THE
HIGH COURT OF SWAZILAND
CIVIL
CASE NO. 2637/02
In
the matter between:
SOLOMON
MAPHANGA Applicant
And
WBHO
(SWAZILAND) Respondent
In
re:
SOLOMON
MAPHANGA Plaintiff
And
WBHO
(SWAZILAND) LIMITED Defendant
CORAM: MASUKU
J.
For
Applicant: Mr J.W. Maseko
For
Respondent: Adv. J.M. v.d. Walt (Instructed by Robinson
Bertram)
RULING
ON POINTS IN LIMINE
13/09/02
This
is an application filed under a Certificate of Urgency and in which
the Applicant applies for attachment ad confirmandum jurisdictionem
of certain movable assets of the Respondent company. The Notice of
Motion reads as follows:-
1. That
the above Honourable Court dispenses with the form, time limits and
the manner of service and hearing this matter as one of urgency.
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2. That
a rule nisi be and is herby issued returnable on a date to be fixed
by the above Honourable Court calling upon the Respondent to show
cause why prayer 2.1, 2.2, 2.3 herein below should not be made final
2.1. That
the Sheriff or his lawful deputy be and is hereby authorised and
directed to attache ad confirmandum jurisditionem the motor vehicles
listed herein;
HJW
157 GP ... BELL TANKER
MJF
719 GP ... GRADER / DRESSER
2.2. All
such movable property belonging to the Respondent as the Sheriff or
his lawful deputy may discover in Swaziland.
2.3. That
the Sheriff or his lawful deputy be and is hereby authorised to hold
the said property attached by him pursuant to paragraph 2 above
pending the outcome of proceedings instituted by the Applicant
against the Respondent, in which proceedings Applicant claims;
a) Payment
of the sum of E510,000.00 (Five hundred and ten thousand Emalangeni)
in respect of damages sustained by Applicant with regard to his
house.
b) Interest
at the rate of 9% per annum a tempore morea.
c) Costs
of suit.
d) Further
and/or alternative relief,
3. That
the payers 2.1, 2.2, 2,3 operate within interim immediate effect.
4. That
the costs of this application be costs in the cause of action
referred to in paragraph 3 above.
5. Further
and/or alternative relief.
It
is common cause that the Applicant, under the same case number,
instituted action proceedings against the Respondent arising from
earthmoving works carried out by the
3
Respondent
connected to the construction of the Mbabane - Ngwenya road. The
Applicant alleges that as a result of some blasting activities his
house, at Nkoyoyo, which is developed was damaged and is not
habitable anymore. Furthermore, his borehole from which he drew water
was affected by digging of gravel to the extent that the supply of
water to the house has been affected. The quantum of damages alleged
is E510,000,00, together with interest thereon and costs.
The
Applicant has applied for attachment ad confirmandum jurisdictionem
of the above named items on the grounds that the Respondent is a
pereginus of the above Honourable Court as it is a subsidiary of WBHO
(Pty) Ltd, based in the Republic of South Africa. The Applicant
further contends that the Respondent has no fixed immovable and
unencumbered assets within the Court's jurisdiction. He further avers
that the Respondent has almost completed the construction of the road
in question and has begun repatriating presumably its assets back to
the Republic of South Africa.
The
Respondent has raised two crisp points of law, namely, that the
Applicant has failed to make out a case for attachment as the
Defendant is not a peregrinus of the above Honourable Court.
Secondly, it is alleged that the Applicant has failed to comply with
the requirements of Rule 6 (25) (b) of the High Court Rules as
amended relating to urgency.
The
Respondent, within the very stringent time limits managed to file an
Answering Affidavit and in which the points in limine above were
raised. Further, the Respondent opposed the grant of the prayers
sought on the merits. This Ruling is confined solely to the points in
limine.
I
propose to deal with the points in limine ad seriatim.
