Republica Popular De Mocambique v Main Spares Acc (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Goldstone J
• Judgment Date: 21 March 1986
• Citation: 1986 (4) SA 929 (W)
• Hearing Date: 20 March 1986
• Court: Witwatersrand Local Division

Goldstone J:

On 5 February 1985 I issued an order in the following terms:

"1.

That a rule nisi be, and is hereby, issued calling upon any interested party to show cause, if any, to this Court on 26 C February 1985 at 10h00 or so soon thereafter as counsel may be heard, why the following order should not be made:

(a)

An order should not be granted, authorising and directing the Sheriff or his deputy to attach the immovable property of the respondent, being stand 58 and stand 59, Forest Town, as more fully described in deed of transfer F2600/61, to found and/or to confirm jurisdiction in an application to be instituted by the applicant against the respondent, as more fully detailed in para 4 hereof.

2.

The rule nisi issued in para 1 above will operate forthwith as an interim order pending the return date.

3.

In addition to the service referred to in para 4 hereunder, notice of the rule nisi will be given to the Portuguese Ambassador, 701 Van Erkom Building, 217 Pretorius Street, Pretoria, by way of service of this order by the deputy sheriff at the aforesaid address.

4.

Service of the rule nisi in the above matter will be effected as follows:

(a)

by registered letter addressed to the Minister of Foreign Affairs, alternatively the Ministry of Foreign Affairs, alternatively the Department of Foreign Affairs, Avenida Julius Nyerere, Maputo, being respondent's official address in Maputo;

(b)

by personal service by the deputy sheriff on the Commercial Representative of the Mocambique Harbours F and Railways at 6th floor, African Life Centre, 111 Commissioner Street, Johannesburg.

7.

Costs of this application will be reserved."

For convenience I shall refer to the present application as the Government of Mocambique and to the present respondent as the plaintiff.

The usual practice in relation to attachments ad fundandam or ad confirmandam jurisdictionem is to make an outright order and G not to issue a rule nisi. I have no precise recollection of the reason for the issue of a rule in this case. I assume that it was because the property sought to be attached was registered in the Deeds Office in the name of "The Government of Portugal, Administration of Mocambique Harbours and Railways". Hence also the terms of para 3 of the order.

H The order was served as directed by para 4 thereof. Mr Ettlinger, who appears for the Government of Mocambique, submitted that that form of service did not comply with the provisions of s 13 (1) of the Foreign State Immunities Act 87 of 1981 ("the Act"). I do not agree. Section 13 (1) provides that:

"Any process or other document required to be served for I instituting proceedings against a foreign State shall be served by being transmitted to the Department of Foreign Affairs and Information of the Republic, to the Ministry of Foreign Affairs of the foreign State, and service shall be deemed to have been effected when the process or other document is received at that Ministry."

An order for the attachment of property is not a "process or other document... for instituting proceedings". The proceedings in this case could only be instituted and were in J fact only instituted by edictal citation pursuant to an order granted on 2 April 1985.

Goldstone J

A Notice of the order reached the Government of Mocambique. That appears from the affidavit of Mr Fernandes, the legal adviser to the Minister of Transport of the Mocambique Government. Mr Fernandes states:

"A copy of the order was received by the Ministry of Foreign Affairs and forwarded to the National Directorate of Harbours B and Railways, Mocambique, for attention."

It is clear, in my view, from the context in which that statement is made, that the order was so received shortly after it was issued, and in any event prior to the confirmation of the rule.

On the date on which the order was made, ie 5 February 1985, s 14 of the Act read as follows:

"(1) Subject to the provision of ss (2) and (3):

(a)

relief shall not be given against a foreign State by way of interdict or order for specific performance or for the recovery of any movable or...