"Neither Air Ops nor Logans may without the prior consent of the other party assign this Agreement in whole or in part or delegate
any of the agreed rights and obligations under this Agreement provided, however, that Air Ops has the right to assign this Agreement
in whole or in part to ING Aviation Lease, Amsterdam, The Netherlands. Equally, Logans carries the same right of assignment to a
Company still to be formed under the control of Logans."
The appellant alleged in his founding affidavit that, as
contemplated in clause 14, Air Operations assigned its rights and
obligations under the agreement to ING Aviation. This was denied by
ING Aviation. It claimed that all that had occurred was that Air
19
Operations, with Logans's consent, had transferred to it the right to
receive payment from Logans, without the transferral of any corresponding obligations. The appellant's proposed action for damages
against ING Aviation proceeds on the premise that ING Aviation, by virtue of the assignment, is legally liable for all damages suffered
by Logans on account of any breach of the provisions of the agreement.
It is not clear, either from the agreement itself or the record as a whole, where the agreement was concluded. I shall assume that
it was outside the jurisdiction of the court a quo and that the court was not otherwise possessed of jurisdiction. As Logans was
an incola of the court and ING Aviation a foreign peregrinus, attachment of the monies in the bank account (which belonged to ING
Aviation) was necessary to found jurisdiction (ad fundandam juridictionem) i.e. to confer a
20 jurisdiction which did not otherwise exist. All that remained for the
appellant to establish was that he had a prima facie cause of action
against TNG Aviation. The requirement of prima facie cause of action
is satisfied if an applicant shows that there is evidence which, if
accepted, will establish a cause of action. The mere fact that such
evidence is contradicted will not disentitle the applicant to relief- not
even if the probabilities are against him. It is only where it is quite clear
that the applicant has no action, or cannot succeed, that an attachment
should be refused. (MT TIGR: Owners of the MT Tigr and Another v
Transnet Ltd t/a former 1998(3) SA 861 (SCA) at 868 B - H). The
remedy of attachment ad fundandam jurisdictionem in order to create
jurisdiction is an exceptional remedy and one that should be applied with
care and caution (Ex parte Acrow Engineers (Pty) Ltd 1953(2) SA 319
21 (T) at 2121 G - H; Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit
Bakeries (Pty) Ltd 1969(2) SA 295 (A) at 302 C - D). But once all the
requirements for attachment have been satisfied a court has no discretion
to refuse an attachment (Longman Distillers Ltd v Drop Inn Group of
Liquor Supermarkets (Pty) Ltd 1990(2) SA 90(5 (A) at 914 E - G).
Insofar as the appellant also sought an interim interdict pendente
lite it was incumbent upon him to establish, as one of the requirements
for the relief sought, a prima facie right, even though open to some
doubt (Webster v Mitchell 1948(1) SA 1186 (W) at 1189). The accepted
test for prima facie right in the context of an interim interdict is to take
the facts averred by the applicant, together with such facts set out by the
respondent that are not or cannot be disputed and to consider whether,
having regard to the inherent probabilities, the applicant should on those
22 facts obtain final relief at the trial. The facts set up in contradiction by
the respondent should then be considered, and if serious doubt is thrown
upon the case of the applicant he cannot succeed. (Gool v Minister of
Justice and Another 1955(2) SA 682 (C) at 688 B - F and the numerous
cases that have followed it).
The word "assignment" in our law is generally used to denote a
transfer of both rights and obligations, but its precise meaning in a given
case may depend upon the context in which it is used. Had clause 14 of
the agreement simply spoken of "the right to assign" without
qualification it may well be that any assignment pursuant thereto would
encompass a transfer of both rights and obligations. But the right to
assign was qualified by the words "in whole or in part". Mr Lazarus
conceded that notionally this could permit of a transfer by Air
23 Operations to ING Aviation of the right to receive payment from Logans
under the agreement without a concomitant transfer of obligations.
