALL J said the following at 247:

"That section, in my opinion, does not give the Court any greater powers than it had before in regard to the arrest of a defendant to found jurisdiction. It only provides facilities for executing a writ outside the E jurisdiction. It was intended to meet the contingency that after the granting of the order of arrest the defendant might have left the jurisdiction; the section does not empower the Court to arrest a person, who at the time of the granting of the order of arrest is outside the jurisdiction. In view of the union of the Provinces it may be argued that it is desirable that the Provincial Division of the Supreme Court should have such power; but in my opinion the power is not given by s 6."

F I should at this point also refer to two decisions in this Division, prior to the decision in Ferguson's case, where the meaning of s 6 of Act 27 of 1912 was considered.

In Ex parte Goldstein 1916 CPD 483 the applicant applied for an interdict restraining the respondent from parting with certain promissory notes and G money, where the respondent, as well as the notes and the money were at the time outside the Court's area of jurisdiction. The applicant relied on s 6 of Act 27 of 1912, and submitted that, if the interdict was disobeyed, the Court could grant an order for personal attachment for contempt of Court which could under s 6 be executed in any Province of the Union. It was also argued that in terms of s 112 of the South Africa Act the...