Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Steyn CJ, Ogilvie Thompson JA, Botha JA, Potgieter JA and Jansen JA
• Judgment Date: 25 February 1969
• Citation: 1969 (2) SA 295 (A)
• Hearing Date: 12 November 1968
• Court: Appellate Division

Ogilvie Thompson, J.A.:

The facts appear from the judgment of POTGIETER, J.A., which I have had the advantage of studying. While I am in accord with much of what is said in that judgment and concur in the upholding A of the appeal, it is not clear to me that the principle of effectiveness, as applied, in conformity with the established practice of our Courts, to attachments to found or confirm jurisdiction, is decisive in the present appeal. I however agree that, in the particular circumstances, appellant's claim for R3,236 against respondent is not attachable at the latter's instance. I proceed to indicate the reasons B which have led me to this conclusion on that vital aspect of the case which evoked disagreement in the two Courts below. I hereafter refer to appellant as defendant, and to respondent as plaintiff.

At the outset, one or two preliminary matters must, I think, be premised. First, it is, I consider, beyond doubt that, although the contract giving rise to this litigation was concluded in the Transvaal, C an attachment was essential in order to found or confirm jurisdiction against the peregrine defendant. In this connection, I agree with the Court a quo that the law is correctly set out by Herbstein and van Winsen, Civil Practice, 2nd ed., p. 704, in the following terms, viz.:

'Even if the Court has jurisdiction upon one or other of the common law grounds it is still necessary for an incola or peregrine plaintiff to D attach the property or person of a peregrine defendant to confirm or strengthen the jurisdiction already possessed by the Court . . . In accordance with this practice the Court has held that attachment is necessary even if the contract was made and is to be performed within the jurisdiction of the Court.'

Secondly, I remain unpersuaded that the two Courts below erred in E deciding that defendant had not discharged the onus of establishing its contention that it had, prior to the attachment in issue, ceded - as distinct from purporting to make an assignment of all its rights and obligations without plaintiff's prior consent - its claim for R3,236 against plaintiff. This appeal accordingly falls to be decided upon the basis that at the time when, pursuant to the order by BOSHOFF, J., the F attachment in issue was made, defendant was asserting a claim against plaintiff for the aforementioned R3,236, being the unpaid balance of the purchase price of the oven. Thirdly, it is, I think, established that an existing claim by the prospective peregrine defendant against the prospective incola plaintiff is, ordinarily speaking, attachable in order to found jurisdiction in the proposed action (Ex parte Ivan G Pedersen Ltd., 1929 W.L.D. 109, and Ferguson & Timpson Ltd v African Industrial and Technical Services (Pty.) Ltd., 1949 (4) SA 340 (W)). Fourthly, while I agree that, both historically and logically, the procedure of attachment to found or confirm jurisdiction is - as my Brother POTGIETER'S judgment makes clear - closely correlated with the principle of effectiveness, it appears to me to be indisputable that H this latter principle has been considerably eroded by the long-established practice of our Courts, as exemplified in decisions like Ex parte Smith, 1912 CPD 45, and McKinery Construction Co. Ltd v Aktiebolagat Tratalja, 1922 CPD 24 (and cf. Central African Airways Corporation v Vickers Armstrong Ltd., 1956 (2) SA 492 (FC) and Herbstein & van Winsen, supra, p. 708), to permit the attachment, to found or confirm jurisdiction, of property whose value bears no realistic relationship to the amount of the claim advanced in the proposed litigation.

Ogilvie Thompson JA

The authorisation of such attachments to found or confirm jurisdiction - which Pollak, South African Law of Jurisdiction, pp. 28 and 65, calls attachment of property of trifling value - has, no doubt, largely been actuated by the desire of our Courts to assist incolae to litigate at home. Nevertheless, as my Brother POTGIETER points out, in A no reported case has an attachment of admittedly worthless property been authorised. On the view I take of the present case, it is, however, not necessary - and I accordingly make no attempt - to draw the line of demarcation between property which should be regarded as worthless (and, therefore, unattachable) and property whose value, B although 'trifling' in relation to the claim to be advanced, is sufficient to render it attachable. For the purposes of the present case it suffices to say that, in conformity with the long-established practice of our Courts, defendant's afore-mentioned claim of R3,236 against plaintiff is, as regards value, plainly attachable to found jurisdiction, notwithstanding that it falls far short of the amount of plaintiff's claim against defendant.

