Tsung v Industrial Development Corporation of SA Ltd

• Jurisdiction: South Africa

Tsung v Industrial Development Corporation of SA Ltd
2006 (4) SA 177 (SCA)

2006 (4) SA p177

Citation	2006 (4) SA 177 (SCA)
Case No	79/05
Court	Supreme Court of Appeal
Judge	Harms JA, Farlam JA, Cameron JA, Jafta JA and Cachalia AJA
Heard	March 10, 2006
Judgment	March 23, 2006
Counsel	G D van Schalkwyk SC (with G Selikowitz) for the appellant.; M J Fitzgerald SC (with M Mngomelulu) for the respondent.

Flynote : Sleutelwoorde F

Jurisdiction — Attachment ad confirmandam jurisdictionem — Claim sounding in money by G incola against foreign peregrinus — Peregrinus consenting to jurisdiction after execution of writ of attachment — Such consent not undoing attachment.

Jurisdiction — Attachment ad confirmandam jurisdictionem — Submission to jurisdiction by peregrinus after execution of attachment ordered by Court at the H instance of an incola — Such submission not having the effect of undoing attachment order.

Jurisdiction — Attachment ad confirmandam jurisdictionem — Submission to jurisdiction — Effect thereof — Submission to jurisdiction after writ of attachment executed — Attachment cannot be substituted with submission to jurisdiction after execution of writ. I

Headnote : Kopnota

Where an incola plaintiff has a claim sounding in money against a foreign peregrinus defendant and the plaintiff secures and executes an ex parte order against the defendant for an attachment of his assets to found or confirm jurisdiction, the defendant's subsequent consent to jurisdiction will not J

2006 (4) SA p178

undo the attachment. The plaintiff is therefore under no duty to alert the defendant of his intention to seek an order of A attachment and first to invite him to consent to jurisdiction. (Paragraphs [9] and [13] at 183C/D and 185D.)

The decision in Tsung v Industrial Development Corporation of SA Ltd confirmed.

Cases Considered

Annotations

Reported cases B

Southern African cases

American Flag plc v Great African T-Shirt Corporation CC; American Flag plc v Great African T-Shirt Corporation CC: In re Ex parte Great African T-Shirt Corporation CC 2000 (1) SA 356 (W): referred to C

Associated Marine Engineers (Pty) Ltd v Foroya Banki PF 1994 (4) SA 676 (C): followed

Bedeaux v McChesney 1939 WLD 128: followed

Bettencourt v Kom and Another (National Airways Corporation (Pty) Ltd Intervening) 1994 (2) SA 513 (T): applied

Blue Continent Products (Pty) Ltd v Foroya Banki PF 1993 (4) SA 563 (C): applied D

Bocimar NV v Kotor Overseas Shipping Ltd 1994 (2) SA 563 (A): referred to

Bydawell v Chapman NO and Others 1953 (3) SA 514 (A): dictum at 521C - E applied

Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995): referred to E

Commissioner for Inland Revenue and Another v Isaacs NO and Others 1960 (1) SA 126 (A): referred to

Dabelstein and Others v Lane and Fey NNO 2001 (1) SA 1222 (SCA): referred to

Du Plessis NO v Strauss 1988 (2) SA 105 (A): referred to F

Elscint (Pty) Ltd and Another v Mobile Medical Scanners 1986 (4) SA 552 (W): referred to

Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A): referred to

Ex parte Kaplan and Others NNO: In re Robin Consolidated Industries Ltd 1987 (3) SA 413 (W): dictum at 423A - D G applied

Ghomeshi-Bozorg v Yousefi 1998 (1) SA 692 (W): criticised and distinguished

Hay Management Consultants (Pty) Ltd v P3 Management Consultants (Pty) Ltd 2005 (2) SA 522 (SCA): referred to

Himelsein v Super Rich CC and Another 1998 (1) SA 929 (W): referred to H

Hugo v Wessels 1987 (3) SA 837 (A): referred to

Jamieson v Sabingo 2002 (4) SA 49 (SCA): distinguished

Kasimov and Another v Kurland 1987 (4) SA 76 (C): followed

Kommissaris van Binnelandse Inkomste en 'n Ander v Willers en Andere 1994 (3) SA 283 (A): referred to

Naylor v Jansen; Jansen v Naylor [2005] 4 All SA 26 (SCA): confirmed I

Owners of SS Humber v Owners of SS Answald 1912 AD 546: referred to

Pearl Assurance Co Ltd v Union Government 1934 AD 560 (PC): referred to

Rainbow Diamonds (Edms) Bpk en Andere v Suid-Afrikaanse Nasionale Lewensassuransiemaatskappy 1984 (3) SA 1 (A): dictum at 14I applied

Rosenberg and Another v Mbanga and Others (Azaminle Liquor (Pty) Ltd Intervening) 1992 (4) SA 331 (E): referred to J

2006 (4) SA p179

SA Permanent Building Society v Messenger of the Court, Pretoria, and Others 1996 (1) SA 401 (T): referred to A

Siemens Ltd v Offshore Marine Engineering Ltd 1993 (3) SA 913 (A): referred to

Small Business Development Corporation v Amey 1989 (4) SA 890 (W): criticised and distinguished

Steytler NO v Fitzgerald 1911 AD 295: referred to B

Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A): referred to

Utah International Inc v Honeth and Others 1987 (4) SA 145 (W): referred to

Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (In Liquidation) 1987 (4) SA 883 (A): referred to

Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another 1992 (4) SA 202 (A): referred to C

Zakowski v Wolff 1905 TS 32: referred to.