A: Attachment
ad fundandam or ad confirmandam jurisdictionem - the law applicable
Herbstein
and Van Winsen, in their work entitled, "The Practice of the
Supreme Court of South Africa", 4th Edition, 1997 at page 93
state the following: -
"Where
an incola wishes to sue a peregrinus to enforce a claim sounding in
money
4
or
relating to property, and none of the usual grounds upon which the
court might have jurisdiction is present, attachment is a condition
precedent to the action, for it is upon the attachment that the
Court's jurisdiction is founded. "
The
grounds upon which the Court can exercise the jurisdiction were
stated by De Villiers CJ. in EINWALD VS GERMAN WEST AFRICA CO. (1887)
5 SC 86 at 91 as the
following:-
"The
grounds are three-fold: viz by virtue of the defendant's domicile
being here, by virtue of the contract having been entered into here
or having to be performed here, and by virtue of the subject-matter
in an action in rent being situated in this Colony. If the defendant
is domiciled here, the process of attachment is wholly unnecessary,
but, in the absence of such domicile, the invariable practice of this
Court has been to attach the person or property of the defendant for
the purpose of founding jurisdiction, even where that latter two
requisites are present. "
According
to Erasmus, "Superior Court Practice," Juta, 1997, at page
"A1 - 27, the jurisdictional connecting factors recognised at
common law, which is also the common law of Swaziland in this respect
are the following:-
(a) residence
(b) domicile
(ratio domicillii)
(c) the
situation of the subject - matter of the action within the
jurisdiction {ratio rei sitae)
(d) cause
of action {ratio rei gestae)
(e) commission
of a delict within the jurisdiction {ratio delicti)
The
statutory provisions relating to jurisdiction in our Courts is
governed by the provisions of Section 2 (1) of the High Court Act,
No.20 of 1954, which reads as follows: -
"The
High Court shall be Superior Court of record and in addition to any
other jurisdiction conferred upon it by the Constitution, this or any
other law, the High Court shall within the limits of and subject to
this or any other law possess and exercise all the jurisdiction power
and authority vested in the Supreme Court
5
of
South Africa."
The
relevant provision in the South African Statutes dealing with
jurisdiction is Section 19 (1) (a) and reads as follows: -
"A
provincial or local division shall have jurisdiction over all persons
residing or being in and in relation to all causes arising and all
offences triable within its area of jurisdiction and all other
matters of which it may according to law take cognisance, and shall,
subject to the provisions of subsection (2), in addition to any
powers or jurisdiction which may be vested in it by law... "
From
the foregoing, it is clear that both at common law and statute law,
this Court has jurisdiction over persons who reside or are domiciled
within its jurisdiction. The question to determine next is whether
this Court does have jurisdiction over the Respondent in casu and if
it does, whether proceedings to attach the Respondents property to
found or confirm jurisdiction were necessary and appropriate.
The
Respondent has been cited in the papers as WBHO (SWAZILAND) LIMITED,
suggestive of the fact that the Respondent is a locally registered
company. If there is any doubt about the correctness of the above,
that confusion is cleared by the Applicant in paragraph 2 of the
Founding Affidavit where the Respondent is described in the following
language: -
"The
Respondent is WBHO (Swaziland) Limited a company registered in terms
of the company laws of the Kingdom of Swaziland and having its
principal place of business at Motshane along the Mbabane/Ngwenya
public road within the district of Hhohho. "
At
paragraph 3, the Applicant proceeds to state the following: -
"The
above honourable court has jurisdiction to hear and determine the
above matter that the whole cause of action wholly arose within the
jurisdiction of the above Honourable Court."
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From
the bases upon which this Court has jurisdiction and which are
outlined above, it is clear therefor that the Court has jurisdiction
over the Respondent in at least the two following respects: -
a) Respondent
is 'resident' within the jurisdiction of this Court;
b) The
cause of action arose within the Court's jurisdiction.
Was
it therefor necessary to move this application in view of the
notorious fact that the Respondent is an incola of this Court?
According
to Erasmus (supra), at page A1 - 30, an Applicant for attachment ad
fundandam jurisdictionem et ad confirmandam jurisdictionem must show
that: -
(i) it
has a prima facie cause of action against the defendant i.e. the
applicant must tender evidence which, if accepted, will establish a
cause of action;
(ii) the
defendant is a peregrinus; and
(iii)
the defendant is within the area of jurisdiction of the court or that
the property in which the defendant has a beneficial interest is
within that area. The onus is upon the applicant to show that the
property belongs to the debtor.
From
the three requirements, it is immediately clear on the facts and from
the Applicant's own allegations that the Respondent is not a
peregrinus of this Court since it is a locally registered company
with its place of business situate within this Court's jurisdiction.
This in my view provides sufficient ground for refusing to grant the
application. No authority that I have consulted permits of a
distinction between holding and subsidiary companies, such as to hold
that a subsidiary is not a local company. Mr Maseko argued that the
Respondent's residence within this Court's jurisdiction is
meaningless as it does not have immovable and unencumbered property
within the Court's jurisdiction such that, so ran the argument, any
judgement granted would be rendered hollow, nugatory or brutum
fulmen. Although the latter may be true, I venture no opinion on
this, the fact of the matter and on first principles, attachment is
applicable and appropriate only in cases where the
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Respondent
is a peregrinus. In casu, the Respondent is not. The Applicant has
clearly employed the wrong procedure, if at all it is true as alleged
by the Applicant (and which is denied by the Respondent) that the
latter has almost completed its business and is repatriating its
assets out of the Court's jurisdiction. No authority is cited to show
that this attachment can be authorised where the Defendant is an
incola and in order to lend effectiveness to the Court's judgement.
