Simon NO v Air Operations of Europe Ab and Others

• Jurisdiction: South Africa
• Citation: 1999 (1) SA 217 (SCA)

Simon NO v Air Operations of Europe Ab and Others
1999 (1) SA 217 (SCA)

1999 (1) SA p217

Citation	1999 (1) SA 217 (SCA)
Case No	354/96
Court	Supreme Court of Appeal
Judge	Smalberger JA, Howie JA, Plewman JA, Streicher JA, Ngoepe AJA
Heard	September 4, 1998
Judgment	September 25, 1998
Counsel	NN Lazarus (with him T Massyn) for the appellant; DV Duke (with him R Hutton) for the respondents

Flynote : Sleutelwoorde I

Appeal — Generally — Power of Court of appeal — Power in terms of s 21A of Supreme Court Act 59 of 1959 to dismiss appeal where judgment or order sought would have no practical effect or result — Semble: Section 21A(1) a procedural provision rather than matter of substantive law — Thus applying to all appeals heard after date of its coming into operation, J

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even if judgment or order appealed against given or made before then — Section 21A(1) applying from date of coming A into operation to both pending and prospective appeals.

Cession — Assignment — Meaning of — Generally connotes transfer of both rights and obligations from assignor to assignee — However, meaning to be determined in particular context, and possible that rights only, and not also B obligations, transferred — Mere fact that in casu assignor's right to receive payment under bilateral agreement transferred to assignee not necessarily entailing that assignor's obligations also transferred to assignee — Improbable that obligations passing where assignee not having means or skills to perform assignor's obligations.

Interdict — Interdict pendente lite — Requirements for — Requirement of prima facie right, though open to some doubt — C Determination of — Test being to take facts averred by applicant, together with undisputed or indisputable facts averred by respondent, and to determine whether, on inherent probabilities, applicant should obtain final relief at trial — Contradictory facts of respondent then to be considered — If serious doubt thereby cast on applicant's case, relief to D be refused.

Jurisdiction — Attachment ad fundandam jurisdictionem — When permissible — Not permissible where Court already has jurisdiction because disputed agreement between incola applicant and peregrinus respondent concluded, and subject-matter of alleged agreement (moneys in bank account), situated within jurisdiction. E

Jurisdiction — Attachment ad fundandam jurisdictionem — Requirements for — Requirement of prima facie cause of action — Such requirement satisfied if shown that evidence existing which, if accepted, will establish cause of action — Mere fact that such evidence contradicted not barring relief — Attachment refused only when quite clear that plaintiff F having no cause of action.

Jurisdiction — Attachment ad confirmandam jurisdictionem — When permissible — Nature of claim sought to be instituted — Attachment to confirm jurisdiction historically only justified in cases sounding in money or claims relating to property — Not permitted in matrimonial causes or actions in personam not having monetary or property G component.

Jurisdiction — Attachment ad confirmandam jurisdictionem — When permissible — In respect of prospective costs orders — Attachment to confirm jurisdiction not permitted solely in relation to prospective costs order — Where Court having jurisdiction in matter involving peregrine, in respect of which attachment ad confirmandam jurisdictionem not H otherwise permissible, Court entitled to award costs despite non-attachment because of consequential nature of costs order, and for reasons of convenience and common sense — Otherwise attachment would be permissible in almost every case against peregrinus, which should not be permitted.

Headnote : Kopnota

The appellant was the liquidator of a company which had carried on the business as a tour operator ('Logans'). I Logans had hired an aircraft from the first respondent ('Air Ops'), a Swedish company which also provided services ancillary to air travel. During the currency of the lease, Air Ops transferred its right to receive payments from Logans to the second respondent, a Dutch company and financier in the airline industry ('ING'). It was agreed that Logans would pay moneys due under the lease into an account held by J

1999 (1) SA p219

ING at the third respondent bank ('the bank account'). Logans thereafter experienced financial difficulties, A allegedly due to various breaches by Air Ops of its obligations under the lease, and was wound up. The appellant wished to recover damages for the aforesaid breach of contract from Air Ops and/or ING. ING had in the meantime obtained authorisation from the relevant authorities to remit abroad the accumulated funds in the bank B account, whereupon the appellant sought an urgent order in a Local Division attaching those funds ad fundandam vel confirmandam jurisdictionem the proposed action. It was common cause that both Air Ops and ING were foreign peregrini of the Court a quo, within the jurisdiction of which the bank account was held.

