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IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
In the matter between:
NORMAN DAVID SIMON NO.   APPELLANT
and
AIR OPERATIONS OF EUROPE AB 1ST RESPONDENT
INTERNATIONALE NEDERLANDEN
LEASE ISLAND BV  2ND RESPONDENT
FIRST NATIONAL BANK OF
SOUTHERN AFRICA LIMITED 3RD RESPONDENT
CORAM: SMALBERGER, HOWIE, PLEWMAN, STREICHER JJA et NGOEPE AJA
HEARD: 4 SEPTEMBER 1998
DELIVERED: 25 SEPTEMBER 1998
JUDGMENT
2 SMALBERGER JA:
3 to lease an aircraft to Logans from time to time for flights on specified
routes. It also assumed responsibility for the operational requirements
of the aircraft such as maintenance, the provision of a crew and flight
arrangements. In return Logans was to pay for the hire of the aircraft
according to prescribed rates. To ensure payment Logans was required
to open an irrevocable letter of credit in favour of Air Operations in a
specified amount. Logans duly complied with its obligations in this
regard and an aircraft was put at its disposal as envisaged by the
agreement.
During March 1994 Air Operations transferred its right to receive
payments from Logans to ING Aviation (about which more later). In
about September 1994 the letter of credit was due to expire and with it
the approval that had been granted by the foreign exchange control

4 authorities to remit abroad funds derived from such payments. In
anticipation of this happening ING Aviation opened a bank account in
Johannesburg with the third respondent ("the bank account"). It was
agreed between Logans and ING Aviation that upon expiry of the letter
of credit all payments required to be made by Logans would be paid into
the bank account. This was done, and the monies so paid were held in
the account pending authorisation by the relevant authorities for their
remittance overseas.
From about February 1995 Logans began to experience cash flow
problems. This resulted in its failing to make certain payments as they
fell due in terms of the agreement. Logans attributed its problems in this
regard to alleged breaches by Air Operations of various terms of the
agreement. Attempts to overcome Logans's difficulties failed.

5 Eventually flights were suspended and Air Operations purported to
cancel the agreement with effect from 28 June 1995. On 23 August
1995 ING Aviation made written demand for payment by Logans of
more than one million dollars. Two days later Logans was provisionally
wound-up. The amount then standing to the credit of ING Aviation in
the bank account had grown to approximately R13 million.
Authorization had been sought to remit the funds abroad. The required
authorization was granted on 6 February 1996.
It is common cause that both Air Operations and ING Aviation are
foreign peregrini of the court (the Witwatersrand Local Division) within
whose area of jurisdiction the bank account at all relevant times was
situate. On 7 February 1996 the appellant sought by way of an urgent
application, and was granted, (by Goldstein J) an order in that court

6 against the three respondents in the following terms:

Costs of suit.
1.6     Further and/or alternative relief.
2.
3. That the relief set forth in 1 and 2 above operate as an interim order with immediate effect.

Paragraph 4 of the court's order simply slavishly followed the
wording of the notice of motion and did not stipulate a return date.
Despite this defect in the order, answering and replying affidavits were
filed and the matter eventually came before Nugent J. On 29 April 1996
the learned judge dismissed the rule nisi and set aside the interim
interdicts, with costs, including the costs of two counsel. He refused
leave to appeal but the appellant was subsequently granted leave to
appeal to this Court on petition to the Chief Justice. In his petition the
appellant acknowledged that the funds in the bank account belonged to

9 ING Aviation and that Air Operations had no claim on them. He
accordingly confines the relief he seeks on appeal to ING Aviation.
It is common cause that on 2 May 1996, after the appellant's
petition had been served on the respondents, but before leave to appeal
had been granted, ING Aviation launched an application in which it
sought, inter alia, an order that effect be given to the court a quo's
judgment discharging the rule nisi. The application was granted by
Nugent J on 8 May 1996, subject to security de restituendo in the form
of a guarantee being provided by ING Aviation in the event of leave to
appeal being granted and the subsequent appeal being successful. The
order was subject to certain conditions, one being that "the guarantee
shall in any event lapse after the expiry of a period of two years from the
date of issue thereof. The guarantee was duly furnished, and the

