Prentice, Shaw & Schiess Incorporated v Government of the Republic of Bolivia

• Jurisdiction: South Africa
• Judge: Goldstone AJ
• Judgment Date: 07 June 1978
• Court: Transvaal Provincial Division
• Hearing Date: 09 May 1978
• Date: 07 June 1978

Goldstone AJ:

The applicant is a company which carries on business in Pretoria as quantity surveyors. During July 1976 the respondent, acting through its then Chargé d' Affairs in Pretoria, appointed the applicant as the quantity surveyor in respect of the erection of a building in Pretoria C to house the respondent's embassy.

Acting in terms of its mandate the applicant performed certain work and now alleges that the respondent is indebted to it in the sum of R8 926,11. It appears from correspondence which has passed between the applicant and the respondent's aforesaid Chargé d' Affairs that the mandate from the respondent to the applicant and the basis upon which the fees of the D applicant were to be calculated are not in dispute.

However, in a letter dated 11 August 1977, the attorneys acting for the respondent informed the applicant that the plans upon which it had worked were not approved by the respondent and for that reason the respondent denied being indebted to the applicant either for the amount claimed by it E or for any other amount.

In the present application, which is brought ex parte, the applicant seeks this Court's authority to institute action against the respondent for payment of the aforesaid amount of R8 927,11 together with mora interest by way of edictal citation. It further seeks authority to cause assets of the respondent situate at its premises in King's Highway, F Auckland Park, Johannesburg, to be attached by the Deputy-Sheriff to confirm the jurisdiction of this Court in respect of the proposed action.

Such an application is necessary for two reasons. In the first place, without leave of the Court no process or document whereby legal proceedings are instituted may be served outside the Republic of South G Africa: Rule 5. In the second place, where a peregrinus is sued in a South African court, even though the court might have jurisdiction because, as in the present case, the cause of action arose within the area of jurisdiction of the court, an attachment of the person or property of the peregrinus is necessary to confirm that jurisdiction: Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A) at 300C H - D; Murphy v Dallas 1974 (1) SA 793 (D).

Mr Southwood, who appeared for the applicant, in a helpful argument, submitted that all the requisites entitling the applicant to the orders sought by it were established. However, he realised that the difficulty in the way of such relief being granted was the principle of public international law that the courts of a country will not by their process make a foreign State party to legal proceedings against its will: De Howarth v The SS "India" 1921 CPD 451; Parkin v Government of the Republique Democratique du

Goldstone AJ

Congo and Another 1971 (1) SA 259 (W); Leibowitz and Others v Schwartz and Others 1974 (2) SA 661 (T); Lendalease Finance Co (Pty) Ltd v Corporation de Mercadeo Agricola and Others 1975 (4) SA 397 (C) at 402 - 404.

A Mr Southwood submitted that this principle of sovereign immunity, which is applied by the courts of all civilised countries, is no longer applied absolutely in many legal systems. This modern trend was referred to in the case of Lendalease Finance Co (Pty) Ltd v Corporation de Mercadeo Agricola and Others (supra). At 403 - 4 DE KOCK J stated:

B "Mr Suzman, for the applicant has referred...