Trivett & Co, (Pty) Ltd and Others v WM Brandt's Sons & Co Ltd and Others

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Botha JA, Holmes JA, Jansen JA and Muller JA
• Judgment Date: 05 May 1975
• Citation: 1975 (3) SA 423 (A)
• Hearing Date: 20 March 1975
• Court: Appellate Division

Botha, J.A.:

On 10 July 1974 the Natal Provincial Division, purporting to sit as a Colonial Court of Admiralty in terms of sec. 2 (1) of the Colonial Courts of Admiralty Act, 1890 (53 G and 54 Vict. C. 27), granted, at the instance of the first respondent, an order, with costs against certain of the defendants, appointing a commissioner for the examination of such claims against the proceeds of the sale of the ship, Waikiwi Pioneer, sold by order of Court, as may be lodged with him, and for the determination of their nature and the amounts thereof, to enable the Court to decide their proper order of H preference.

The application for the order was resisted on the ground that the Republic of South Africa having ceased to be a "British possession" within the meaning of that expression in sec. 2 (1) of the Colonial Courts of Admiralty Act, 1890, the several Provincial and Local Divisions of the Supreme Court of South Africa were no longer Colonial Courts of Admiralty with the jurisdiction conferred upon such Courts by the said Act, and that the order prayed for could, therefore, not properly be made by the Natal Provincial Division sitting as a Colonial Court of Admiralty under the Act of 1890. The

Botha JA

Court a quo held, however, that the Colonial Courts of Admiralty Act, 1890, was a law in force in the Union of South Africa immediately prior to the commencement of the Republic of South Africa Constitution Act, 32 of 1961, and that sec. 107 of A the latter Act accordingly provided for its continuation in relation to the Republic until repealed or amended by competent authority. The appellants now appeal to this Court against the order of the Court a quo.

Sec. 2 (1) of the Colonial Courts of Admiralty Act, 1890, provides as follows:

"(1)

B Every Court of law in a British possession, which is for the time being declared in pursuance of this Act to be a Court of Admiralty, or which, if no such declaration is in force in the possession, has therein original unlimited civil jurisdiction, shall be a Court of Admiralty, with the jurisdiction in this Act mentioned, and may for the purpose of that jurisdiction exercise all the powers which it possesses for the purpose of its other civil jurisdiction, and such Court in reference to the jurisdiction conferred by this Act is in C this Act referred to as a Colonial Court of Admiralty. Where in a British possession the Governor is the sole judicial authority, the expression 'Court of law' for the purposes of this section includes such Governor."

The expression "British possession" is by sec. 18 (2) of the Interpretation Act, 1889 (52 and 53 Vict. C. 63) defined as:

"Any part of Her Majesty's Dominions exclusive of the British D Islands, and of British India, and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature shall, for the purposes of this definition, be deemed to be one British possession."

The expression "unlimited civil jurisdiction" is defined by sec. 15 of the Colonial Courts of Admiralty Act, 1890, as -

"civil jurisdiction unlimited as to the value of the E subject-matter at issue, or as to the amount that may be claimed or recovered".

No Court of law in South Africa has, in terms of sec. 2 (1) as read with sec. 3 (a) of the Colonial Courts of Admiralty Act, 1890, been declared to be a Colonial Court of Admiralty, but the several Divisions of the Supreme Court in South Africa F became Colonial Courts of Admiralty by virtue of their having unlimited civil jurisdiction in a British possession as envisaged by the said sec. 2 (1). (Tharros Shipping Corporation S.A. v Owner of the Ship "Golden Ocean", 1972 (4) SA 316 (N) at pp. 318 - 319).

The jurisdiction of Colonial Courts of Admiralty are prescribed as follows by sec. 2 (2) of the Colonial Courts of Admiralty Act, 1890:

"The jurisdiction of a Colonial Court of Admiralty shall, G subject to the provisions of this Act, be over the like places, persons, matters, and things, as the Admiralty jurisdiction of the High Court in England, whether existing by virtue of any statute or otherwise, and the Colonial Court of Admiralty may exercise such jurisdiction in like manner and to as full an extent as the High Court in England, and shall have the same regard as that Court to international law and the comity of nations."

It is clear that the four British Colonies which in 1910 became H the Union of South Africa in terms of sec. 4 of the South Africa Act, 1909 (9 Edward VII, C. 9) were British possessions within the meaning of that expression in sec. 2 (1) of the Colonial Courts of Admiralty Act, 1890, and that every court of law which in those Colonies had unlimited civil jurisdiction, became, in terms of that section, a Colonial Court of Admiralty with the jurisdiction conferred by the 1890 Act.

The Union of South Africa was clearly also a British possession within the meaning of that expression in sec. 2 (1) of the 1890 Act and it is, therefore, also clear that the several Divisions of the Supreme Court of the Union of

Botha JA

South Africa also became Colonial Courts of Admiralty in terms of the said sec...