Uniroyal Incorporated v Thor Chemicals SA (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Shearer J
• Judgment Date: 03 October 1983
• Hearing Date: 15 September 1983
• Court: Durban and Coast Local Division

Shearer J:

On 21 October 1982 an order was, at the instance of the respodent, granted in this Division authorising and directing the deputy sheriff to attach all the applicant's right, title and interest in and to 45 000 "B" shares in the company Orchem (Pty) Ltd ad confirmandam jurisdictionem in an C action in which the respondent claimed payment by the applicant of the South African equivalent of US dollars 56 560,05 as damages. The cause of action relied upon was, for the purposes of this application, accepted to be one which arose within the area of jurisdiction of this Court. To avoid confusion I shall refer to the parties as the plaintiff (the D present respondent) and the defendant (the present applicant). The plaintiff is an incola of this Division and the defendant a peregrinus of the Republic of South Africa.

The defendant now applies to set aside and rescind that order and also the writ issued and the attachment made pursuant thereto. The writ was issued and the attachment effected by the deputy sheriff of Johannesburg at the address which, according E to the affidavits before me, is that of the registered office of Orchem (Pty) Ltd. It is common cause that the share certificates were outside the Republic of South Africa and were not seized. It was also accepted for the purposes of the present application that the share register or principal share register of the company is in Johannesburg. Some point was made F in heads of argument by Mr Browde for the defendant that an attachment at the situs of the share register as opposed to the situs of the share certificates themselves was not attended by the degree of effectiveness that would persuade this Court to exercise jurisdiction against a peregrinus (see Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A) G ). This proposition was not pressed in argument before me and, while it is unnecessary, because of my conclusions on the other aspects of the defendant's case, for me to make any finding in this regard, I am disposed to consider this submission illfounded as the situs of the shares is, in my view, clearly the place of registration of the shares - in H this case Johannesburg (cf Farrar's Estate v Commissioner for Inland Revenue 1955 (1) SA 270 (A) at 278 and 279 where CENTLIVRES CJ conveniently collates the authorities).The place of registration is where, as between the shareholders and the company, effective dealing can take place. (See R v Williams and Another [1942] AC 541; [1942] All ER 95 at 9.)

The defendant's main contention is that it is not competent for one Division of the Supreme Court to order the attachment of the person or property of a peregrinus to the Republic outside the area of its

Shearer J

jurisdiction to found or confirm jurisdiction in an action...