C Against the above background I now address myself to the specific question indicated at the outset of this judgment, viz.: whether defendant's claim for R3,236 against plaintiff is attachable at the instance of the latter. It is, I think, correct to say that a Court which initially has jurisdiction retains that jurisdiction until the suit is concluded. See R v de Jager, 1903 T.S. 36 at p. 38, and Milner D v. Friedman, 1911 T.P.D. 935 citing Voet, 5.1.64, which latter DE VILLIERS, J.P. in Milner's case rendered as follows:

'. . . For when once the action has been commenced, there it must also be brought to an end. The defendant cannot claim to have the case removed to some other tribunal if perhaps during the course of the suit E the reason for his subjection to the jurisdiction of such tribunal should cease to exist.'

(Gane's translation, vol. 2, p. 77, though not identically worded, is substantially the same). Accordingly, it appears to me that a Court's jurisdiction, founded or confirmed by an attachment of property validly made, in a suit against a peregrinus will continue notwithstanding that, after the suit has been launched, the attached property becomes valueless. In the present case the defendant had, prior to BOSHOFF J's F order, demanded payment of the R3,236 and it has at no time resiled from its attitude that this sum, the balance of the purchase price, is due and payable by plaintiff. The averment, albeit unsuccessful, of cession of this claim carried with it the assertion of the claim's continued existence.

G Those being the facts, there is, I consider, much to be said for the view that the Court should assist the plaintiff incola by attaching the defendant's presently existing claim against plaintiff for R3,236 to found or confirm a jurisdiction which, on the principle of the three authorities last-cited above, will be sufficiently sustained throughout H plaintiff's proposed suit irrespective of what the ultimate fate of that claim may prove to be at the conclusion of the litigation. After some deliberation, I have, however, come to the conclusion that these considerations must yield to those indicated below.

Plaintiff's claim, as finally formulated, against defendant is that it is, by reason of the latter's breach of the contract, entitled to repayment of the R12,944 already paid on account of the purchase price. Implicit in this claim is the contention that plaintiff is under no liability to pay

Potgieter JA

defendant the balance of the purchase price amounting to R3,236. That is to say, plaintiff's action carries with it the negation of the existence, at all material dates, of any valid claim against it for R3,236. Yet it is that claim, the very existence whereof is thus A repudiated by plaintiff, which plaintiff seeks to attach. It is true that the dispute between the parties regarding this R3,236 claim can only be resolved by final judgment in the action: but plaintiff is in the dilemma that the postulated present existence of defendant's claim for R3,236 is wholly irreconcilable with a prima facie valid cause of action to recover from defendant the R12,944 already paid by plaintiff, B and conversely. In approaching the Court with the assertion that it is entitled to recover the R12,944 already paid, plaintiff thus itself proclaims that the R3,236 claim does not exist. Although permissible in appropriate cases, attachment to found jurisdiction of a prospective peregrine defendant's claim against a prospective incola plaintiff is a C field wherein that exceptional remedy should, in my opinion, be applied with the 'care and caution' mentioned in Ex parte Acrow Engineers (Pty.) Ltd., 1953 (2) SA 319 (T) at p. 321. Where, as in the present case, it is implicit in the prospective incola plaintiff's action that the prospective peregrine defendant's claim which is sought to be attached does not exist at all, the Court should - as was done under similar, D though not identical, circumstances in Ferguson's case, supra - in my opinion decline to permit the plaintiff incola thus to approbate and reprobate and should, in my judgment, decline to authorise the attachment.

For the foregoing reasons, I agree that the appeal should be allowed and concur in the order proposed by my Brother POTGIETER.

E BOTHA, J.A. and JANSEN, J.A., concurred in the above judgment.

Judgment

Potgieter, JA.:

The appellant, to whom I shall refer as defendant, is an Australian company and, as such, a peregrinus, while the respondent, F to whom I shall refer as plaintiff, is a South African company and, as such, an incola.

During March, 1964, and at Johannesburg, plaintiff, through its agent, purchased a bakery oven from defendant, acting through its agent, for the sum of R16,180. The oven was installed at plaintiff's bakery and in G terms of the agreement between the parties the sum of R12,944 was paid on delivery. It was agreed that the balance of R3,236 would become payable after the oven had been tested and found satisfactory. Plaintiff avers that the oven was found not to be in accordance with the specifications, that neither...