The appellant's application in the Court a quo was based on two grounds: (1) an assignment by Air Ops of its C rights and obligations in terms of the lease to ING (assumed to have occurred outside the jurisdiction of the Court a quo), thereby rendering ING liable to Logans for any damages arising from breaches of the lease; and (2) an oral agreement between Logans, Air Ops and ING, concluded within the jurisdiction of the Court a quo, in terms of which it was agreed that, pending the determination of various disputes, neither Air Ops nor ING would be D entitled to draw on the moneys standing to the credit of the bank account (an agreement which both Air Ops and ING denied). As to this latter ground, because Air Ops made no claim to the moneys, the issue was confined to whether ING had agreed that it would not be entitled to do so. The application was ultimately dismissed in the Court a quo, and ING was permitted, subject to security de restituendo, that is, in the event of an appeal against E that judgment being successful, to transfer the moneys overseas. A suitable guarantee was thereupon furnished, and the money was transferred. However, the guarantee was permitted to lapse, and the appellant thereafter brought a further application, seeking an order directing ING to provide security de restituendo by furnishing a F fresh guarantee. That application, too, was dismissed. Accordingly, when the appeal came to be heard, the respondents argued that the appeal had to be dismissed, apart from the merits, also by virtue of the provisions of s 21A(1) of the Supreme Court Act 59 of 1959, on the basis that the judgment on appeal would have no 'practical effect or result'.

Held, that, in view of the conclusion reached with regard to the merits, it was unnecessary to decide whether the G present was an appropriate matter in which to invoke the provisions of s 21A(1). (At 226E/F—F.)

Semble: s 21A(1) was a procedural provision rather than a matter of substantive law, for which reason it applied to all appeals heard after the date of its coming into operation, even if the judgment or order appealed against had been given or made before then. In other words, s 21A(1) applied from the date of its coming into operation to H both pending and prospective appeals. (At 226I—227B.)

Held, further, that, as Logans was an incola of the Court and ING a foreign peregrinus, attachment of the moneys in the bank account (which belonged to ING) was necessary to found jurisdiction (ad fundandam jurisdictionem), ie to confer a jurisdiction which did not otherwise exist. All that remained was for the appellant to I establish that he had a prima facie cause of action against ING. (At 228B/C—C/D.)

Held, further, that the requirement of a prima facie cause of action was satisfied if an applicant showed that there was evidence which, if accepted, would establish a cause of action. The mere fact that such evidence was contradicted would not disentitle the applicant to relief - not even if the probabilities J

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were against him. It was only where it was quite clear that the applicant had no cause of action, or could not A succeed, that an attachment had to be refused. (At 228C/D—D/E.)

Held, further, that the remedy of attachment ad fundandam jurisdictionem was an exceptional remedy, and one that should be applied with care and caution. Once all the requirements for attachment had been satisfied, however, a Court had no discretion to refuse an attachment. (At 228E—F.) B

Held, further, that insofar as the appellant sought an interim interdict pendente lite it was incumbent on him to establish, as one of the requirements for the relief sought, a prima facie right, even though open to some doubt. The accepted test for a prima facie right in the context of an interim interdict was to take the facts averred by the C applicant, together with such facts set out by the respondent that were not or could not be disputed, and to consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered and, if serious doubt was thrown upon the case of the applicant, he could not succeed. (At 228F/G—H/I.)

The assignment issue D

Held, further, insofar as the appellant relied on an assignment by Air Ops of its rights and obligations to ING, that the word 'assignment' in our law was generally used to denote a transfer of both rights and obligations, but its precise meaning in a given case might depend on the context in which it was used. It did not follow as a matter of E law that because the right to receive payments from Logans had admittedly been transferred by Air Ops to ING, the latter had succeeded...