Skjelbreds Rederi A/S and Others v Hartless (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Vermooten J
• Judgment Date: 02 January 1980
• Citation: 1982 (2) SA 739 (W)
• Court: Witwatersrand Local Division

Vermooten J:

The following parties are involved in this dispute: Freedom Tramping Enterprises Inc (to which I shall refer as Freedom Tramping), a company registered in Panama, and having its principal place of business at Piraeus, Greece, carrying on business as shipowners; Skjelbreds Rederi A/S (which I shall call Skjelbreds) a company registered in Norway, carrying on business as shippers, and registered

Vermooten J

as an external company in the Republic of South Africa; Transvaal Coal Owners Association (1923) (Pty) Ltd (to which I shall refer as TCOA) a A company with its registered office and principal place of business in Johannesburg, and engaged in the export of coal from South Africa; Hartless (Pty) Ltd (which I shall call Hartless), a Johannesburg company formed for the purpose of purchasing and recovering claims; Schiffshypothekenbank zu Lübeck A/G (to which I shall refer as SHL), B representing a consortium of three German banks; Northern Transporter A/S (which I shall call Northern), a company registered in Norway and formed by the Banks for acquiring the vessel Nortrans Elma, the property of Skjelbreds, which had been mortgaged to the Banks.

C On 15 April 1978 Carras Shipping Co Ltd, as agent for Freedom Tramping, entered into a time charterparty with Skjelbreds relating to a vessel MV Meliton, subsequently replaced by the MV Khian Wave, owned by Freedom Tramping. The Khian Wave was utilised by Skjelbreds for a voyage from New Orleans, USA to the Middle and Far East. Freedom Tramping alleged that Skjelbreds breached the charterparty by non-payment of the D hire, and cancelled the agreement when the vessel was at Mauritius; and transported certain of the cargo from Mauritius by another ship to Karachi and Bombay. Accordingly Freedom Tramping alleged it had a claim for non-payment of hire, and for damages, against Skjelbreds. It is this claim that led to the present proceedings. The validity of the claim itself is not in issue in these proceedings.

E On 1 June 1974 Skjelbreds, which operates ships under charter, entered into a written charterparty with TCOA to transport some 750 000 tons of coal per annum from Richards Bay to ports in Europe, until 31 December 1981.

F On 29 June 1973, and for the specific purpose of performing this charterparty, Skjelbreds commissioned the building of a ship in Japan, being a bulk carrier named the MV Nortrans Elma. This ship was registered in Skjelbreds' name on 21 May 1976 in Norway.

Arising out of the contract with TCOA moneys became payable from time to G time by TCOA to Skjelbreds. The coal was being transported in the Nortrans Elma, which was later purchased by Northern.

During October 1978 Freedom Tramping sought to attach the Nortrans Elma in France. This attachment was set aside by the French Court on the ground of the sale and transfer of the ship to Northern. The Nortrans Elma had been mortgaged to the banks.

Freedom Tramping ceded its claim against Skjelbreds to Hartless.

H On 1 November 1978 Hartless brought an urgent application before PREISS J in this Division against Skjelbreds and TCOA for the attachment of certain assets ad fundandam jurisdictionem in the proposed action by Hartless as cessionary from Freedom Tramping against Skjelbreds. The learned Judge granted an order authorising an attachment. Shortly thereafter, by agreement in writing between Hartless, Freedom Tramping and TCOA certain moneys, sufficient to cover the claim of Hartless against Skjelbreds, were deposited with Barclays Bank to be held by them as stakeholders.

Vermooten J

The present application is brought by Skjelbreds, Northern and SHL for an order

(a)

granting leave to Northern and SHL to intervene in the application by Hartless against Skjelbreds and TCOA;

(b)

A setting aside the order authorising the attachment previously granted in favour of Hartless; and

(c)

authorising Barclays Bank to release the money held by it as stakeholder, to the attorneys for Northern and SHL.

The relief sought in prayer (a) is not apposed, and will be granted.

B Mr Suzman, who appeared on behalf of the applicants, argued two points in limine. I directed that argument should proceed on the whole case and intimated that I would give judgment thereon in due course.

The first point was whether Skjelbreds, by virtue of its registration as C an external company in the Republic of South Africa and by virtue of carrying on business in the Republic, is resident in the Republic, for s 28 (1) of the Supreme Court Act 59 of 1959 provides:

'No attachment of person or property to...