Hay Management Consultants (Pty) Ltd v P3 Management Consultants (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Scott JA, Cameron JA, Conradie JA, Heher JA and Patel AJA
• Judgment Date: 30 November 2004
• Citation: 2005 (2) SA 522 (SCA)
• Docket Number: 439/03
• Hearing Date: 23 November 2004
• Counsel: C M Eloff SC (with M T Glaeser) for the appellant. A Subel SC (with C G Lamont SC) for the respondent.
• Court: Supreme Court of Appeal

Hay Management Consultants (Pty) Ltd v P3 Management Consultants (Pty) Ltd
2005 (2) SA 522 (SCA)

2005 (2) SA p522

Citation	2005 (2) SA 522 (SCA)
Case No	439/03
Court	Supreme Court of Appeal
Judge	Scott JA, Cameron JA, Conradie JA, Heher JA and Patel AJA
Heard	November 23, 2004
Judgment	November 30, 2004
Counsel	C M Eloff SC (with M T Glaeser) for the appellant.; A Subel SC (with C G Lamont SC) for the respondent.

Flynote : Sleutelwoorde B

Jurisdiction — Submission to — Effect of — Peregrine defendant submitting to jurisdiction of Court in action by incola — No ground for jurisdiction required — Peregrine's consent to jurisdiction sufficient — Attachment ad fundandam jurisdictionem unnecessary. C

Jurisdiction — Submission to — Implied contractual submission — What amounts to — Weight attached to domicilium and choice of law clauses in contract as indicating parties' intention — On totality of evidence, probability raised that defendant intended submitting to jurisdiction of South African Court.

Jurisdiction — Submission to — Implied D contractual submission — Scope of — Submission extending beyond causes of action based on contract itself and including all causes of action having terms and performance of contract as their substance.

Headnote : Kopnota

An incola plaintiff instituted an action in the High E Court against a peregrine defendant for a judgment sounding in money. In order to found the Court's jurisdiction the plaintiff relied on an implied contractual submission to jurisdiction by the defendant. In a special plea to jurisdiction the defendant (1) raised the failure of the plaintiff to attach any of its property to found or confirm jurisdiction and (2) denied the implied submission.

Held, on the totality of the evidence, including the F domicilium and proper law clauses and the parties' ongoing business relationship, that the probability had been raised that the defendant had intended to submit to the jurisdiction of a South African court. (Paragraphs [14] - [15] at 526B - G.)

Held, further, that although the plaintiff's causes of action were not founded on the contract, it was nonetheless entitled to rely on the implied contractual submission as the parties' intention G had been that the submission cover all causes of action which had, as their substance, the terms and performance of the contract. (Paragraph [12] at 525H - I.)

Held, further, that, in the case of an incola plaintiff, submission by a peregrine defendant was sufficient to confer jurisdiction without an attachment ad fundandam jurisdictionem. (Paragraphs [24] at H 529I/J.)

Held, accordingly, that the appeal had to be dismissed. (Paragraph [27] at 530B/C.)

The decision in the Witwatersrand Local Division in P3 Management Consultants (Pty) Ltd v Hay Management Consultants (Pty) Ltd confirmed.

Cases Considered

Annotations

Reported cases I

American Flag plc v Great African 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): applied

Beverley Building Society v De Courcy and Another 1964 (4) SA 264 (SR): dictum at 270C - E applied J

2005 (2) SA p523

Ex parte Hay Management Consultants (Pty) Ltd A 2000 (3) SA 501 (W): dictum at 508G - I applied

Jamieson v Sabingo 2002 (4) SA 49 (SCA): dictum at 57I - 58I approved

Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W): referred to

Springle v Mercantile Association of Swaziland Ltd 1904 TS 163: referred to

Standard Bank Ltd v Butlin 1981 (4) SA 158 (D): referred to B

Ueckermann v Feinstein 1909 TS 913: dictum at 919 - 20 discussed and applied

Veneta Mineraria SPA v Carolina Collieries (Pty) Ltd (in Liquidation) 1987 (4) SA 883 (A): referred to.

