Tsung and Another v Industrial Development Corporation of South Africa Ltd. and Another (079/05) [2006] ZASCA 28; 2006 (4) SA 177 (SCA); [2013] 2 All SA 556 (SCA) (23 March 2006)

Tsung and Another v Industrial Development Corporation of South Africa Ltd. and Another (079/05) [2006] ZASCA 28; 2006 (4) SA 177 (SCA); [2013] 2 All SA 556 (SCA) (23 March 2006)

The Supreme Court of Appeal held that a peregrine defendant's late consent to jurisdiction, given after attachment of property to found or confirm jurisdiction, cannot undo the attachment. The attachment serves not only to establish jurisdiction but also to provide security for the plaintiff, ensuring the enforceability of any judgment obtained. Allowing late consent to invalidate the attachment would frustrate the incolae's ability to execute against the attached property and undermine the established objectives of the attachment procedure. The court found no policy or fairness reason to depart from the longstanding common law rule, nor any constitutional imperative requiring its...

Citation
[2006] ZASCA 28
Parties
Appellant: Robert Hsu-Nan Tsung; Appellant: Robert Cheng-Li Tsung; Respondent: Industrial Development Corporation of South Africa Limited; Respondent: Findevco (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
23 March 2006
Case Number
079/05
Procedural Posture
Civil Appeal / Appeal From Final Order of Attachment in the Cape High Court
Outcome
Appeal dismissed with costs of two counsel.
Judges
Harms, Farlam, Cameron, Jafta, Cachalia
Legal Topics
Attachment to Found Jurisdiction, Consent to Jurisdiction, Peregrinus Defendant, Security for Judgment
Civil Procedure Attachment to Found Jurisdiction Consent to Jurisdiction Peregrinus Defendant Security for Judgment

Case Brief

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Parties

Robert Hsu-Nan Tsung

Appellant

Robert Cheng-Li Tsung

Appellant

Industrial Development Corporation of South Africa Limited

Respondent

Findevco (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Final Order of Attachment in the Cape High Court

Legal Issues

  1. 1 Can a peregrine defendant, by consenting to jurisdiction after attachment, undo an attachment founding or confirming jurisdiction?
  2. 2 Is the rule that late consent cannot undo attachment compatible with prior case law and principles of fairness?
  3. 3 Does the common law rule regarding attachment and late consent require development in light of constitutional values?

Ratio Decidendi

The Supreme Court of Appeal held that a peregrine defendant's late consent to jurisdiction, given after attachment of property to found or confirm jurisdiction, cannot undo the attachment. The attachment serves not only to establish jurisdiction but also to provide security for the plaintiff, ensuring the enforceability of any judgment obtained. Allowing late consent to invalidate the attachment would frustrate the incolae's ability to execute against the attached property and undermine the established objectives of the attachment procedure. The court found no policy or fairness reason to depart from the longstanding common law rule, nor any constitutional imperative requiring its...

Court Disposition

Appeal dismissed with costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.