Jamieson v Sabingo

• Jurisdiction: South Africa
• Judge: Nienaber JA, Farlam JA, Navsa JA, Mthiyane JA and Lewis AJA
• Judgment Date: 27 March 2002
• Citation: 2002 (4) SA 49 (SCA)
• Docket Number: 329/2000
• Hearing Date: 21 February 2002
• Counsel: A J Horwitz SC (with him J Kaplan) for the appellant. B K Pincus SC (with him S P Pincus) for the respondent.
• Court: Supreme Court of Appeal

Farlam JA:

[1] This is an appeal from a judgment of Willis J, sitting in the Witwatersrand Local Division of the High Court, who discharged a rule nisi granted on an ex parte basis in favour of the appellant by Malan J on 13 July 1999. The judgment of the I Court a quo has been reported: see Ex parte Jamieson: In re Jamieson v Sabingo 2001 (2) SA 775 (W).

[2] The appellant is an incola of the area of jurisdiction of the Court a quo. The respondent is a peregrinus of South Africa as a whole, described by this Court (in Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in J

Farlam JA

Liquidation) 1987 (4) SA 883 (A) at 886C) as 'an out-and-out peregrinus'. He had obtained judgment in the Witwatersrand A Local Division on 30 April 1999 against a company known as Madiba Air (Pty) Ltd for the rand equivalent of $142 000, plus interest and costs on the scale as between attorney and client.

[3] The rule nisi granted on 13 July 1999 was part of an order which read as follows: B

'1.

That leave be granted to applicant to institute action against Dr Amindo Cesar Sabingo in terms of the particulars of claim being annexure A hereto (''the action''), within two weeks of date of this order.

2.

That the right, title and interest in the judgment of Dr Amindo Cesar Sabingo against Madiba Air (Pty) Ltd under case No 97/29219 of this Court, a certified true copy whereof is annexed hereto marked C ''B'', be placed under attachment to found jurisdiction in the action pending the final determination of the action.

3.

That leave be granted to the applicant to institute the action by way of edictal citation. D

4.

That this order and the citation be served on Dr Amindo Cesar Sabingo as provided for in the Uniform Rule of Court 4 at Maboque, Rua Gastao de Sousa Dias VI-990, Luanda, Angola.

5.

That Dr Amindo Cesar Sabingo be allowed two months from date of this order within which to enter an appearance to defend the action.

6.

That para 2 above will operate as a rule nisi returnable two months from the date of this order. E

7.

That the costs of this application be costs in the main action.'

[4] The order for the attachment of the respondent's 'right, title and interest' in the judgment against Madiba Air (Pty) Ltd granted on 13 July 1999 was executed only on 7 September 1999. On 19 August 1999, some two and a half weeks before this took place, attorneys acting on behalf of the respondent wrote a F letter to the appellant's attorneys, which contained the following:

'. . . in light of the fact that we represent our client in South Africa, we confirm that our client hereby consents to the jurisdiction of the Witwatersrand Local Division of the High Court in respect of your client's action and our client also appoints our offices as his G chosen domicilium citandi et executandi for all purposes. There is accordingly no need for you to confirm the order already obtained, or indeed to serve the order for the attachment of the judgment, and there is also no need for the writ of attachment which must have been issued by yourselves in respect thereof to be executed by the Sheriff. An attachment is now not necessary or competent under the circumstances.' H

[5] The claim which forms the subject-matter of the action instituted by the appellant against the respondent was based on a contract allegedly concluded by the appellant and the respondent for the sale and installation by the appellant at a hotel in Luanda, Angola, of a water purification system, a power generator and a vibrating compact roller. Although the appellant alleged in his I founding affidavit that the contract between the respondent and himself was an oral one entered into at Luanda, he annexed a copy of a quotation he allegedly sent by facsimile transmission to the respondent in Angola together with a copy of a letter which the respondent had sent, also by facsimile transmission, to him in J

Farlam JA

Johannesburg in which his quotation was accepted. Although Willis J A found (at 777G) that the contract was concluded in Luanda, when the matter was argued before us, Mr Horwitz, who appeared with Mr Kaplan for the appellant, conceded that the case had to be approached on the basis that the contract was concluded in Johannesburg when the appellant received the respondent's letter accepting his quotation. In my opinion, this concession was correctly made. Parties who communicate by telephone, telex or telefacsimile B transmission are 'to all intents and purposes in each other's presence' (to use an expression used by Parker LJ in Entores Ltd v Miles Far East Corporation [1955] 2 QB 327 (CA) ([1955] 2 All ER 493) at 337) and the ordinary rules applicable to the conclusion of contracts made by parties in each other's physical presence apply, C viz the contract comes into existence when and where the offeree's acceptance is communicated to and received by the offeror. This has been held to be the legal position in the case of contracts concluded over the telephone (Tel Peda Investigation Bureau (Pty) Ltd v Van Zyl 1965 (4) SA 475 (E), approved by this Court in S v Henckert 1981 (3) SA 445 (A) at 451B) and contracts concluded by telex (Entores Ltd v Miles Far East Corporation D (supra), approved by the House of Lords in Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC 34). By parity of reasoning the same principle must apply where the parties are in communication with each other by telefacsimile transmission (see Gunac Hawkes Bay (1986) Ltd v Palmer [1991] 3 NZLR 297 (HC)). E

[6] It follows from this concession that when the rule nisi was granted it was competent for the appellant to have sought the attachment of the respondent's property only in order to confirm jurisdiction and not to found it. F

[7] As appears from his reported judgment (at 777H - J) Willis J discharged the rule nisi because of the respondent's voluntary submission to the jurisdiction of the Witwatersrand Local Division on 19 August 1999 and because of the decision of a Full Bench of that Division in American Flag plc v Great African G T-Shirt Corporation CC; American Flag plc v Great African T-Shirt Corporation CC: In re Ex parte Great African T-Shirt Corporation CC 2000 (1) SA 356 (W), by which he was bound. In the American Flag case it was held that, even where there was no other causa jurisdictionis (such as that the contract sued on was concluded in the court's area of jurisdiction), 'where the plaintiff was an incola in an action for money submission to the jurisdiction by the peregrine defendant was effective' (at 365E - I). H

[8] In the American Flag case it was further held...