10 monies standing to the credit of ING Aviation in the bank account were
transferred overseas. The date of issue of the guarantee was 8 May
1996. No steps were taken to extend the period of the guarantee and it
accordingly expired on 8 May 1998. Subsequently the appellant
initiated proceedings in the Witwatersrand Local Division in which the
relief eventually sought was an order directing ING Aviation to provide
security de restituendo by furnishing a fresh guarantee. On 28 August
1998 Nugent J dismissed the application with costs. We were informed
from the bar that the appellant intends to seek leave to appeal against the
dismissal of the application.
These events gave rise to the filing of supplementary heads of
argument on behalf of ING Aviation two days before the hearing of the
appeal. It was contended that the appeal fell to be dismissed by virtue of

11
the provisions of sec 21 A(l) of the Supreme Court Act 59 of 1959. The
section presently reads:

The contention was based on the following considerations. In paragraph
3.6 of his heads of argument the appellant had intimated that he no
longer persisted with the argument that a jurisdictional attachment was
necessary to confer jurisdiction on the court a quo; consequently the
appeal was confined to the interdict granted in paragraph 2 of the order
of Goldstein J, which related to the accumulated funds then in the bank
account; the funds had since been transferred out of the country and the
guarantee providing security de restituendo had lapsed; accordingly, if

12 the appeal was upheld no order could be made which would have any
practical effect or result.
In seeking to counter this Mr Lazarus, for the appellant, in
argument before us, was obliged to depart from the attitude which he had
taken up in his heads of argument. He contended that the question of
attachment remained relevant to the issue of jurisdiction and the
outcome of the appeal, despite the absence of any funds or a valid
guarantee. He sought thereby to shift the focus from paragraph 2 of the
rule nisi to paragraph 1. He claimed that if successful on appeal the
appellant would be entitled to a form of declaratory order which he
formulated, inter alia, in the following terms:

An order in those terms, so the argument went, was one which would
have a practical effect. He conceded that as matters stand at present he
could not ask for confirmation of paragraph 2 of the rule nisi. The
position might be different if an appeal against Nugent J's refusal to
order fresh security were successful.
In the circumstances it became necessary to hear full argument on
the merits of the appeal. Because, for reasons that follow, I am firmly
of the view that the appeal on the merits cannot succeed, it is
unnecessary to consider whether this would otherwise have been an
appropriate matter in which to invoke the provisions of sec 21 A(l) of
the Supreme Court Act.

14 Before passing on to the merits, a word about the section. It was
inserted in the Supreme Court Act in 1993 but amended with effect from
14 February 1997. Both Mr Lazarus and Mr Duke, who appeared for
ING Aviation, accepted that the amendment applied to all appeals heard
after that date, even if the judgment or order appealed against had been
given or made before then. This Court assumed that to be so in Premier,
Provinsie Mpumalanga, en 'n Ander v Groblersdalse Stadsraad 1998(2)
SA 1136 (SCA) at 1143 A - C (see also Western Cape Education
Department and Another v George 1998(3) SA 77 (SCA) at 84 G).
However, in MV Snow Delta, Discount Tonnage Ltd v Serva Ship Ltd
1998(3) SA 636 (C) at 646 B - C Thring J stated:

The view expressed by the learned judge is open to doubt. Sec 21 A(l)
was designed to alleviate the pressure on, and reduce the workload of,
courts of appeal generally, and this Court in particular (see Premier,
Mpumalanga, en 'n Ander v Groblersdalse Stadsraad at the passage
quoted above). That being so it strikes me as being a procedural
provision rather than a matter of substantive law. If it were procedural
it would normally apply from the date it came into operation in respect
of both pending and prospective appeals (Steyn: Die Uitleg van Wette:
5^th Ed, p 90). However, as the matter was not fully argued before us I
refrain from expressing a firm view in regard thereto.
The appellant's application in the court a quo was based on two

16 grounds:

17 I shall deal with each of these in turn.
The agreement
As I have already mentioned, the agreement was entered into
between Logans and Air Operations, and Logans was required to open
an irrevocable letter of credit in favour of Air Operations in order to
ensure payment in terms of the agreement. The manner of payment was
set out in clause 6(d) of the agreement, the relevant portion of which
provides:
In terms of clause 14 of the agreement:
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

Operations, with Logans's consent, had transferred to it the right to
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.

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,

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

agreement as, in the words of the judge a quo, "it would be most
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
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: 4^th Ed,
pp 56, 60, 62; Erasmus: Superior Court Practice: Al - 29; Pollak on
Jurisdiction: 2^nd 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:

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.

HOWIE, JA )concur PLEWMAN, JA ) STREICHER,JA ) NGOEPE, AJA )

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