AFRICAN DISTILLERS LIMITED v ZIETKIEWICZ AND OTHERS 1980 ZLR 135 (G)

Author: Trodat Zimbabwe

jurisdiction, whose persons have not been arrested, and who have no property in Zimbabwe capable of attachment, even though they have allegedly breached a contract concluded by them with the plaintiff in this country. Reliance however, is placed by the plaintiff on the provisions of section _B 40 of the High Court Act [Chapter 14], which, it is submitted, has so altered the common law as to entitle the plaintiff to have its claim tried in this Court without the need for any such attachment or arrest to fortify and confirm the jurisdictional ground (ratione contractus) that exists. _C

The predecessor of section 40 of the High Court Act was first enacted in 1933 and appeared as section 17 of the then High Court Act [Chapter 8 of 1939] in the following terms:

“17. The power exercised prior to the 21st day of April, 1933, by the High Court of founding jurisdiction by attachment or arrest may after such date D be exercised by the issue of an edictal citation with or without an order for attachment or arrest as to the said Court seems fit.”

As far as I am aware the first reported case in which this section fell for consideration was that of Mackay v Hepker, 1941 SR 33. That decision supports the special plea that the defendants have filed in the present _E matter. At pages 35­36 HUDSON, J (as he then was), said:

“It is contended on behalf of the applicant that this section empowers the Court to issue an edictal citation in those cases in which it has jurisdiction to hear the proposed action, for instance ratione domicilii, or ratione rei sitae, irrespective of whether or not the defendant is himself within the F jurisdiction or has property here which can be attached.

Now it is clear that the section deals only with the exercise of a power already possessed by the Court? there is nothing in the section to indicate that the legislature intended to confer on the Court any extension of the power itself. It is necessary therefore to inquire first what the power referred to is. The Court is given, by section 2 of the Act, jurisdiction over all persons G and over all matters within the Colony. In accordance with decisions in the Courts of the Union this section has been held to include jurisdiction in those cases where, though the defendant is a peregrinus, the action is founded on a contract either entered into or to be performed within the Colony or the subject matter of the action was situated within the Colony or, as here, where a tort had been committed within the Colony. In all such cases the process H of the Court is served on the defendant by means of edictal citation. The Court however cannot issue such a citation unless accompanied by either the arrest of the attachment, of any of his goods, within the Colony. The Court therefore had no power to order the issue of an edictal citation unless either the defendant himself were, or had goods capable of attachment, within the Colony. In my opinion section 17 cannot be inter­

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preted as extending that power. It must be interpreted in accordance with the primary meaning of the words used merely as conferring on the Court a discretion in regard to ordering arrest or attachment where either the person or the goods of the defendant are capable of attachment. That this is the A meaning of the section is clear from the concluding words ‘with or without an order for attachment as to the said Court seems fit.’ Obviously the Court cannot have a discretion as to ordering attachment or arrest unless there is something in respect of which that order can be made. No doubt it was contemplated that there may be cases where arrest or attachment would cause unnecessary inconvenience or expense and it was considered desirable to B give the Court power to dispense with arrest or attachment in such cases.” (The underlining is mine.)

Section 40 of the current High Court Act [Chapter 14] was enacted in 1963. It reads:

“40. The General Division may exercise the jurisdiction founded on or C confirmed by attachment or arrest by the issue of process for service outside the jurisdiction of the Court, with or without an order for attachment or arrest as to that Court seems fit.”

In Risely v Watt, 1965 RLR 82 (G.D.)? 1965 (a) SA 664 (SR), DAVIES J (as he then was), had to consider whether the section in its _D altered form affected the validity of the decision in Mackay v Hepker (supra). He held that it did not, and adhered to the view that the section, although broadened, “in no way extends the common­law limits of jurisdiction” but “still deals only with the discretion of the Court to order attachment or arrest and does not broaden the jurisdiction of the _E Court. (Page 88E page 668H of the South African report.) Accordingly he held that this Court had no jurisdiction to entertain an incola’s claim for monetary relief arising from a contract that the peregrine defendant had concluded in this country, where the defendant had not been personally attached here and had no property in Zimbabwe that was _F capable of attachment.

The broadening of the section appears to have been the result of the decision in McGuire v Fourie,

1962 R  & N  421, in which it was held that section 17 of the former High Court Act conferred on the Court a _G discretion to ameliorate the common­law prerequisite for jurisdictional purposes of arrest or attachment in relation to the issue of an edictal citation only, and not also in relation to the issue of a summons to be served outside the jurisdiction of the Court. The altered wording of the new section eliminated that anomalous limitation, but it made no attempt _H to disturb the decision in Mackay v Hepker, supra. Nor is there any reason why the decision in Mackay’s case should be thought to be undesirable. It is one thing to confer a discretion to dispense with the need for the arrest of a peregrinus or for the attachment of his property where such

1980 ZLR p139

Beck J arrest or attachment can be made, but where the Court has reason to conclude that the oppression inherent in such arrest or attachment is not, _A in all the circumstances, reasonably necessary for the purpose of rendering effective a judgment unfavourable to the peregrinus. It is quite another thing to give to the Court a jurisdiction it would not otherwise possess under the common law over a peregrinus whose person and whose property are both beyond the territorial limits of the Court’s _B powers, and thus not subject to arrest or attachment, and who refuses to submit to the Court’s jurisdiction. It was submitted that the doctrine of effectiveness is nevertheless capable of being satisfied in such a case because, to take the instant case as an example, provisional sentence could be sought in the Republic of South Africa (where the defendants _C do have property) on a judgment given in this Court against them. That contention however, begs the question: a South African Court would not enforce, by whatever procedure, a judgment of a foreign Court which at foreign Court had no jurisdiction to issue. See: Acutt Blaine & Co v Colonial Marine Assurance Co. (1882) 1 SC 402? Mendelssohn v _D Mendelssohn’s Executor, 1908 TH 190, Borough of Finsbury Permanent Investment