Furthermore,
one can hardly say, on the facts before Court that the Applicant has
discharged the onus to prove that the goods identified above and
which the Court is requested to order to be attached belong to the
Respondent. Some information must be placed before Court to prove
that assertion. Mere use of the property by the Respondent in my view
falls far short of discharging the onus. Prayer 2.2. is clearly
nebulous and one wonders if it would be regarded sufficient.
I
say this in view of the principle laid down by Herbstein & Van
Winsen {supra) at page 108, namely, that if it is sought to attach
property, details of that property, its value and situation must be
disclosed. This is clearly not the case in casu.
Even
if this were a proper case, there clearly is insufficient admissible
evidence before Court to the effect that the Respondent is about to
complete the construction of the road and that it is already
repatriating to the Republic of South Africa. The source of this
information is not disclosed for the Court to lend any credence to it
whatsoever.
In
my view, the Applicant has instituted wrong proceedings in a quest to
secure his interests. A Mareva injunction (as it is called in English
law) would probably have been the more appropriate proceedings. This
point of law must be upheld and I so order.
(B) Urgency.
Rule
6 (25) (b) of the Rules of Court, which has been accepted as
mandatory, in view of the nomenclature employed, provides the
following: -
"In
every affidavit or petition filed in support of any application under
paragraph (a) of this sub-rule, the applicant shall set forth
explicitly the circumstances which
8
he
avers render the matter urgent and the reasons why he claims he could
not be afforded substantial redress at a hearing in due course. "
(my emphasis).
Commenting
on the requirements of the above sub-rule on an applicant, I stated
the following in MEGALITH HOLDINGS v RMS TIBIYO (PTY) LTD &
ANOTHER CASE NO.199/00 at page 5:-
"
The provisions of Rule 6 (25) (b) above exact two obligations on any
Applicant in an urgent matter. Firstly, that the Applicant shall in
affidavit or petition set forth explicitly the circumstances which he
avers render the matter urgent. Secondly, the Applicant is enjoined,
in the same affidavit or petition to state the reasons why he claims
he could not be afforded substantial redress at a hearing in due
course. These must appear ex facie the papers and may not be gleaned
from surrounding circumstances brought to the Court's attention from
the bar in an embellishing address by the Applicant's counsel. "
In
an attempt to address the requirements of the above sub-rule as
amplified above, the Applicant stated the following at paragraphs
14.1 to 14.3: -
"14.1 I
submit that the matter is urgent in that the Respondent company is in
the process or (sic) repatriating to the Republic of South Africa
with a majority of its equipment already transported back to the said
Republic."
"14.2 I
sincerely believe that the Respondent has no fixed unmovable and
unencumbered assets within the jurisdiction of the said Court hence I
fear and anticipate irreparable loss as my claim would not have been
secured. The Respondent is merely a division of mother company based
in the Republic of South Africa."
"14.3 I
submit that I have no other remedy other than the one sought in these
proceedings."
Do
these allegations as they presently stand meet the rigours set out
above? I think not. The circumstances averred which render the matter
urgent appear to be based on
9
inadmissible
hearsay matter. The Court is not told as to how the Applicant has
come to the conclusion that the Respondent is winding up its business
and relocating to South Africa. He does not say where, when and under
what circumstances this conclusion was arrived at. In particular,
there are no reasons stated why the Applicant claims that he cannot
be afforded substantial redress at a hearing in due course. All that
the Applicant contented himself with doing was to merely allege that
there is no other remedy. The mere repetition of those words, in the
absence of reasons from which the conclusion can reasonably be drawn
constitutes no magic wand. It only amounts to paying lip-service to
this sub-Rule without advancing the matter an inch.
It
is my considered view that the point on urgency is also well taken.
Prayer 1 would for these reasons have to be refused. Costs will
follow the event. An application was made on the Respondent's behalf
to include the costs of Counsel as certified in terms of Rule 68. It
is my view that the instructing of Counsel was particularly in view
of the application for attachment necessary. I order that the
provisions of Rule 68 (2) shall apply.
T.S
MASUKU
JUDGE