It does not follow as a matter of law that because the right to receive payments from Logans was admittedly transferred by Air Operations
to ING Aviation, the latter succeeded to the obligation to reimburse Logans in terms of clause 6(d) of the agreement if flights were
not delivered. I agree with the learned judge a quo that the question of whether ING Aviation acquired that obligation would be one
of fact dependent upon what arrangements were made between Air Operations and ING Aviation pursuant to clause 14. There is simply
no evidence of an arrangement whereby ING Aviation undertook to reimburse Logans.
The appellant's case boils down to a bald allegation that the
24 obligations of Air Operations were transferred to ING Aviation. There
is not a shred of evidence to support it. It amounts to a speculative
conclusion rather than a statement of fact. There is nothing to show that
ING Aviation ever acted in substitution for Air Operations in respect of
the latter's obligations in terms of the agreement. In a matter such as the
present, a bald assertion as to a state of affairs by a litigant having no
personal knowledge of the relevant facts cannot, without more, establish
a prima facie case. The fact that two of appellant's deponents, Mr
Loubser and Mr Gain, purport to confirm the appellant's allegation does
not assist the appellant as they, too, cannot speak from personal
knowledge.
It appears from the record, and is not disputed, that a letter was
written by Mr Richard Gain on behalf of Logans in March 1994 in which
25 it was said, inter alia,
"As per the agreement, in order to open the letter of credit in favour of ING Bank, I require a letter from Air Ops assigning
these rights over to ING. Please arrange for Thomas to fax me this today."
A letter of assignment was duly furnished in which it was provided that "Air Operations hereby assigns to ING Aviation Lease,
Amsterdam, the right to be the beneficiary of the Irrevocable Letters of Credit issued by Logans".
No reference was made, either then or later, to the transfer of any
accompanying obligation. Regard may be had to these undisputed facts
which tend to negate the existence of prima facie cause of action.
Insofar as inherent probabilities may additionally be taken into
account in relation to whether prima facie case for an interim interdict
was established, it is extremely unlikely that ING Aviation would have
agreed to take over the obligations of Air Operations in terms of the
26
agreement as, in the words of the judge a quo, "it would be most
surprising if a financier had accepted the obligation to supply, maintain and equip aircraft and make all the arrangements necessary
for international flights".
Consequently, in relation to the assignment issue, the appellant in my view failed to make out prima facie cause of action entitling
him to either an attachment to found jurisdiction or an interim interdict. The oral agreement
The appellant alleged that during the currency of the agreement numerous disputes arose between Logans on the one hand, and Air Operations
and ING Aviation on the other. Attempts to resolve these disputes were unsuccessful. The appellant claimed that this led to an oral
agreement being reached at a meeting between Mr Loubser
27 (representing Logans) and Mr Eikelaar (a vice-president of ING
Aviation representing both it and Air Operations) in Johannesburg in
March 1995 that, pending resolution of the disputes, neither Air
Operations nor ING Aviation would be entitled to draw on the monies
standing to the credit of ING Aviation in the bank account. This
agreement was later confirmed during April 1995 in the Maldives. The
existence of any such oral agreement was denied by both Air Operations
and ING Aviation.
On the appellant's version the oral agreement relied upon was
entered into within the court a quo's area of jurisdiction. The bank
account in which the monies were held was also situated within its
jurisdiction. The court a quo was accordingly clothed with jurisdiction
to entertain a dispute concerning the alleged oral agreement.
28 Attachment to found jurisdiction was neither necessary nor permissible.
Was the appellant entitled to an attachment to confirm jurisdiction
(ad confirmandam jurisdictionem) i.e. to strengthen an existing ground
of jurisdiction? In my view not. It appears to be generally accepted that
the principle of effectiveness underlies the rule relating to attachment.
