Maritime & Industrial Services Ltd v Marcierta Compania Na Viera SA; NV Scheepsvictualienhandel Atlas & Economic Shipstores Ltd v Marcierta Compania Naviera SA

• Jurisdiction: South Africa
• Judge: van Heerden J
• Judgment Date: 16 April 1969
• Hearing Date: 28 March 1969
• Court: Durban and Coast Local Division

van Heerden, J.:

These two ex parte applications against the same H respondent came before me on the same day. Respondent is a company incorporated according to the laws of Panama with its registered office at Apartada 850 Avenida Central 8.40, Panama, and carries on business as a ship owner. It is the owner of the ship Persian Cambyses II which entered Durban harbour at about the beginning of November, 1968 for repairs and is still there.

The applicants are asking that the Deputy-Sheriff be authorised to attach this ship and to hold it under attachment pending the outcome of actions to be brought by them against the respondent for the payment

van Heerden J

of the sums of R1,761.36 and R7,175.83, respectively, but with authority to release it from attachment upon the lodging of security with, and to the satisfaction of, the Registrar of this Court for the payment of the said sums and costs. The applicants are also asking for leave to sue the A respondent by edictal citation for payment of the said sums.

The one applicant, Maritime & Industrial Services Ltd. (hereinafter conveniently referred to as the first applicant), is a company incorporated with limited liability in accordance with the company laws of England with its registered office at 430 Barking Road, London, and B carries on business as a supplier of ships' stores and equipment. On 29th October, 1968 first applicant sold certain ships' stores and equipment to the respondent pursuant to orders placed with first applicant by respondent's London agents and these were delivered to the said ship which was then in Dunkirk harbour.

C The other applicant, N v Scheepsvictualienhandel Atlas & Economic Shipstores Ltd. (hereinafter conveniently referred to as the second applicant), is duly incorporated as a company with limited liability in accordance with the laws of Holland and carries on business at 14 Baan, Rotterdam, Holland, as a dealer and supplier of ships' provisions and D stores. During the beginning of January, 1968, whilst the ship was berthed in the harbour at Rotterdam, the master of the ship, in the course and scope of his employment with the respondent, contracted with second applicant for the supply of provisions and stores for the ship and these were duly supplied. On 21st August, 1968, whilst the ship was E in the harbour of Dunkirk, a similar contract was entered into and the provisions and stores duly supplied.

It is in respect of the aforesaid contracts that first and second applicants contemplate instituting actions against the respondent for the payment of the sums of R1,761.36 and R7,175.83, respectively, and for which they seek leave for the attachment of the ship ad fundandam et confirmandam jurisdictionem.

F It is clear from what is set out above as also from the papers, and, indeed, applicants did not contend otherwise, that the two applicants and the respondent are all peregrini not only in regard to the area of jurisdiction of this Court but also in regard to the whole of the Republic of South Africa, that the contract was entered into and performable outside the Republic of South Africa and that no ratio G exists which ordinarily would give this Court jurisdiction but that jurisdiction, if it is to exist, is to be founded on the attachment of the aforesaid ship within this Court's jurisdiction. It is in view hereof that I raised with Mr. Friedman whether such attachment would be H sufficient to give this Court jurisdiction to entertain the contemplated actions between peregrini based on contracts entered into and performable outside the Court's territorial jurisdiction and, indeed, outside the Republic of South Africa. Mr. Friedman submitted that the Court would have jurisdiction and referred to Wrens (Pty.) Ltd v S. & W. Fine Foods Inc., 1941 NPD 343 and American Cotton Products Corporation v Felt and Tweeds, Ltd., 1953 (2) SA 753 (N). I indicated that I would take time to consider the position and Mr. Friedman has since referred me

van Heerden J

to more cases, both in this Province and in the other Provinces, relevant to the point in question.

The difference of judicial opinion which existed in the different A Provinces of the Republic of South Africa as to whether, in an action in which a judgment sounding in money is claimed, attachment of the person or property of a peregrinus founded jurisdiction which did not exist before such attachment (ad fundandam jurisdictionem) or whether it merely confirmed or strengthened a jurisdiction which already existed (attachment ad confirmandam jurisdictionem) seems to have been settled. B It has now been authoritatively decided that the attachment of the property of a peregrinus at the suit of an incola establishes jurisdiction even if no other ground to exercise jurisdiction (ratio jurisdictionis) exists. See, e.g. Lecomte v W. & B. Syndicate of Madagascar, 1905 T.S. 696; Halse v Warwick, 1931 CPD 233; Fielding v Sociedade Industrial de Oleos Limitada, 1935 NPD 540; Estate C Brownstein v Commissioner for Inland Revenue, 1957 (3) SA 512 (AD).

The difference of judicial opinion existing in the different Provinces as regards the law applying to a peregrine plaintiff who seeks to attach the property of a peregrine defendant to found jurisdiction has, however, not yet been settled. The Courts in the other Provinces of the D Republic of South Africa have held that, before they can order the attachment of the property of one peregrinus at the instance of another peregrinus, some other recognised ratio jurisdictionis in respect of the contemplated suit between the parties must exist. Mr. Friedman submitted that the position in Natal is that, even where no other ratio jurisdictionis is present, jurisdiction can be founded by mere E attachment of the person or property of a peregrine defendant at the instance of a peregrine plaintiff and, in support of his submission, referred to Wrens (Pty.) Ltd v S. & W. Fine Foods Inc. and American Cotton Products Corporation v Felt and Tweeds Ltd., supra. In the latter case, SHAW, J., agreed with what was said by DE WET, A.J., in the F Wrens (Pty.) Ltd. case and felt that it was not competent for him, sitting alone, to take a different view. DE WET, A.J. on the other hand, referring to what was said by CONNOR, J., in Beningfield & Son v The Guardian Assurance and Trust Company of Port Elizabeth, 1872 N.L.R. 54 at p. 55, and quoted with...