IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 1909/94
In
the matter between:
EAST
RAND MERCHANTS CC Applicant
And
THOMAS
CARL MOORE KIRK Respondent
CORAM :
Hull, CJ.
FOR
RESPONDENT Mr. Nkosi
FOR
APPLICANT Mrs. Currie
Reasons
for judgment (3/11/94)
Yesterday,
I dismissed an application in these proceedings by Mr. Kirk to attach
a truck and trailer belonging to East Rand Merchants CC, a South
African company, in order to found and/or confirm jurisdiction in an
action that Mr. Kirk is bringing against the company for damage
allegedly done by the rig to his premises at Matsapha.
In
doing so, I gave oral reasons for my decision. The truck and trailer
are used by the company in its own business and were in Swaziland
pending the outcome of this and a related application. Thus there was
urgency about the matter. I said then, however, that because the
point at issue seemed to be an important one, I wished to give fuller
reasons on Friday, and undertook to give these. I do so now.
2
Mr.
Kirk is an incola of this jurisdiction and the company a peregrinus.
The dispute that has arisen between them results from an incident on
27th October 1994. Mr. Kirk's premises are in the Matsapa shopping
complex. His complaint is that that an employee of the company drove
the truck, which he estimates to weigh at least 20 tons with the load
it was carrying, on to a part of his premises which was only designed
to withstand loads not exceeding two tons, and which was marked with
conspicuous signposts that prohibited the entry of heavier vehicles.
He claims that as a result of this, the surface and sub-base of the
premises suffered damages, which he is having assessed.
The
matter first came to court, however, at the instance of the company.
It is not in dispute that at the time of the incident, Mr. Kirk
detained the truck and trailer physically, without any court order.
The company thereupon applied to me ex parte, on a basis of urgency,
on 28th October. It sought (i.e. without notice to Mr. Kirk) a final
order for the release of the rig. I granted an order with costs, but
on the basis that the truck and trailer were to be given into police
custody for a period of twenty-four hours following service of its
application and my order on Mr. Kirk, and that thereafter the company
was to be at liberty to take them out of Swaziland unless in the
meantime Mr. Kirk, on notice, applied to set aside the order.
In
retrospect, I think that I expressed the order in rather unusual
terms but, in substance, it was or was very nearly akin to a rule
nisi, with a very short return date and with an interim arrangement
for the safekeeping of the truck and trailer.
In
the event, when Mr. Kirk learned of the company's application, he did
decide to apply to rescind the order. On Saturday, 29th October, at
my home, I made a consent order extending the time period of
twenty-four hours into the following week. On Tuesday 31st October,
he filed an application to rescind the order. Both of Mr. Kirk's
applications were on notice to the company (and were in the event
heard together.)
In
the meantime, when the truck and trailer had been released from Mr.
3
Kirk's
premises under my original order, the driver in fact took them not to
Lobamba Police Station but back across the border to South Africa.
When Mr. Kirk's own applications first came before me on 31st
October, Mr. Millin on behalf of the company informed me at once that
this had happened. He explained that it had been done in error; and
he gave me an assurance by the company that the truck and trailer
would be brought back into Swaziland for the hearing. Mr. Nkosi did
not take issue with this. When Mr. Kirk's applications were heard
eventually on Wednesday, 2nd November, Mrs. Currie for the company
informed me from the bar that the assurance had been fulfilled, and
of course I accept her word on that.
On
1st November, the company's attorneys informed Mr. Kirk's attorneys
in writing that it submitted to the jurisdiction of the High Court in
respect of the claim for damages that Mr. Kirk intends to bring
against it. It is relevant to mention, in that regard, that before
applying to attach the truck and trailer to found or confirm
jurisdiction, Mr. Kirk's attorneys did not ask the company's
attorneys whether it would submit to the jurisdiction; and also that
at the time that the company did notify his attorneys that it would
do so, his application to attach had not been heard.
As
Mrs. Currie pointed out at the hearing, Mr. Kirk's intended claim
against the company is based on an alleged cause of action that arose
within Swaziland. Accordingly the point of any application to attach
the company's property, for jurisdictional purposes, would be to
confirm jurisdiction instead of to found it.
In
Rosenberg and Another v. Mbanga and Others (Azaminle Liquor (Pty) Ltd
intervening) 1992 (4) SA 331, a decision of the Eastern Cape Division
cited by Mrs. Currie, Van Rensburg J. held that where a foreign
peregrinus submits to the jurisdiction before an order of attachment
to confirm jurisdiction has been granted, a court will not grant an
order of attachment. In doing so, he reviewed several earlier South
African authorities, including Slabbert v. Herbst 1981 (4) SA 257(NC)
which he declined to follow.
