L4301 UNIT 3.15 ATTACHMENT AD FUNDANDAM / AD
CONFIRMANDAM JURISDICTIONEM AND ARREST AD FUNDANDAM
/ AD CONFIRMANDAM JURISDICTIONEM
3.15.1 DEFINITION:
Herbstein and Van Winsen1 define attachment ad fundandam jurisdictionem or
attachment ad confirmandam jurisdictionem as “an attachment … of the
property of a peregrines (a person who is domiciled and resident in a foreign
country) in order to make that person amenable to the jurisdiction of a …court.”
3.15.2 PURPOSE:
In Thermo Radiant Oven Sales Ltd v Nelspruit Bakeries 1969(2) SA 295,2 the
Appellate Division reviewed the origins of attachment of the defendant’s
property ad fundandam jurisdictionem or the arrest of the defendant ad
fundandam jurisdictionem in Roman Dutch Law;3 and the court per Potgieter JA
said the purpose of attachment or arrest ad fundandam jurisdictionem was to
save an incola, the cost of having to pursue the defendant to his country of
domicile and to sue him there in line with the prescription of the rules of actor
sequitur forum rei. The court noted that “[o]riginally the purpose of the arrest or
attachment was a kind of compulsion to which the foreigner was subjected so
that he could be induced to pay his creditor rather than endure the worry of
arrest or the retention of his property.”4
That rather crude justification of attachment ad fundandam jurisdictionem has
been ditched for a more justifiable purpose: In today’s legal position,
attachment serves a twofold purpose:
1
Vol 1, 5th edition p95.
In this case, the respondent incola had purchased an oven from the appellant but upon installation the oven
proved unable to live to its proclaimed capabilities as to the quality and quantity of bread it had been said to
be capable of producing. The respondent consequently instituted an action against appellant claiming
damages arising out of the alleged breach of warranty on the sale of the oven. The appellant peregrinus
counterclaimed for the balance of the purchase price. The respondent then applied for the attachment of the
value of the counterclaim to found jurisdiction. On appeal, while the court agreed that the amount of the
counterclaim though far less than the amount claimed by the plaintiff, was attachable to found jurisdiction.
The court nevertheless held that to the extent that the respondent/ plaintiff denied the existence of any valid
claim against it by the appellant peregrinus, it could not be allowed to approbate and reprobate and
accordingly it held that since on the respondent’s principal case, the appellant had no valid claim against it
(respondent), there was nothing to attach ad fundandam jurisdictionem.
3
The Court, at page 305C, observed that in Roman Law, an arrest ad fundandam jurisdictionem was unknown.
4
Thermo Radiant Oven Sales Ltd (Supra) at 305G.
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(i)
to found or create jurisdiction where no other ground of jurisdiction
exists, and
to provide an asset in respect of which execution can be levied in the
event of a judgment being levied.
(ii)
Similarly, attachment ad confirmandam jurisdictionem serves the purpose of
strengthening or confirming the jurisdiction of the court which already exists.
Another purpose of this form of attachment is to provide an asset on which
execution may be levied.5
Possession or control of the property is essential to make the attachment
effective.
Rule 6 of the High Court Rules, 1980 provides for attachment ad fundandam
jurisdictionem.6 The rule also provides for the arrest of a peregrinus who is
temporarily within the jurisdiction of the court. The object in both cases is to
render the peregrinus amenable to the jurisdiction of the court.
The rule sets the following conditions for granting an order for attachment to
found jurisdiction:
(i)
(ii)
The applicant has a prima facie cause of action against the
peregrinus;7
The property sought to be attached belongs to the peregrinus8 or that
the peregrinus has some right in the property;9
5
Gavin Cecil Gainsford N.O. and Others v Cloete Murray.
Rule 6(2)of the High Court rules.
7
It has been held that given the extra ordinary nature of the remedy of attachment to found or confirm
jurisdiction, it can only be justified where the applicant prima facie has a cause of action against the
peregrinus. See, Ex parte Acrow Engineers (Pty) Ltd 1953 (2) SA 319 (T) at 321.
8
The court has to be satisfied on a balance of probabilities that the property belongs to the peregrine debtor –
Lendalease Finance (Pty) Ltd v Corporation De Mercadeo Agricola 1976 (4) SA 464 (A) at 489C.
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Attachment will not be refused simply because the value of the property is far less than the debt – See, Ex
parte Seltzer (1903) SC 20 SC 505 where the court ordered the attachment of an engagement ring whose value
was far less than the damages sought for breach of promise; furthermore, were the property involved is
immovable and it is within the jurisdiction of the court, it is not necessary to attach the property and to sue by
edict as in that case the court has jurisdiction wherever the defendant may be – Manna v Lotter 2007 (4) SA
315 (C ) paras [7], [10] and [11]; the movable property of the peregrinus is attachable whether it is in his or
her possession or that of an agent – Araxos (East London) (Pty) Ltd v Contara Lines Ltd 1979 (1) SA 1027 (E) at
1029C-D; documents of title, money and other movables belonging to a peregrinus but pledged to different
incolae have been attached without prejudice to the rights of such incolae – Ex parte Daitz & Co 1921 WLD 77
and Talachi NO v Volkskas Bpk: In re Talachi NO v Banco Di Roma 1971 (1) SA 289 (T) at 290; Incorporeals such
as an inheritance due to a peregrinus, a peregrinus’ interest in an estate, a life insurance policy ceded to him
and held by the plaintiff, shares held by him have been attached – Barkhusen v Van Huysten (1880) 1 SC 26, Ex
parte Estate De Wet 1912 CPD 414, Abrey v Bourne (1892) 6 EDC 227, Rand Estate Agency (Pty) Ltd v Lacey
1949 (4) SA 83 (W) at 84.