Building Society v Vogel (1910) 31 NLR 402 (which applied the decision in Sirdar Gurdyal Singh v Rajah of Faridkote [1894] AC 670). _E

As might be expected, there is no reported case (nor any unreported case of which I am aware) in which this Court has considered that it could exercise jurisdiction in circumstances such as the present by virtue of section 17 of the old Act, or section 40 of the current Act. In ex parte Sletcher, 1947 SR 6, the judgment of TREDGOLD J, as he then was, _F contains (at page 8) the following sentence: “It seems to me, whatever may have been the previous practice, since the passing of the amendment which is now incorporated in the High Court Act, section 17, it can never be said that attachment is necessary.” This utterance however, is not to be divorced from the context of the facts of that case, which were that _G specific performance was sought against a peregrine defendant of a contract for the sale of land that was situated within this country, and, in the exercise of its discretion, the Court ordered the attachment of that land.

In ex parte Heald & Another N N.O., 1952 SR 105, an incola was _H given leave to issue an edictal citation on a monetary claim against a peregrine defendant who had property within the country and, in its discretion, the Court ordered the attachment of that property. The same judge (BEADLE, J, as he then was) gave similar relief in similar circumstances in the case of ex parte Mor ­ Tab Construction Co (Pvt)

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Ltd., 1962 R  & N  248, 1962 (2) SA 664 (SR). At 249H (665G of the South African report) the learned Judge, dealing with the information that the Court will require for the proper exercise by it of the judicial _A discretion conferred by the Act, said:

“The Court will want to know the value of the property which is sought to be attached, because, while the value of the property might be a quite irrelevant consideration in deciding whether or not the Court has jurisdiction, it Is a most important consideration in deciding whether the Court in the exercise of its discretion can equitably order an attachment of the property B to be made.”

Mr Millar, who appears for the plaintiff, relying on the words that I have italicised in this passage, has submitted that, if the value of the property is irrelevant for the purpose of jurisdiction, then the complete non­existence of property in this country capable of attachment should be _C equally irrelevant. I disagree. The important consideration is that there must be property of some value within the jurisdiction that is capable, if need be, of attachment in order to give recognition to the doctrine of effectiveness, even though its value may be woefully insufficient to “satisfy” the judgment sought. At page 309G­H of the Thermo Radiant _D Oven Soles case, supra, POTGIETER JA, said:

“It has never been disputed that in our law, as in English and American law, a Court has jurisdiction in respect of a resident incola on the principle of effectiveness? and the reason why the Court can give an effective judgment is because it is considered that usually a person’s possessions are where his E home is, and that execution can be levied against those possessions. Yet it may happen that the amount of the judgment may to some considerable extent exceed the value of his possessions and that execution thereon will, therefore, not satisfy the judgment. It has never been suggested that a Court can exercise jurisdiction in respect of a resident incola only if he has sufficient assets in the Court’s territorial jurisdiction which will, on execution, F completely satisfy the debt. That is the reason why I indicated earlier in this judgment that the word ‘satisfy’ used by INNES CJ, in Rothschild’s case. supra, and SMITH J, in Zakowski’s case, supra, is inappropriate.”

That BEADLE, J, by no means contemplated that the very existence within the country of attachable property might be irrelevant for _G jurisdictional purposes clearly emerges from his later judgment in ex parte Mercer, 1969 (1) RLR 117 (G.D.)? 1969 (2) SA 207 (R). At page 117 (page 207G­H of the South African report) the CHIEF JUSTICE said:

“The cause of the action therefore, arises in the territory and, as the respondent H has property within the jurisdiction of this Court, this Court has jurisdiction to hear the suit? but, were it not for the provisions of section 34 of the High Court Act, No. 22 of 1964, this would be a case where it would be necessary to attach the respondent’s property in the territory in order to confirm jurisdiction.” (My italics.)

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Again, at page 119B (page 208H of the South African report) he said:

“In cases where it is necessary for the defendant either to be in the jurisdiction himself or to have property within the jurisdiction before the Court A can assume jurisdiction, the proper practice therefore is to proceed by way of edictal citation . . .”

and to set out the information the Court will require for the proper exercise of its discretion if an attachment order is sought in addition _B to the leave to issue an edictal citation.

The only other reported cases that I have discovered in which either the old section 17 or the new section 40 has received attention are: Central Africa Airways Corporation v Vickers ­ Armstrong Ltd 1956 R & N 4? 1956 (2) SA 492 (FC)? Ex parte Coote & Others 1962 R & N 423? and X & Y (Pvt) Ltd v Z & Anor 1973 (2) RLR 178 (G.D.)? 1974 (1) SA 195 (R)? _C none of which supports the plaintiff’s case.

Accordingly I find that this Court has no jurisdiction to entertain the plaintiff’s claim against the first two defendants and the special plea is _D therefore upheld with costs.

Gill, Godlonton & Gerrans, attorneys for the plaintiff.

Scanlen & Holderness, attorneys for the first and second defendants. _E