East Rand Merchants CC v Kirk (NULL) [1994] SZHC 83 (03 November 1994);

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.


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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.


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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


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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.


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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


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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