Lipschitz v Dechamps Textiles GmbH and Another

• Jurisdiction: South Africa
• Judge: Van Heerden J
• Judgment Date: 28 July 1978
• Hearing Date: 11 August 1977
• Court: Cape Provincial Division

Van Heerden J:

This is the return day of a rule nisi, operating as an interim order of attachment, calling on respondents to show cause why an order should not be granted:

(a)

attaching ad fundandam jurisdictionem, alternatively, ad confirmandam jurisdictionem:

(aa)

the shares in and shareholders' loan claims of first H and second respondents against a company known as Brandenberg (Pty) Ltd, with registered offices at care of Messrs Alex Aiken & Carter, Barclays Bank Building, Adderley Street, Cape Town;

(bb)

first respondent's claim in an amount of R1 500 against a company known as SA Yarns (Pty) Ltd, with registered offices at care of J T Fairhead & Co, Utilitas Building, 1 Dorp Street, Cape Town,

pending an action to be instituted by applicant against respondents for payment of

Van Heerden J

(1)

the sum of R100 000 as and for damages;

(2)

interest on the aforesaid sum at the rate of 11 per cent per annum from date of judgment to date of payment;

(3)

A alternative relief;

(4)

costs of suit.

(b)

Directing that the costs of this application be costs in the cause in the said action.

The claim for damages to be instituted by applicant against first and second respondents is allegedly based upon the repudiation by the B respondents of an alleged oral agreement entered into by the parties in and during April 1973 at Aachen, West Germany, in terms whereof the applicant and respondents were to participate in a joint venture for the spinning and weaving of worsted yarns through the medium of the company SA Yarns (Pty) Ltd which repudiation was accepted by applicant in writing at C Cape Town on 30 January 1974. As far as the alleged oral agreement is concerned it has been advanced on behalf of both respondents that, whereas certain negotiations had taken place between representatives of first respondent and applicant, no final agreement had been reached and, that in any event second respondent had neither been a party to any negotiations D which had taken place with applicant nor to any contract which may have been arrived at.

As far as the attachment of shares and shareholders' loan claims in the company, Brandenberg (Pty) Ltd, is concerned it was admitted on behalf of second respondent that it was a valid attachment but denied that first respondent held any shares in the said company or had any claim to the E shareholders' loan account.

With reference to the attachment of first respondent's claim of R1 500 against SA Yarns (Pty) Ltd it was alleged on behalf of first respondent that the debt which arose prior to 7 December 1973, on which date payment was demanded but refused, had become extinguished by prescription in and during December 1976 in terms of s 10 (1) of Act 68 of 1969.

F It was accepted by counsel acting on behalf of applicant that, in order to obtain a final order of attachment, the onus rested upon applicant to show (a) a prima facie case on the merits of his claim, and (b) on a balance of probabilities that the property to be attached belongs to the respondents who are both peregrini domiciled in...