Jamieson: In re Jamieson v Sabingo (99/17038, 99/17459), Ex parte [2000] ZAGPHC 9; 2001 (2) SA 775 (W) (13 April 2000)

NOT

REPORTABLE

IN

THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: 99/17038

99/17459

DATE:13 APRIL 2000

In the ex parte application of:

JAMIESON, NEIL........................................................................................................ Applicant

In the matter between:

JAMIESON, NEIL............................................................................................................ Plaintiff

and

SABINGO,

AMINDO CESAR..................................................................................... Defendant

JUDGMENT WILLIS, J: I shall refer to the parties as plaintiff and defendant respectively. The plaintiff, an incola of the Witwatersrand sought and obtained a rule nisi ordering that the right, title and interest in a judgment of Dr Amindo Cesar Sabingo (the defendant) against Madiba Air (Pty) Ltd under Case No. 97/29219 of this court be placed under attachment to found jurisdiction in the action pending a final determination of the action - This rule nisi was issued on 13 July 1999 by Malan J. At the same time the plaintiff obtained an order granting it leave to institute action against the defendant in Angola.

It is not clear whether the rule nisi relating to the attachment has lapsed or been extended. There have been various postponements in this matter. Be this as it may, the plaintiff seeks an order that if the rule has lapsed it be reinstated and confirmed. The plaintiff, in any event, seeks an order for the confirmation of the attachment.

The defendant seeks an order that the rule nisi be 10 discharged and the attachment set aside. The application was made to found jurisdiction (ad fundandam jurisdictionem). The aforesaid judgment, i.e. the judgment of Dr Amindo Cesar Sabingo against Madiba Air (Pty) Ltd, was placed under attachment on 7 September 1999. On 19 August 1999, i.e. after the ex parte application for attachment had been heard and the order granted, but before the attachment was effected, the defendant consented to the jurisdiction of this court.

The plaintiff has instituted action against the 20 defendant for payment of the sum of US $59 196. The value of the judgment which had been attached is US $142 000 together with interests and costs. The claim arises from the alleged sale of a water purification system, a power generator and a vibrating compact roller by the plaintiff to the defendant.

The defendant resides in Luanda in Angola. The goods were to be delivered to the defendant in Angola. The plaintiff alleges that the contract was concluded in Angola. Mr Pincus, for the defendant, says that the annexurea show 30 that quotations were sent by telefax by the plaintiff in Johannesburg to the defendant in Luanda and these quotes were accepted by the defendant by telefax sent from Luanda to Johannesburg. Accordingly, Mr Pincus submits, that the contracts were concluded not in Luanda but in Johannesburg.

Apart from the fact that the plaintiff alleges the conclusion of the contract was in Luanda, in my view the principles relating to letters sent by post rather than agreements concluded by telephone should more appropriately apply to determine the place where the agreement was concluded. In my view, therefore, the agreement was indeed concluded in Luanda.

In my view it is clear that -

(a) the defendant is a pereqrinus of the whole of the Republic of South Africa,-

(b) the contract was concluded in Luanda;

(c) the performance of the contract was in Luanda.

I also conclude that the plaintiff did indeed make out a prima facie case for the attachment and that Malan J, on the facts before him, correctly granted the order which he did. In my view, the plaintiff correctly sought an order to found jurisdiction (ad fundandam

jurisdictionem) rather than simply to confirm jurisdiction (ad confirmandam jurisdictionero). Of critical importance, therefore, is whether the defendant's submission to the jurisdiction of this court on 19 August 1999 renders the attachment no longer necessary or indeed impermissible. In my view, the case of American Flag plc v Great African, T-Shirt Corporation CC 2000 (1) SA 356 (W), especially what is said at 362H, 363A-365H, 371E-J, 373H and 375G-376A make it clear that consent to jurisdiction is sufficient and attachment should not be permitted. This is a full bench decision and I am bound by it. I am nevertheless not entirely convinced of the correctness of this decision, nor that its observations about the decision by the Appellate Division in the case of Veneta Wineraria Spa v Carolina Collieries (Pty) Ltd 1987 (4) SA 883 (A) are correct. In particular, I am not convinced that the court in the American Flag case correctly divined the intentions of the Appellate Division.

I indicated to counsel for the parties that in the event that I decided to grant the relief sought by the defendant on the basis of the American Flag case, I would be very amenable to granting leave to appeal to the Supreme Court of Appeal.

As Cameron J said in the case of Himelaein v Super Rich CC and Another 1998 (1) SA 929 (W) at 936H, the position is complex and to some extent a contradictory patchwork. There clearly are a number of other authorities that favour the plaintiff in any event.

I have not had time fully to reflect on the matter but it seems to me that there may be merit in introducing a requirement as to "good cause", as to whether or not consent to jurisdiction in such a situation may dispense with an attachment. It is not difficult to imagine that serious injustices could result for both plaintiffs and defendants if an inflexible rule were to apply. The question of onus would also be important. These are matters upon which only the Supreme Court of Appeal can decide.

I am, as I have said, bound by the decision of the full bench in the American Flag case and the defendant must succeed.

Amidst the welter of postponements and other interlocutory applications a number of costs issues have been reserved. The parties settled the dispute between them as to the costs of the issues relating to the barring and removal of bar and whether or not either party took an irregular step relating to this issue.

Mr Venter submitted that the rule nisi should be confirmed with costs which costs were to include the costs of the application not

specifically provided for. Certain costs were reserved by Marais J in the order which he granted on 31 January 2000. I quote from paragraph 1.4 of that order:

The applicant' s application to reinstate the aforementioned rule nisi which was enrolled for hearing on 1 February 2000 is postponed to the date, referred to in paragraph 1.1 above and the costs of this interlocutory application reserved." I quote also from paragraph 2.2 of his order:

"The applicant's application to set aside the notice of bar as an irregular proceeding and enrolled for 1st February 2000 is postponed sine die and the costs of the application is reserved." Accordingly the following order is made:

1. The rule, nisi granted by Malan J on 13 July 1999 is discharged.

2. The attachment of the defendant's right, title and interest in the judgment of Dr Anindo Cesar Sabingo against Madiba Air (Pty) Ltd under Case No. 97/2919 of this court is set aside.

3. The plaintiff is to pay the costs of this application including all costs not specifically provided for either in agreements between the parties or by orders of this court.

4. The costs of the application to reinstate the aforementioned rule which was enrolled for hearing on 1 February 2000 are to be paid by the plaintiff.

5. The costs of the application to set aside the notice of bar as an irregular proceeding and enrolled for l February 2000 are to be paid by the plaintiff.

6. To the extent that it is necessary to make any further order relating to costs it is ordered that all costs reserved in both cases 99/17G38 and 97/17459 are to be paid by the plaintiff.

7. The costs of this application are to be paid by the plaintiff.

ON BEHALF OF PLAINTIFF :ADV P J VENTER

Instructed by:Scholtz & Botha

ON BEHALF OF DEFENDANT : ADV M PINCUS

Instructed by :Biccari, Bollo & Mariano

DATE OF JUDGMENT :13 APRIL 2000