The
issue is dealt with by Van Rensburg J. at pages 338 J to 344 D of his
judgment and from this, and the authorities cited there by him, it
4
appears
to me that the weight of authority in South Africa shows that where a
foreign peregrinus submits to the jurisdiction before an order to
attach property to confirm jurisdiction is granted, effectiveness as
"the basic principle of jurisdiction" does not apply and
that where there is such a submission before attachment, then
attachment to confirm jurisdiction is not only not necessary but not
permissible. I refer in particular to the passage cited by Van
Rensburg J. (at pages 339E - 341B) from the judgment of Goldstone J.
in Elscint (Pty) Ltd and Another v. Mobile Medical Scanners (Pty) Ltd
1986 4 SA 552 (W); and to the passage cited at page 341 C-E from the
judgment of Van Schalk Wyk A.J. (as he then was) in Utah
International Inc. v. Honeth and Others 1987 4 SA 145.
On
a first reading I did have some hesitation about the views expressed
in Elscint cited at 340 G - 341 B in Rosenberg. There is no doubt,
for example, that the English Mareva injunction and Anton Piller
orders are widely used processes in private disputes with an
international element in those jurisdictions around the world in
which they are available - against foreign defendants in preference
to relying on the enforcing of judgments against them in foreign
courts in due course. But those processes are available against an
incola and a peregrinus alike. They lie where there is reason to
believe that a defendant may intend to evade the consequences of an
unfavourable judgment.
The
principle applied in Rosenberg and the other cases referred to in
that decision, as I understand it, has to do strictly with the
question of jurisdiction as such.
It
might be thought that an insincere submission to the jurisdiction, by
a defendant who in fact has every intention of evading the
consequences of an unfavourable judgment, could be used as a device
to defeat the incidental consequences of attachment of person or
property. But I do not think that this is a sound point. Ordinarily,
an application to attach is made ex parte. If successful, it then
bites, if 1 may put it that way, whether or not the defendant
subsequently announces that he submits to the jurisdiction. The case
law on that seems to be clear. In such circumstances, the possibility
of abuse of process to which I have referred will not arise in
practice.
5
The
circumstances of the present case are different, and perhaps unusual.
Mr. Kirk did not in fact act first, using the legal process, to
attach the truck and trailer to confirm jurisdiction in anticipation
of his claim. Had he done so, he might have obtained the incidental
benefit of having on hand assets against which to enforce any
judgment that he may succeed in obtaining. Instead he chose to detain
the truck and trailer physically, without resort to the courts. In
consequence of his decision, the company came to this court and, in
consequence of that, when Mr. Kirk eventually decided to apply to
hold the rig on an attachment he did so unusually, perhaps, as I say
- in the context of what by then had become a dispute inter partes.
So far in this matter, there is no reason at all to think that the
company is in fact concerned to defeat the consequences of an
unfavourable verdict in any claim that Mr. Kirk may pursue. When its
rig was detained by him it came to this court for relief.
Subsequently, it submitted to the jurisdiction of this court in
respect of his intended claim. Although the rig was removed to South
Africa, counsel for the company informed me himself of that, tendered
an explanation, and undertook on its behalf to bring the truck back.
This undertaking the company honoured. At the hearing on Wednesday,
Mr. Nkosi spoke of contempt, but with respect, that is misconceived.
If it were an alleged civil contempt, Mr. Kirk did not seek to
enforce by committal the observance of the court order and, as it has
turned out, there was no need to do so. It is plainly not a criminal
contempt. Nothing that this company has so far done gives rise to any
reasonable basis for supposing that it has bad motives.
The
question of the effectiveness of the submission to the jurisdiction -
by which I simply mean whether or not a binding submission has been
made - has not been put in issue. The letter of submission, from the
company's Swazi attorneys, is unequivocal.
The
law that governs this matter is the common law of South Africa. It
does so because Swaziland itself has adopted that law. Mr. Nkosi
sought to distinguish Rosenberg on the ground that it was based on a
false assumption that Ciskei was an independent foreign state. I
understand his point, but it does not carry his case further. It is
6
the
assumption, or premise, rather than the correctness of it in
international law, on which the legal rationale of that case rests.
Here, the company is a foreign peregrinus, and so the same principle
applies.
I
find the weight of the South African authority cited in Rosenberg in
favour of the decision of Van Rensburg J. persuasive, and accordingly
I dismissed the application with costs. 1 awarded costs to the
company because, in the particular circumstances of this case, Mr.
Kirk had an opportunity to inquire and should have inquired whether
the company would consent to the jurisdiction, and from 1st November
there was no basis for pursuing the application.
DAVID
HULL
CHIEF
JUSTICE
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