Case Information

Appeal from a decision in the Witwatersrand Local Division (Rabie J). The facts appear from the reasons for judgment. C

C M Eloff SC (with M T Glaeser) for the appellant.

A Subel SC (with C G Lamont SC) for the respondent.

Cur adv vult. D

Postea (November 30).

Judgment

Heher JA:

[1] This is an appeal with leave of the Court a quo from a judgment of Rabie J, sitting in a trial in the E Witwatersrand Local Division, in which he dismissed a special plea to the jurisdiction of the Court with costs. The issue of jurisdiction had, by agreement between the parties, been tried separately prior to embarking on the trial of the merits of the case. Neither party chose to adduce evidence and the issue was consequently argued on the pleadings. F

[2] The plaintiff in the action (the respondent on appeal) is an incola of the Witwatersrand Court. The defendant (the appellant) is a company incorporated in England and Wales and a peregrinus of the Republic of South Africa. G

[3] In September 2000, the plaintiff instituted the action against the defendant claiming repayment of an amount of R515 815 paid under protest and alleged to be subject to the condition that it would be repaid if found not to be due. (The claim was subsequently reduced by an amount of R117 604,85 which, the plaintiff conceded, had indeed been due and payable.) An alternative claim was based on the H condictio indebiti. The parties had, during November 1989, in London, concluded a written agreement, the essence of which was that the defendant granted the plaintiff a licence to operate a management consultancy in a number of Southern African countries, including the Republic. In consideration for the rights, the plaintiff I undertook to pay royalties to the defendant in London.

[4] The plaintiff averred in its particulars of claim that the trial Court possessed jurisdiction to try its cause because the plaintiff was an incola and the defendant had consented to the jurisdiction of the Court. The J

2005 (2) SA p524

Heher JA

plaintiff alleged that its cause of action arose 'in connection with the agreement' and relied A specifically upon the terms of clauses 15 and 16.1 thereof.

[5] Clause 15 stipulated that the proper law of the agreement was to be the law of the Republic of South Africa. Clause 16.1 provided as follows: B

'16.1

Addresses and notices

16.1.1

For the purposes of this agreement, including the giving of notices and the serving of legal process, the parties choose domicilium citandi et executandi (domicilium) as follows:

Group:	c/o Deneys Reitz; Crusader House; 10 Anderson Street C; Johannesburg; (Att K Cron)
Fax No: with an information copy to:	838-7444; 52 Grosvenor Gardens; Victoria London; SW1W OAU D
Telex No: Fax No: HSA and Ravnsborg:	730-7004; 1st Floor, Norwich Park,; Cor 5th Street & Grayston Drive,; Sandown, Sandton 2146, South Africa
Telex: Fax No:	884-4339 E

16.1.2

A party may at any time change that party's domicilium by notice in writing, provided that the new domicilium is in the Republic of South Africa and consists of, or includes, a physical address at which process can be served.' F

[6] The defendant raised a special plea to the jurisdiction. It pleaded that it was a peregrinus of the Republic and the plaintiff had not attached its property to found or confirm jurisdiction and denied that it had expressly or tacitly consented to the jurisdiction by concluding the agreement containing G the clauses relied on by the plaintiff.

[7] In its plea to the merits, the defendant averred that the agreement had been varied by an exchange of letters, denied that the plaintiff had calculated the fees which it owed on a proper basis and denied that the plaintiff was entitled to recover any part of the amount that it had paid. H

[8] The judgment of the Court a quo addressed two questions:

(i)

whether a submission by the defendant to the jurisdiction of the Court was sufficient, of itself (there being no other ratio jurisdictionis available to the plaintiff), to found jurisdiction in an action for money by an incola of the I Court against a peregrinus or whether the plaintiff required an attachment of the defendant's property in addition;

(ii)

whether the grounds relied on by the plaintiff established a submission to the jurisdiction by the defendant.

[9] In...