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2
(iii)
(iv)
The applicant is an incola and the respondent a peregrinus.
The rule also gives the applicant the right to serve the papers by edict.
SEE NTŠELISENG MOTLOLI T/A MOTLOLI CATERING v LSP / WBHO
JOINT VENTURE AND OTHERS CCA /0025/2020.
In the Republic of South Africa, the Supreme Court of Appeal has declared to
be unconstitutional, the arrest of a person so as to found or to confirm
jurisdiction. The Court in Bid Industrial Holdings (Pty) Ltd v Strang 2008 (3)
SA 355 held that:
[41] Apart from the fact that arrest does not serve to attain jurisdictional
effectiveness it cannot be ‘just cause’ to coerce security or, more
especially, payment, from a defendant who does not owe what is claimed
or who, at least, is entitled to the opportunity to raise non-liability in the
proposed trial. If there is no legal justification for incarcerating a
defendant who has been found civilly liable there cannot be any for
putting a defendant in prison whose liability has not yet been proved.
[42] Although it may be said that establishing jurisdiction is a
constitutionally permissible objective, to reach it by means of
deprivation of a foreign defendant’s liberty is to breach the latter’s
s 12 entrenched right.
3.15.3 THE PROCEDURE
ATTACHMENT:
FOR
OBTAINING
AN
ORDER
FOR
Herbstein and Van Winsen10 say the procedure to be followed is as follows:
1. The application is to be made before issue of summons, and that if it is
discovered after summons was issued that the defendant is a peregrinus,
the summons should be withdrawn to allow for the process of attachment
to found jurisdiction to proceed before summons is re-issued.
2. The application is made ex parte, but if the peregrinus is within the
court’s jurisdiction at the time of making the application and there is no
danger of notice defeating the purpose of the application, notice should be
given.
10
Herbstein and van Winsen, 5th Edition Vol 1, p 120.
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3. Where the application was made ex parte, it must provide for a return day
on which the respondent may show cause why the order should not be
confirmed.
4. The application for attachment is usually made along with one for leave
to sue by edictal citation.
3.15.4 CONTENTS OF FOUNDING AFFIDAVIT:
The authors say the founding affidavit filed in support of the application for
attachment must set out:
(i)
(ii)
(iii)
The name, address and occupation of the plaintiff;
The name, address and occupation of the defendant;
Sufficient detail as to the amount and nature of the claim which the
plaintiff has against the defendant so as to enable the court to
determine whether there is a prima facie case;
(iv) Facts relevant to the court’s jurisdiction indicating why attachment is
necessary and whether it is to confirm or to found jurisdiction;
(v)
Details of the property sought to be attached, its value and situation;
(vi) Facts indicating that the proposed defendant is the owner of such
property.
(vii) Where an order to sue by edictal citation is also sought, the affidavit
must contain averments relating to that as well.
3.15.5 PROVISION OF SECURITY
A defendant may opt to give security to the satisfaction of the Registrar for the
applicant’s claim and for costs. Provision of adequate security will result in the
attached property being released.
The amount of security to be paid is fixed bearing in mind the circumstances of
the case, including the nature of the claim and the counterclaim (if any), and the
circumstances under which the claims arose – Banks v Henshaw 1962 (3) SA
464 (D).
3.15.6 DISCHARGE OF THE WRIT OF ATTACHMENT
The defendant may apply for the discharge of the writ if submission to the
jurisdiction of the court was made before attachment was executed, or that one
of the essential elements of an application for attachment did not exist – e.g. that
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the plaintiff has no prima facie case or that the property sought to be attached
does not belong to the defendant.
3.15.7 SELF STUDY: (i) Are you persuaded by the reasoning of the Court in
Strang (Supra) for rejecting arrest ad fundandam jurisdictionem?
(iii)
(iv)
The doctrine of effectiveness is said to have been eroded in case law over
the years, do you agree? Has it really been of any value or was its value
overestimated?
Thabo Thabang, a businessman of Ha Mafefoane, Roma bought a stone
cutting machine online from Granite Slices (Pty) Ltd (Granite Slices) of
Cheaters’ City, Republic of Fraudia. The machine cost Thabo M2 million
which he paid cash and also paid M200 000.00 shipping costs. Thabo
intended to use the machine in his stone masons business, Thathang
Stones Products, but when the machine arrived, it turned out to be a
hacksaw and could not be used to cut stone. Thabo is desirous of suing
Granite Slices for damages and has been advised that he needs to apply
for the attachment of any of the following properties of Granite Slices in
Lesotho:
a) A M200 000 debt owed by Maseru Mixers
b) A M100 000 shares held by Granite Slices in Stealers’ Steel
(Pty) Ltd of Mafeteng.
1. Would any one of these properties individually suffice to
found jurisdiction?
[YES] [NO]
[1 Mark]
2. Draw an affidavit in support of an application for
attachment of Granite Slices’ property to found jurisdiction.
[14 Marks]
DO THESE EXERCISES IN GROUPS. SUBMISSION DATE: 9/12/2022
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