The Land and Agricultural Development Bank of South Africa t/a The Land Bank v S A Eels (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Moosa J
• Judgment Date: 03 December 2008
• Docket Number: 1587/2006
• Court: Cape Provincial Division
• Hearing Date: 13 November 2008
• Citation: 2008 JDR 1455 (C)

Moosa J:

Introduction

[1] The plaintiff instituted an action against the defendants in terms of which it claimed against them payment of certain monies arising from certain financial advances made by it in terms of the Land and Agricultural Development Bank Act, 15 of 2002 ("the Act") in the form of loan agreements, instalment sale agreements and covering bonds as well as from

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Moosa J

suretyship agreements securing such advances. Prior to instituting such action, plaintiff brought an Application against first defendant, in the form of a rule nisi for the attachment of assets as contemplated in section 33(4) of the Act. The rule nisi was granted and the order was subsequently made final. The present action was instituted against first defendant in pursuance of such final order and against the other defendants in the ordinary course.

Special Pleas

[2] The defendants raised certain Special Pleas. In terms of such pleas, they pleaded firstly, that this court does not have jurisdiction in respect of the third defendant in the absence of confirming or founding jurisdiction ("First Special Plea"); secondly, that the court does not have jurisdiction to declare the immovable properties, referred to in the Plaintiff's Particulars of Claim, executable inasmuch as those properties are situate in the Eastern Cape ("Second Special Plea") and thirdly, that the relief sought in prayers (d) and (e) of the Plaintiff's Particulars of Claim are not competent on the basis that the plaintiff has failed to address a written demand to the first defendant in terms of section 33(3)(b)(i) of the Act ("Third Special Plea"). I will deal with each of these special defences ad seriatim.

First Special Plea: Absence of Jurisdiction in respect of Third Defendant

[3] It is common cause that the third defendant is a foreign company registered according to the laws of the United Kingdom of Great Britain and that it is duly registered in London. Its indebtedness to the plaintiff arises from a written Deed of Suretyship (annexure "M") in terms of which it bound itself as surety and co-principal debtor to the plaintiff for the obligation of first defendant. Plaintiff submitted that this court has the necessary jurisdiction to entertain the claim against third defendant on the grounds that the Deed of Suretyship was signed on behalf of plaintiff at Pretoria, Gauteng on 9 February

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2005 and, in terms of clause 15 of the said Suretyship, third respondent agreed and submitted to the jurisdiction of the Magistrate's Court and the High Court of South Africa. This is disputed by third defendant who pleaded that this court does not have jurisdiction in the absence of a court order confirming and founding jurisdiction. I am, therefore, required to determine that issue.

[4] The determination of that issue turns around the interpretation of clause 15 of the Deed of Suretyship. A convenient point of departure would be to interpret the meaning and import of clause 15 of the Deed of Suretyship which makes express provision for jurisdiction. It reads as follows:

"15. JURISDICTION

i) 15.1 For the purpose of all or any proceedings herein, the Surety hereby consents to the jurisdiction of the of the Magistrate's Court having jurisdiction under Section 28 of the Magistrate's Court Act (Act no. 32 of 1944, as amended), notwithstanding that such proceedings are otherwise beyond its jurisdiction. This clause shall be deemed to constitute the required consent conferring jurisdiction upon the said...