Richman v Ben-Tovim (674/05) [2006] ZASCA 121; 2007 (2) SA 283 (SCA); [2007] 2 All SA 234 (SCA) (29 November 2006)

‘If personal service within the court’s area is a ground of international jurisdiction in money proceedings in modern Roman Dutch law then with respect the judgment is to be welcomed. But is it a ground? True, the jurisdictional criteria of internal and international jurisdiction does not always coincide, although in principle, it is believed, they should. But normally where they do not the internal are the more extensive. Does it not sound strange that personal service within the area suffices abroad but not locally?’

It is perhaps of some significance that in South African domestic law, the drastic procedure of arrest to found jurisdiction (though constitutionally suspect) may be resorted to where a peregrine is temporarily within the jurisdiction of the court. Such a procedure is unknown in English Law where service is sufficient to confer jurisdiction. Joubert also refers to Van Dijkhorst J’s judgment in Reiss1 where the view of Pollak in the first edition of his work is endorsed. Forsyth2 criticizes Steinberg’s case and submits, without any authority, that mere presence is not a ground of international competence. He also makes the point that the dictum in Purser makes no mention of mere physical presence as a ground of international competence. The learned author refers to an obiter statement of Erasmus J in Erskine3 to the effect that physical presence at the time of the institution of the action will suffice. Edwards4 makes the point that there is no support either in authority or in principle for physical presence per se as grounding international competency. In Supercat Incorporated v Two Oceans Marine CC5 (although decided after Purser) Conradie J made no mention of Purser. The learned judge observes that:

‘Sometimes, it seems, our Courts recognize the jurisdiction of a foreign Court although they themselves would not have assumed jurisdiction on the same footing.’6

[9] There are compelling reasons why, as submitted by the plaintiff’s counsel, in this modern age, traditional grounds of international competence should be extended, within reason, to cater for itinerant international businessmen. In addition, it is now well established that the exigencies of international trade and commerce require ‘…that final foreign judgments be recognised as far as is reasonably possible in our courts, and that effect be given thereto.’7 This court (albeit in a slightly different context) said in Mayne v Main8 that a ‘common-sense’ and ‘realistic approach’ should be adopted in assessing jurisdictional requirements because of ‘… modern-day conditions and attitudes and the tendency towards a more itinerant lifestyle, particularly among business people. And because not to do so might allow certain persons habitually to avoid the jurisdictional nets of the courts and thereby escape legal accountability for the wrongful actions.’

In my view having regard to all of the above factors the view expressed by Pollak quoted with approval by Van Dijkhorst J in Reiss9 should be followed.

[10] I now turn to consider the two remaining defences raised in the court a quo, the provisions of the Protection of Business Act 99 of 1978 (the Act) and public policy.

[11] Section 1(1) of the Act provides that, except with the permission of the Minister of Economic Affairs, no judgment, order or arbitration award delivered, given, issued or emanating from outside the Republic and arising from any act or transaction contemplated in ss (3) shall be enforced in the Republic. Section 1(3) reads:

‘(3) In the application of ss (1)(a) an act or transaction shall be an act or transaction which took place at any time, whether before or after the commencement of this Act, and is connected with the mining, production, importation, exportation, refinement, possession, use or sale of or ownership to any matter or material, of whatever nature, whether within, outside, into or from the Republic.’

The wording of the section refers to transactions connected with raw materials or substances. Even manufactured goods are excluded from the operation of the Act.10 The plaintiff’s claim is for services and disbursements related to negotiations, advice, drafting of contract documents, and incidental matters pertaining to a restructuring, rearrangement, and (ultimately) dissolution of joint ventures between the respondent, on the one hand, and various affiliates of the De Beers group of companies.

If manufactured goods are sufficiently remote from ‘matter’ and ‘material’ within the meaning of the Act, by parity of reasoning there can be no scope for applying it to a claim for payment sounding in money where the claim is one for professional services rendered. I accordingly consider that this defence is without merit.

[12] As to public policy considerations the defendant baldly contends that, because appellant is not an attorney duly admitted to practise locally, nor a solicitor admitted to practise in the United Kingdom, he is not entitled, in terms of South African legislation, to levy fees. This complaint is misdirected: the question is not whether appellant was entitled in terms of South African legislation to charge for the services and rendered disbursements made by him, but whether he was permitted to do so in England, where he was mandated by defendant and where the services were rendered and disbursements incurred.

No facts were adduced by defendant to show that plaintiff was prohibited in England from obtaining payment of the amounts claimed. On the contrary: plaintiff practises in England as a South African attorney practising foreign law, which is a valid and accepted practice in England. There is no bar in England to such practitioners recovering fees for services rendered by them.

Insofar as the position in South Africa is concerned, appellant is – contrary to respondent’s contention – an attorney of this Court, having been admitted as such in 1963, though no longer practising as such.

There are no considerations of public policy which militate against the recognition or enforcement of applicant’s claim for his fees and disbursements arising from the services lawfully rendered by him in England. If anything public policy would require the recognition by a South African court of a lawful judgment given by default by an English court where personal service in England had taken place.

[13] In all the circumstances the appellant’s action for provisional sentence should have succeeded. Accordingly the appeal is allowed with costs.

The order of the court a quo is set aside and replaced with the following order:

Provisional sentence is granted in favour of the plaintiff against the defendant for payment of:

(a) 57 882.179 English Pounds, alternatively the Rand equivalent thereof determined in accordance with the exchange rate prevailing as at the date of payment;

(b) Interest on the aforesaid sum at the rate of 8 per cent per annum from 17 December 2003 to date of payment;

(c) The defendant is to pay the plaintiff’s costs of suit.

____

R H ZULMAN

JUDGE

OF APPEAL

CONCUR: ) CAMERON JA

) BRAND JA

) MAYA JA

) THERON AJA

1 Supra at 1037H-1038B.

2 Private International Law (4th ed) pages 401-402.

3 Supra at 820J.

4

LAWSA Vol 2 Second ed (updated by Ellison Kahn) para 346 at page 384.

5 2001 (4) SA 27 (C).

6 At 30H and see also page 31D and Permanent Investment Building Society v Vogel (1910) 31 NLR 402.

7 Westdeutsche Landesbank Girozentrale (Landesbausparkasse) v Horsch 1993 (2) SA 342 (Nm) at 343J-344A where the court held, inter alia, that the jurisdiction of a foreign court would be recognised where the defendant was physically be present in the area of the foreign court at the time of the institution of the proceedings there approved of in Blanchard, Krasner & French v Evans 2004 (4) SA 427 (W) at 431F-I.

8 2001 (2) SA 1239 (SCA) at 1243I-1244B.

9 Supra at p 1037 in fin. See also the comprehensive article by Professor Sieg Eiselen which is critical of the judgment of the court a quo –(2006) SA Mercantile Law Journal Vol 18 No 145 – 52.

10 See Chinatex Oriental Trading Co v Ersken supra 1998 (4) SA 1087(C) 1095F-1096C and Tradex Ocean Transportation SA v M V Silvergate (or Astyanax) and Others 1994 (4) SA 119 (D) at 121A-D.