Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd

• Jurisdiction: South Africa
• Judge: Van Zijl JP, Watermeyer J and Vivier J
• Judgment Date: 15 February 1978
• Court: Cape Provincial Division
• Date: 15 February 1978
• Hearing Date: 14 December 1977
• Citation: 1978 (2) SA 391 (C)

Watermeyer J:

This is an appeal to the Full Bench against a decision of FRIEDMAN J dismissing with costs an application by the appellant for an D order setting aside the attachment of a certain tug ad fundandam jurisdictionem or ad confirmandum jurisdictionem, or alternatively for an amendment of that order.

The facts of the case were fully set out by FRIEDMAN J in his judgment (reported in 1977 (4) SA 682 (C)) and there is consequently no need for me to repeat them. FRIEDMAN J also set out the arguments which were advanced E on the appellant's behalf and, except in so far as new points were raised before this Court, there is equally no need for me to restate them in any detail.

This Court has come to the conclusion that FRIEDMAN J was correct in refusing to set aside or amend the order for attachment and I proceed now F to set out my reasons for reaching that conclusion. For convenience I shall continue to refer to the parties, as FRIEDMAN J did, as Yorigami and Nissho respectively.

The first point raised by Mr Friedman, who appeared for Yorigami, was that para 6 of the originating affidavit upon which the attachment order was granted ex parte consisted of contentions only and not allegations of G fact, and that there was consequently insufficient proof of a cause of action to warrant the grant of an order. Whilst I do not disagree with FRIEDMAN J's rejection of this submission, there would have been more force in the submission had the only question before FRIEDMAN J been whether or not the original order ought to have been granted. That was not, however, the question he had to decide. What he had to decide was H whether the attachment order should be set aside, and this had to be decided on the original affidavit and the further affidavits which had been filed. These included an affidavit by the master of the tug, who was the one person who should have been able to explain why the tow lines parted, and he failed to offer any explanation or even to deny that it had been due to negligence on his part or that of the other members of his crew. There was also a further affidavit by Sigura in which he referred to certain new facts which had come to light in consequence of the logs and documents referred to in the order of Court made on 11 August 1977 which it was

Watermeyer J

said established negligence on the part of Yorigami itself. Mr Friedman submitted that neither the Court a quo nor this Court should have regard to these facts, relying upon the principle that an applicant should make A out his case in the originating set of affidavits and not introduce further facts in his replying affidavits. It seems to me that the answer to this submission is twofold. Firstly, these new facts were not known to Nissho when it approached the Court originally and, secondly, Sigura's affidavit was, in the proceedings under appeal, more in the nature of an opposing affidavit than a replying...