Van der Walt v Esprit Family Trust and Others (M372/15) [2016] ZANWHC 75 (15 December 2016)

Van der Walt v Esprit Family Trust and Others (M372/15) [2016] ZANWHC 75 (15 December 2016)

The court held that the attachment order was improperly granted because the application to confirm jurisdiction was brought after the main application was instituted. Jurisdiction over a foreign peregrinus must exist at the commencement of proceedings, and cannot be cured by subsequent attachment. The reference to the repealed Supreme Court Act did not render the order erroneous, as the Superior Courts Act provides for attachment to confirm jurisdiction. However, the failure to obtain attachment before instituting the main application was fatal to the court's jurisdiction. The applicant was substantially successful on this ground, and the attachment order and subsequent attachment were...

Citation
[2016] ZANWHC 75
Parties
Applicant: Lene Van der Walt; Respondent: Esprit Family Trust; Respondent: Fare Family Trust; Respondent: Petrus Johannes van der Walt
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
15 December 2016
Case Number
M372/15
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Attachment Order
Outcome
Application for rescission granted; attachment order and attachment set aside; costs awarded to applicant.
Judges
A M Kgoele
Legal Topics
Attachment Ad Confirmandum Jurisdictionem, Peregrinus Jurisdiction, Rescission of Judgment, Superior Courts Act, Timing of Attachment Application
Civil Procedure Land and Property Attachment Ad Confirmandum Jurisdictionem Peregrinus Jurisdiction Rescission of Judgment Superior Courts Act Timing of Attachment Application

Case Brief

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Parties

Lene Van der Walt

Applicant

Esprit Family Trust

Respondent

Fare Family Trust

Respondent

Petrus Johannes van der Walt

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Attachment Order

Legal Issues

  1. 1 Whether the attachment order granted on 10 December 2015 should be rescinded.
  2. 2 Whether the attachment application to confirm jurisdiction was properly brought after the main application was instituted.
  3. 3 Whether the North West High Court had jurisdiction over the applicant, a foreign peregrinus, at the time the main application was instituted.

Ratio Decidendi

The court held that the attachment order was improperly granted because the application to confirm jurisdiction was brought after the main application was instituted. Jurisdiction over a foreign peregrinus must exist at the commencement of proceedings, and cannot be cured by subsequent attachment. The reference to the repealed Supreme Court Act did not render the order erroneous, as the Superior Courts Act provides for attachment to confirm jurisdiction. However, the failure to obtain attachment before instituting the main application was fatal to the court's jurisdiction. The applicant was substantially successful on this ground, and the attachment order and subsequent attachment were...

Court Disposition

Application for rescission granted; attachment order and attachment set aside; costs awarded to applicant.

Orders

  • The order made on 10 December 2015 under case number M372/15 is set aside.
  • The attachment made in pursuance of the order of 10 December 2015 is set aside.