Foreign cases

Ellerton Syndicate v Hutchings (1893) 3 CTR 124: applied

Gillick v West Norfolk & Wisbeck Area Health Authority [1986] 1 AC 12: referred to D

Perre v Apand Pty Ltd (1999) 198 CLR 180: referred to.

Case Information

Appeal from a decision in the Cape Provincial Division (Traverso DJP). The facts appear from the judgment of Harms JA.

G D van Schalkwyk SC (with G Selikowitz) for the appellant. E

M J Fitzgerald SC (with M Mngomelulu) for the respondent.

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following:

Anderson & Coleman Ltd v Universal Trading Co 1948 (1) SA 1277 (W)

Bradbury Gretorex Co (Colonial) Ltd v Standard Trading Co (Pty) Ltd 1953 (3) SA 529 (W) F

Jones v Krok 1995 (1) SA 677 (A) at 685B

Longman Distillers Ltd v Drop Inn Group of Liquor Supermarkets (Pty) Ltd 1990 (2) SA 906 (A) at 941E - G

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E - 635C G

Weissglass NO v Savonnerie Establishment 1992 (3) SA 928 (A) at 937C - F.

Cur adv vult.

Postea (March 23). H

Judgment

Harms JA:

[1] This appeal raises the crisp question whether a peregrine defendant, by consenting belatedly to the local court's jurisdiction, can undo an attachment founding or confirming jurisdiction. Alleging that they have a claim of some R40m I against the appellants, in terms of s 424 of the Companies Act 61 of 1973, for fraudulently or recklessly running a local company, the respondents, who are incolae (resident locally), sought and obtained, ex parte, an order for the attachment of certain immovable properties and shares belonging to the appellants in the Cape High J

2006 (4) SA p180

Harms JA

Court. The appellants, who are resident in Hong Kong, are peregrini, not only of that court but also of the Republic. A They became aware of respondents' intention to attach, and the existence of the order, only after the actual attachment. On the return day, they opposed the finalisation of the order on the ground that, had they known of the intended proceedings, they would have consented to jurisdiction and, in any event, since the attachment, they have, in B fact, so consented unconditionally. They did not contend that the respondents were not otherwise entitled to the order sought. Traverso DJP held that this consent was too late and could not undo the attachment, and she issued a final order. Against this, the appellants appeal with the High Court's leave. C

[2] In order to avoid confusion, it should be pointed out, at the outset, that what is said in this judgment is intended to apply to those cases where the plaintiff (or applicant) is an incola and the defendant (or respondent) is a foreign peregrinus, ie someone who is a peregrinus of the Republic, and the claim is one sounding in money. The arrest or D attachment of goods of a local peregrinus (ie someone who is an incola of the country, but not of the particular court) to found or confirm jurisdiction is by statute not permitted. [1]

[3] In the present context, the difference between an arrest or attachment ad fundandam jurisdictionem and one ad E confirmandam jurisdictionem is of no consequence. [2] The reason is that, if the defendant is a peregrinus and whether or not the court has jurisdiction over the cause, eg because the cause of action arose within the jurisdiction or jurisdiction exists ratione delictus or ratione contractus, an attachment or arrest is essential for the exercise of jurisdiction: 'A recognised F ratio jurisdictionis by itself will not do.' [3] With 'jurisdiction' is meant the power to adjudicate upon a particular case and to give effect to the judgment. [4]

[4] The practice of arrest or attachment to found or confirm jurisdiction was firmly established in Holland by the 17th century, in the interest of incolae and from considerations of G commercial convenience. It enabled them to proceed in local courts against peregrini who were, for the time being, physically within the jurisdiction area of the court, or possessed property there. [5] In addition to founding or confirming jurisdiction and to commence proceedings, an attachment had, since those days, an H

2006 (4) SA p181

Harms JA

additional function, and that was the provision of security, enabling the plaintiff, eventually, to execute in his own A jurisdiction. Pending the finalisation of the proceedings, the defendant could not alienate or encumber the attached property. [6] This function of attachment has since repeatedly been highlighted by our courts, including by this Court some months ago. [7] B

[5] The arrest of a peregrinus, it would appear, was used not only for founding or...