Nahrungsmittel GmbH v Otto

• Jurisdiction: South Africa
• Citation: 1993 (1) SA 639 (A)

Nahrungsmittel GmbH v Otto
1993 (1) SA 639 (A)

1993 (1) SA p639

Citation	1993 (1) SA 639 (A)
Court	Appellate Division
Judge	Hoexter JA, Vivier JA, Kumleben JA, FH Grosskopf JA and Van Coller AJA
Heard	November 16, 1992
Judgment	November 27, 1992

Flynote : Sleutelwoorde

Appeal — Leave to appeal — When necessary — Supreme Court Act 59 of 1959, s 20(6)(b) — Where statute other than Supreme Court Act specifically grants right of appeal, such right displaces requirement of leave to appeal imported by s 20 — Section 150(1) of Insolvency Act 24 of C 1936 accords unqualified right to appeal against final sequestration order or against order setting aside provisional sequestration — No leave required to exercise such right of appeal.

Insolvency — Compulsory sequestration — Application for — Jurisdiction D — Insolvency Act 24 of 1936, s 149(1) — Whether peregrinus insolvent entitled to property situate within jurisdiction of Court — Property in question an award of costs evidenced by Taxing Master's certificate — Such award an incorporal property right having no physical existence — Locality of incorporeal being where debtor resides — Debtor a German company resident in Germany — Locality of incorporeal thus Germany — E Insolvent accordingly not entitled to property situate within jurisdiction of South African Court.

Headnote : Kopnota

The meaning naturally and properly to be assigned to s 20(6)(b) of the Supreme Court Act 59 of 1959 is that where a statute other than the F Supreme Court Act specifically grants a right of appeal to a dissatisfied litigant, such right displaces the requirement of leave to appeal imported by s 20 of the Act. Leave to appeal is thus not required in order to exercise the unqualified right of appeal accorded by s 150(1) of the Insolvency Act 24 of 1936 to any person aggrieved by a final order of sequestration or by an order setting aside an order of provisional sequestration. The right of appeal granted by s 150(1) tacitly includes a right of appeal to the Appellate Division.

G In an appeal against the setting aside of a provisional order of sequestration by a Provincial Division, one of the issues was whether the Court a quo had jurisdiction over the respondent debtor, a peregrinus, in terms of s 149(1) of the Insolvency Act on the grounds that the respondent had been entitled to property situate within the jurisdiction of the Court a quo. At the time when the petition for sequestration had been lodged there had been in existence a certificate by the Taxing Master awarding to the respondent costs of previously aborted sequestration proceedings.

H Held, that the award of costs, evidenced by the certificate, was an intangible property right which could have no physical existence.

Held, further, that the locality of incorporeal property had to be where the debtor resided because it was there that the debtor had to be sued in order to obtain performance.

The dictum in Randfontein Estates Gold Mining Co Ltd v Custodian of Enemy Property1923 AD 576 at 581 applied.

Held, accordingly, since the debtor was a German company resident in I Germany, that the locality of the incorporeal evidenced by the Taxing Master's certificate was Germany and not within the jurisdiction of the Court a quo. The appeal was dismissed.

The decision in the Cape Provincial Division in Nahrungsmittel GmbH v Otto1992 (2) SA 748 confirmed.

Case Information

Appeal from a decision in the Cape Provincial Division reported at 1992 J (2) SA 748 (Nel J). The facts appear from the judgment of Hoexter JA.

1993 (1) SA p640

A C M Eloff for the appellant referred to the following authorities: As to jurisdiction, see Nahrungsmittel GmbH v Otto1991 (4) SA 414 (C); Nahrungsmittel GmbH v Otto1992 (2) SA 748 (C); Cohen v Commissioner for Inland Revenue1946 AD 174 at 185; De la Rey Mars on the Law of Insolvency in South Africa 8th ed at 16; Kalil v Decotex (Pty) Ltd and Another1988 (1) SA 943 (A) at 979I-J; Bank of Lisbon & South Africa Ltd v The Master and Others1987 (1) SA 276 (A) at 290I; Drop-Inn Group of Liquor B Supermarkets (Pty) Ltd v Longman Distillers Ltd1988 (4) SA 35 (C) at 36G and 37E; Longman Distillers v Drop-Inn Group of Liquor Supermarkets (Pty) Ltd1990 (2) SA 906 (A) at 915A; Araxos (East London) (Pty) Ltd v Contara Lines Ltd and Others1979 (1) SA 1027 (E); Walter Pollack The South C African Law of Jurisdiction (1937) at 122. As to whether leave to appeal was necessary, see Du Plessis en 'n Ander v Tzerefos1979 (4) SA 819 (O) at 827 in fine, 830H-831H; Amod v Kahn1947 (2) SA 432 (N); Fourie v Drakensberg Koöperasie Bpk1988 (3) SA 466 (A) at 478; Sirioupoulos v Tzerefos1979 (3) SA 1197 (O) at 1203E-F; Shepherd v Mitchell Cotts D Seafreight (SA) (Pty) Ltd1984 (3) SA 202 (T) at 207B; Lawclaims (Pty) Ltd v Rea Shipping Co (SA): Schiffscommerz Aussenhandels-betrieb Der VVB Schiffbau Intervening1979 (4) SA 745 (N) at 750F; Mbutuma v Xhosa Development Corporation1978 (1) SA 681 (A) at 687A; Meskin Insolvency Law and its Operation in Winding-Up at 2-11 and 2-12 para 3.1.2.3.