Historically one of the underlying reasons for the attachment of property
to found (or confirm) jurisdiction was to give effect to a judgment and
provide an incola with security in advance for execution on that property
after judgment. (Jackaman and Others v Arkell 1953(3) SA 31 (T) at 34
H; Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd
(supra) at 306 H - 307 A). This principle, in the course of time, has
become considerably eroded by permitting, in cases sounding in money,
the attachment of articles of little value bearing no correlation to the
29 amount of the judgment sought. Having regard to the origin and purpose
of attachment it is only justified (to confirm jurisdiction) in cases
sounding in money or claims relating to property i.e. claims involving
property or real rights to or in property. It would not have application
to matrimonial causes or actions in personam which do not have a
monetary or property component (see generally Herbstein and Van
Winsen: The Civil Practice of the Supreme Court of South Africa: 4th Ed,
pp 56, 60, 62; Erasmus: Superior Court Practice: Al - 29; Pollak on
Jurisdiction: 2nd Ed, pp 544, 82). The present matter falls into the latter
category. The appellant seeks to establish the existence of an oral
agreement precluding the withdrawal of money from a bank account -
money to which it has no claim. The judgment sought is not one
sounding in money in the sense in which that term is usually understood
30 nor is it one relating to property in respect of which the appellant claims
a right. The requirements for an attachment to confirm jurisdiction are
therefore not present.
It was argued that an order for costs is one sounding in money,
and attachment is therefore required to confirm jurisdiction in respect of
such an order. This argument was based in part on a judgment I gave
some years ago in Mali v Mali 1982(4) SA 569 (SE) in which I followed
dicta to that effect in Wells v Dean-Wilcocks 1924 CPD 89 at 93 and
Kibe v Mphoko and Another 1958(1) SA 364 (O). I held (at 570 H) that
there appeared to be no logical reason why the principle of effectiveness
should not also extend to an order for costs, and concluded that no order
for costs against a peregrine respondent can be effective without prior
attachment, and that without such attachment no order for costs would
31 be appropriate.
What the decision overlooks is the essentially ancillary or
consequential nature of an order for costs. Where a court has
jurisdiction in a matter involving a peregrine respondent that does not
sound in money or relate to property, and no attachment to confirm
jurisdiction would be permissible, it would be entitled, because of the
consequential nature of the order, and because of circumstances of
convenience and common sense, to make an award of costs despite there
having been no attachment (cf Sonia (Pty) Ltd v Wheeler 1958(1) SA
555 (A) at 564 A - D). This can also be seen as an application or logical
extension of the causae continentiae principle (see Pollak, op cit, at
180). To hold otherwise would subvert the basic principle that
attachment is only justified and permitted in cases sounding in money or
32 relating to property. There are potentially many cases involving
peregrine respondents that do not fall into that category. Costs are a
component of virtually all forms of litigation, and to permit an
attachment in relation to a prospective costs order would be to allow an
attachment to confirm jurisdiction in practically every case against a
peregrinus. I do not believe the law permits that, or should permit it. I
must therefore conclude (with due contrition) that I was wrong in
refusing an order for costs in Malis v Mali (supra). In the result the
appellant was not entitled to an order for attachment.
There remains the issue of the interdict pendente lite which was
refused by Nugent J. He found that the appellant had established a
prima facie right, but denied relief on the ground that the balance of
convenience favoured ING Aviation. In this respect Nugent J expressed
33 himself as follows:
"In my view, the balance of convenience clearly favours ING Aviation. No purpose at all is served by compelling it to retain
the monies in the account, or even in this country. The applicant has no claim to the monies, nor has it demonstrated that it has
any cause of action against ING Aviation. Indeed, on the evidence before me it is doubtful that a court would order specific performance
of the alleged agreement.
The applicant's counsel submitted that in the course of resolving the disputes with Air Operations a good claim against ING Aviation
may emerge. That is pure speculation and, in my view, insufficient grounds upon which to deprive ING Aviation of the use of its money.
Accordingly, in my view, the applicant's claim to an interdict must fail."
I agree. A further factor favouring ING Aviation at the time would have
been the potential weakening of the rand against other major currencies
resulting in a steady decline in the value of the money, destined
ultimately to leave the country, in the bank account. This contention
34 was advanced and substantiated on the papers. There is no basis for
interfering with the discretion exercised by Nugent J in this regard. It
follows that the appellant also fails in respect of the relief sought relating
to the alleged oral agreement.
In the result the appeal is dismissed with costs, such costs to
include the costs of two counsel.
J W SMALBERGER JUDGE OF APPEAL
HOWIE, JA )concur PLEWMAN, JA ) STREICHER,JA ) NGOEPE, AJA )
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