Tedecom Electrical Engineering Services (Pty) Ltd v Berriman

• Jurisdiction: South Africa
• Judge: Slomowitz AJ
• Judgment Date: 23 October 1981
• Citation: 1982 (1) SA 520 (W)
• Hearing Date: 20 October 1981
• Court: Witwatersrand Local Division

Slomowitz AJ:

In ex parte proceedings the applicant seeks an order 'authorising the attachment ad confirmandam jurisdictionem alternatively G ad fundandam jurisdictionem of the person of the respondent, John Berriman, presently resident at Pioneer House, Vanderbijlpark...'.

What is envisaged against him is a money claim sounding in damages for breach of a contract concluded in England but which was to be performed or partly performed in Johannesburg.

H The applicant alleges that it is an incola of this Division, sets out facts to support its claim to be possessed of a cause of action, and avers that the respondent is a peregrinus of the Republic. In the view that I take of the case, it is unnecessary for me to decide whether these matters have been prima facie established, and I expressly refrain from so doing.

Vanderbijlpark is a town which, although within the province of the Transvaal, lies beyond the area of jurisdiction of this Division. Accordingly, the crisp question that I put to Mr Werksman who appeared for the applicant was whether I had power to make the order

Slomowitz AJ

sought. He submitted that I did indeed have such power, and urged me to follow Bock & Son (Pty) Ltd v Wisconsin Leather Co 1960 (4) SA 767 (C) and Ex parte Gerald B Coyne (Pty) Ltd: In re Gerald B Coyne (Pty) Ltd v A Sinco Trading Co Ltd 1971 (1) SA 624 (W). Bock's was overruled by VIVIER J (WATERMEYER J concurring) in Hare v Banimar Shipping Co SA 1978 (4) SA 578 (C), so I cannot accede to the first part of his request. Am I to follow the judgment of HIEMSTRA J in the Gerald B Coyne matter? I think not.

B In Ferguson and Another v Pedersen 1926 WLD 246 TINDALL J (as he then was) held that this Court had no jurisdiction to order the arrest of a peregrinus of the country as a whole in order to found jurisdiction where, at the time that the order was sought, the peregrinus was outside the Court's area of jurisdiction but inside the Union. That this C expressed the position at common law seems never to have been doubted (see Pollak South African Law of Jurisdiction at 123; Kahn Annual Survey of South African Law (1960) at 405 - 406). Similar views are to be found in Ex parte Goldstein 1916 CPD 483 and Holland v Johnstone & Co Ltd 1925 CPD 132.

The break with tradition appears to have occurred in Koppe & Co v D Accreylon Co Inc 1948 (3) SA 591 (T). That was an application for the attachment to found jurisdiction of property outside the Transvaal but within the Union. ROPER J had occasion to consider s 6 of the Administration of Justice Act 27 of 1912, which dealt specifically with writs of arrest directed against persons, as opposed to their property, E issued out of any Superior Court where the respondent was within the Union but outside the area of the Court's jurisdiction. It provided that the Registrar of the Court would then transmit the writ for service to the place where the respondent was present, and the writ would then be executed by the proper officer in accordance with the Rule of Court at that place. The learned Judge seems to have concluded (at 593) that this F section extended the Court's jurisdiction in respect of the arrest of persons beyond its geographical borders.

As was pointed out in the Banimar Shipping case supra, at 581, this judgment was not in accordance with the judgment in Ferguson's case supra to which ROPER J did not refer. The real relevance of the judgment G to the decision of the present matter lies in the fact that, since the Administration of Justice Act did not deal with extraterritorial attachment of property, it was argued that s 112 of the South Africa Act 1909 extended the jurisdiction of the Court so as to enable it to order the attachment of property outside its area and which it was not otherwise empowered to do. That section provided that:

'The Registrar of every Provincial Division of the Supreme Court of H South Africa, if thereto requested by any party in whose favour any judgment or order has been given or made by any other Division, shall, upon the deposit with him of an authenticated copy of such judgment or order and on proof that the same remains unsatisfied, issue a writ or other process for the execution of such judgment or order, and thereupon such writ or other process shall be executed in like manner as if it had been originally issued from the Division of which he is Registrar.'

ROPER J declined to so hold. In his view, this section did not deal with jurisdiction. Section 112 of the South Africa Act was replaced by s 26

Slomowitz AJ

(1) of the Supreme Court Act 59 of 1959. It is on that section as presently amended that Mr Werksman places reliance, and it was also on A that section in its original form that HIEMSTRA J relied in coming to the conclusion which he did in the Gerald B Coyne case supra.

VIVIER J pointed out in the Banimar Shipping case supra at 580 that:

'The only material...