W R E Duminy for the respondent referred to the following authorities: E As to whether leave to appeal was necessary, see s 20(2), (4), (5), (6) of the Supreme Court Act 59 of 1959; Kruger v Le Roux1987 (1) SA 866 (A); s 49(1) of the Water Act of 1956; s 17C of the Labour Relations Act 28 of 1956 (as amended); s 150(1), (2), (3) of the Insolvency Act 24 of 1936; s 8(1) of the Interpretation Act 33 of 1957; Lawclaims (Pty) Ltd v Rea F Shipping Co SA1979 (4) SA 745 (N) at 749E-750A; Fourie v Drakensberg Koöperasie Bpk1988 (3) SA 466 (A) at 478, 479; Bloemfontein Town Council v Richter1938 AD 195 at 232; Collett v Priest1931 AD 290 at 297 in fine; Harris and Others v Minister of the Interior1952 (2) SA 428 (A) at 454A; Catholic Bishops Publishing Co v The State President and Another1990 (1) SA 849 (A) at 866H; Ellispark Stadion Bpk v Minister van Justisie1990 (1) SA 1038 (A) G at 1051H-I; Louw v W P Koöperasie Bpk1991 (3) SA 593 (A) at 596C. As to the scope of the appeal, see Shepherd v Mitchell Cotts Seafreight (SA) (Pty) Ltd1984 (3) SA 202 (T) at 207B; Du Plessis en 'n Ander v Tzerefos1979 (4) SA 819 (O) at 838H-839A; Kalil v Decotex (Pty) Ltd and Another1988 (1) SA 943 (A) at 983C-984C; Joubert (ed) The Law of H South Africa vol 11 para 397; Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd ed at 8; Mars The Law of Insolvency in South Africa 8th ed at 103, 105-6; compare Trust Bank van Afrika Bpk v Western Bank Ltd en Andere1978 (4) SA 281 (A) at 294C-295A; Provincial Building Society of SA v Du Bois1966 (3) SA 76 (W) at 79H-80A, 81H-82A. As to the issue of jurisdiction, see s 149(1) of the Insolvency I Act 24 of 1936; Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1984 (3) SA 623 (A) at 634E-635C; Joubert (op cit vol 2 para 553); Voet Commentary on the Pandects 1.8.30 read with s 11 of the 'Appendix' to 1.4 (Gane's translation); Huber Jurisprudence of my Time 1.3.51 (Gane's translation vol 1 at 17); Forsyth Private International Law 2nd ed at 299, J 302; Longman Distillers Ltd v Drop Inn Group 1990 (2) SA

1993 (1) SA p641

A 906 (A) at 911I-J, 912A; Pollak The South African Law of Jurisdiction (1937) at 122. As to the remaining aspects of the application for sequestration, see SWA National Union v Tjozongoro and Others 1985 (1) SA 376 (SWA) at 381E; Langeberg Ko-operasie Bpk v Folscher and Another1950 (2) SA 618 (C) at 620; South African Milling Co (Pty) Ltd v Reddy1980 (3) SA 431 (SE) B at 437B-F; Baeck v Van Zummeren1982 (2) SA 112 (W); Moosa and Cassiem NNO v Community Development Board1990 (3) SA 175 (A) at 180G-181B; Griffiths & Inglis (Pty) Ltd v Southern Cape Blasters (Pty) Ltd1972 (4) SA 249 (C) at 253E-254D; Laurie Brothers Ltd v Arcache 1927 NPD 139 at 140-1; Victor Kent (Natal) (Pty) Ltd v De Jager 1942 NPD 337 at C 338-9; Barlows (EP) Ltd v Bouwer1950 (3) SA 850 (E) at 851; Holzman NO and Another v Knights Engineering and Precision Works (Pty) Ltd1979 (2) SA 784 (W) at 788F, 791H, 793C; Spendiff NO v JAJ Distributors (Pty) Ltd1989 (4) SA 126 (C) at 137I-138C; National Bank of SA Ltd v Cohen's Trustee1911 AD 235 at 252; Bank of Lisbon and SA Ltd v The Master and Others1987 (1) SA 276 (A) at 294B-E; Land- en Landboubank van SA v Die D Meester1991 (2) SA 761 (A) at 771D-G; Goode, Durrant & Murray (SA) Ltd and Another v Laurence1961 (4) SA 329 (W) at 331A-B; Mindel Brothers & Mindel v Selikman 1930 WLD 242.

Cur adv vult. E

Postea (November 27).

Judgment

Hoexter, JA.:

The appellant is a company incorporated in Germany which carries on business at Mannheim and Frankfurt am Main. The appellant F belongs to a group of German companies headed by Co-Op AG ('Co-op') which carries on business in Germany. The respondent, Dr Heinz Bernd Otto, is a German citizen. In what follows I shall refer to the appellant as 'the applicant' and to the respondent as 'Otto'. In April 1990 the applicant applied in the Cape of Good Hope Provincial Division for the provisional sequestration of Otto's estate. The application was opposed. Voluminous G affidavits were filed on either side and the matter was argued for three days before Conradie J. Having reserved judgment thereon the learned Judge delivered a judgment ('the first judgment') in which he granted a provisional sequestration order. The first judgment has been reported: Nahrungsmittel GmbH v Otto1991 (4) SA 414 (C). On the extended return day H of the provisional order the matter was argued for four days before Nel J. Having reserved judgment Nel J gave judgment ('the second judgment') in which he discharged the provisional order with costs. The second judgment has also been reported: Nahrungsmittel GmbH v Otto1992 (2) SA 748 (C). Against the whole of the second...