Maschinen Frommer GMBH & co kg v Trisave Engineering & Machinery Supplies (PTY) limited (415/02) [2002] ZAWCHC 55; [2003] 1 All SA 453 (C); 2003 (6) SA 69 (C) (10 October 2002)

Maschinen Frommer GMBH & co kg v Trisave Engineering & Machinery Supplies (PTY) limited (415/02) [2002] ZAWCHC 55; [2003] 1 All SA 453 (C); 2003 (6) SA 69 (C) (10 October 2002)

The plaintiff failed to discharge the onus of proving that the defendant submitted to the jurisdiction of the Koblenz High Court, either expressly or tacitly, as required for enforcement of a foreign judgment in South Africa. The express submission relied on the general terms and conditions of sale, but the plaintiff did not prove that the defendant was a 'registered merchant' as required by the jurisdiction clause, nor did it provide expert evidence of German law to clarify this requirement. The tacit submission argument failed because the defendant consistently contested jurisdiction and did not acquiesce by conduct. The authentication objection was dismissed, as the genuineness of the...

Citation
[2002] ZAWCHC 55
Parties
Plaintiff: Maschinen Frommer GmbH & Co KG; Defendant: Trisave Engineering & Machinery Supplies (Pty) Limited
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 October 2002
Case Number
415/02
Procedural Posture
Provisional Sentence Application / Judgment on Opposed Provisional Sentence
Outcome
Application for provisional sentence refused with costs.
Judges
Van Reenen
Legal Topics
Enforcement of Foreign Judgments, Submission to Jurisdiction, Contractual Terms Inclusion, Proper Law of Contract
Civil Procedure Commercial and Corporate Enforcement of Foreign Judgments Submission to Jurisdiction Contractual Terms Inclusion Proper Law of Contract

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Parties

Maschinen Frommer GmbH & Co KG

Plaintiff

Trisave Engineering & Machinery Supplies (Pty) Limited

Defendant

Procedural Posture

Provisional Sentence Application / Judgment on Opposed Provisional Sentence

Legal Issues

  1. 1 Whether the foreign judgment of the Koblenz High Court is sufficiently authenticated for enforcement in South Africa.
  2. 2 Whether the defendant submitted to the jurisdiction of the Koblenz High Court, either expressly or tacitly, in terms of South African law.
  3. 3 Whether the plaintiff's general terms and conditions of sale, including choice of law and jurisdiction clauses, formed part of the contract between the parties.

Ratio Decidendi

The plaintiff failed to discharge the onus of proving that the defendant submitted to the jurisdiction of the Koblenz High Court, either expressly or tacitly, as required for enforcement of a foreign judgment in South Africa. The express submission relied on the general terms and conditions of sale, but the plaintiff did not prove that the defendant was a 'registered merchant' as required by the jurisdiction clause, nor did it provide expert evidence of German law to clarify this requirement. The tacit submission argument failed because the defendant consistently contested jurisdiction and did not acquiesce by conduct. The authentication objection was dismissed, as the genuineness of the...

Court Disposition

Application for provisional sentence refused with costs.

Orders

  • The application for provisional sentence is refused with costs.
  • The defendant is granted leave to file a plea to the summons within 14 days of the date of this judgment.