Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (In Liquidation)

• Jurisdiction: South Africa
• Judge: Viljoen JA, Smalberger JA, Vivier JA, Boshoff AJA and M T Steyn AJA
• Judgment Date: 17 September 1987
• Citation: 1987 (4) SA 883 (A)
• Hearing Date: 12 March 1987
• Court: Appellate Division

Viljoen JA:

During June 1981 the appellant, an Italian company F which at the time carried on business in Milan, Italy, instituted an action in the Durban and Coast Local Division against Carolina Collieries (Pty) Ltd (hereinafter referred to as 'Carolina') claiming from Carolina, which had its head office 'tn Johannesburg, Transvaal, and operated a colliery in Carolina, Transvaal, damages for breach of contract, interest G and costs. Carolina resisted the claim and instituted a counterclaim. The matter was heard during March 1985 and in pursuance of a judgment handed down on 7 May 1985 (which is fully reported in 1985 (3) SA 633 (D), hereinafter referred to as 'the report'), the learned trial Judge, Kumleben J, dismissed the claims in convention and reconvention with costs. H Leave to appeal having been granted by the Court a quo to appeal to this Court against that part of the order whereby the learned trial Judge dismissed the appellant's claim with costs, an appeal was duly noted and appeal proceedings were instituted. On 25 February 1986 a final winding-up order was made against Carolina. The liquidatrix who had received proper notice that the appellant desired to prosecute the appeal I indicated that she did not intend to become involved in the appeal proceedings or to intervene in any way. Before this Court there was consequently no appearance for Carolina. An application at the commencement of the argument on appeal that the name of the respondent should be altered to 'Carolina J Collieries (Pty) Ltd (in Liquidation)' was granted.

Viljoen JA

A As a perusal of the report reveals, the learned trial Judge, even though he upheld a special plea that, despite a written consent to the jurisdiction, the trial Court did not have jurisdiction to try the matter, nevertheless proceeded to state his views on the breach of contract issue and decided that against the appellant as well.

The only ground advanced in this Court in support of a B contention that the Court a quo had jurisdiction was the written consent to the jurisdiction signed on behalf of Carolina. The facts which are relevant for the purposes of the adjudication of this issue are, as set out in the report at 637B - D, that the parties were neither domiciled nor resident within the area of jurisdiction of the Court a quo, nor was the C contract concluded or to be performed within such area. Both parties were therefore peregrini of the Court a quo. They differed in status, however, in the sense that the defendant was, even though a peregrinus of the Court, an incola of the Republic of South Africa, whereas the appellant was not - it was an out-and-out peregrinus.

D Jurisdiction ('gerigtsdwang') is defined by Vromans, following Berlichius, as

'a lawful power to decide something in a case or to adjudicate upon a case, and to give effect to the judgment, that is, to have the power to compel the person condemned to make satisfaction'.

See Wright v Stuttaford & Co 1929 EDL 10 at 42. Insofar as E South African Courts are concerned, their jurisdiction is the right or authority of entertaining actions or other legal proceedings which is vested in them by the State. When the Supreme Court of South Africa was created on the establishment of the Union of South Africa by the South Africa Act, 9 Edw VII F ch 9 s 95, the Supreme Courts of the former colonies became Provincial or Local Divisions of the Supreme Court of South Africa. These Divisions retained the jurisdiction which the Courts to which they succeeded enjoyed.

The statute which currently governs the system of the Supreme Court in the Republic of South Africa, its several Divisions and their respective jurisdictions and powers is the Supreme G Court Act 59 of 1959 (hereinafter referred to as 'the Act'). According to it the original jurisdiction of each Division is territorial - it is to be exercised within a particular geographical area specified in the First Schedule to the Act. Section 19(1) of the Act provides broadly that a Provincial or Local Division shall have jurisdiction over all persons H residing or being in and in relation to all causes arising within its area of jurisdiction and all other matters of which it may according to law take cognisance.

In view of the indefinite wording of s 19(1) of the Act and its predecessors, no doubt deliberately so couched because the intention of the Legislature obviously was to interfere with the common law as little as possible, recourse must be had to I the principles of the common law to ascertain what competency each of the Supreme Courts in the Republic of South Africa possesses to adjudicate effectively and pronounce upon a matter brought before and heard by it. In the course of time it seems that as our law on jurisdiction developed, it was also influenced to a minor extent by principles of the private J international law applicable in other legal systems.

Viljoen JA

For the purposes of this appeal it will be convenient to A distinguish between the so-called grounds of jurisdiction by virtue of which a Court would normally ipso jure have jurisdiction and jurisdiction which is conferred on a Court. In the former category the grounds of jurisdiction - the rationes jurisdictionis - may be classified. In Einwald v The German West African Company (1887) 5 SC 86 De Villiers CJ B said at 91 that the grounds upon which jurisdiction can be exercised in respect of any contract over a defendant without his consent, express or implied, are threefold,

'viz by virtue of the defendant's domicile being here, by virtue of the contract either having been entered into here or having to be performed here, and by virtue of the subject-matter in an action in rem being situated in this C Colony'.

In the second category of cases whereby jurisdiction may be conferred upon a Court, attachment of the goods or arrest of the person ad fundandam jurisdictionem as well as consent to jurisdiction (known by the term 'prorogatio ' in Roman-Dutch law) may be classified. In this respect the learned trial Judge refers, at 639 of the report, to Vromans who observes in his D treatise De Foro Competenti 1.1.7 n 12:

'Uyt het Gemeine Reat is een Rester competent, of door sig selfs, ore door toeval'

and points out that Vromans proceeds to classify, among others, both consent and attachment as instances of jurisdiction 'door E toeval'. Among the others Vroman includes

'door saaks t' samehang, in saken van eene natuur siinde en die gevolglyk van den anderen niet konnen gescheiden werden'.

Cf Roberts Construction Co Ltd v Wilcox Bros (Pty) Ltd 1962 (4) SA 326 (A).

It seems to me - and I express this view en passant and of course obiter - that there is, insofar as South African law in concerned, another type of case, arising from the provisions F of s 9 of the Act, which may be added to this category. This section reads as follows:

'(1) If any civil cause, proceeding or matter has been instituted in any Provincial or Local Division, and it is made to appear to the Court concerned that the same may be more conveniently or more fitly heard or determined in another Division that Court may, upon application by any party thereto G and after hearing all other parties thereto, order such cause, proceeding or matter to be removed to that other Division.

(2) An order for removal under ss (1) shall be transmitted to the Registrar of the Division to which the removal is ordered, and upon the receipt of such order that Division may hear and determine the cause, proceeding or matter in question and shall in that event apply the practice governing the Division in H which it was instituted and the law according to which that Division would but for the removal have heard and determined such cause, proceeding or matter.'

In Fraser v Lee 1904 TS 377 an application by the defendant, the plaintiff consenting, under s 29 of Proc 14 of 1902 (the forerunner in the Transvaal of s 9 of the Act), for the venue to be changed from the Supreme Court of the Transvaal to the I Witwatersrand High Court, was granted. The latter Court also had jurisdiction. At 378 Solomon J said:

'It may be that if the Johannesburg Court had no jurisdiction whatsoever, either over the cause or over the defendant, by reason of the fact that he resided out of the jurisdiction of the Court, some...