---

262/86 /mb

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:
VENETA MINERARIA SPA Appellant
and
CAROLINA COLLIERIES (PTY) LTD Respondent

(IN LIQUIDATION)

CORAM .: VILJOEN, SMALBERGER, VIVIER, JJA,

BOSHOFF et STEYN AJJA

HEARD : 12 MARCH 1987

DELIVERED : 17 SEPTEMBER 1987

JUDGMENT

VILJOEN, JA

During June 1981 the appellant, an Italian company

which at the time carried on business in Milan, Italy,

instituted/

2. instituted an action in the Durban and Coast Local

Division against Carolina Collieries (Proprietary)
Limited (hereinafter referred to as "Carolina")
claiming from Carolina, which had its head office

in Johannesburg, Transvaal, and operated a colliery

in Carolina, Transvaal, damages for breach of con-
tract, interest and costs. Carolina resisted the
claim and instituted a counterclaim. The matter
was heard during March 1985 and in pursuance of a

judgment handed down on 7 May 1985 (which is fully
reported in 1985(3) SA 633 (D), hereinafter referred
to as "the report",) the learned trial Judge, Kum-

leben J, dismissed the claims in convention and

reconvention with costs. Leave to appeal having

been/
3. been granted by the Court a quo to appeal to this

Court against that part of the order whereby the

learned trial Judge dismissed the appellant's claim
with costs, an appeal was duly noted and appeal pro-
ceedings were instituted. On 25 February 1986 a

final winding-up order was made against Carolina.
The liquidatrix who had received proper notice that
the appellant desired to prosecute the appeal indi-
cated that she did not intend to become involved in
the appeal proceedings or to intervene in any way.
Before this Court there was consequently no appearance

for Carolina. An application at the commencement of
the argument on appeal that the name of the respon-
dent should be altered to "Carolina Collieries (Pro-

prietary)/
4. prietary) Limited (in liquidation)" was granted.

As a perusal of the report reveals,the learned trial Judge, even though he upheld a special plea that, despite a written consent to the jurisdic-tion, the trial Court did not have jurisdiction to try the matter, nevertheless proceeded to state his views on the breach of contract issue and decided that against the appellant as well.

The only ground advanced in this Court in

support of a contention that the Court a quo had
jurisdiction was the written consent to the jurisdic-
tion signed on behalf of Carolina. The facts which
are relevant for the purposes of the adjudication of
this issue are, as set out in the report at 637 B - D,
that the parties were neither domiciled nor resident

within/
5. within the area of jurisdiction of the Court a quo,

nor was the contract concluded or to be performed
within such area. Both parties were therefore
peregrini of the Court a quo. They differed in
status, however, in the sense that the defendant
was, even though a peregrinus of the Court, an
incola of the Republic of South Africa, whereas
the appellant was not - it was an out-and-out
peregrinus.

Jurisdiction (gerigtsdwang) is defined by

Vromans, following Berlichius, as "a lawful power
to decide something in a case or to adjudicate upon
a case, and to give effect to the judgment, that is,
to have the power to compel the person condemned to

make/

6.
make satisfaction." See Wright v Stuttaford & Co 1929
EDL 10 42. In so far as South African courts are con-

cerned their jurisdiction is the right or authority
of entertaining actions or other legal proceedings
which is vested in them by the state. When the
Supreme Court of South Africa was created on the es-
tablishment of the Union of South Africa by the
South Africa Act, 9 Edw VII ch 9 section 95, the
Supreme Courts of the former colonies became pro-
vincial or local divisions of the Supreme Court of
South Africa. These divisions retained the juris-
diction which the courts to which they succeeded
enjoyed.

The statute which currently governs the

system/
7. system of the Supreme Court in the RSA, its several

divisions and their respective jurisdictions and
powers is the Supreme Court Act 59 of 1959 (herein-
after referred to as "the Act"). According to it
the original jurisdiction of each division is terri-
torial - it is to be exercised within a particular
geographical area specified in the First Schedule
to the Act. Section 19(1) of the Act provides
broadly that a provincial or local division shall
have jurisdiction over all persons residing or being
in and in relation to all causes arising within its
area of jurisdiction and all other matters of which
it may according to law take cognizance.

In view of the indefinite wording of

s 19(1)/ ...

8.
s 19(1) of the Act and its predecessors, no
doubt deliberately so couched because the in-tention of the legislature obviously was to inter-fere with the common law as little as possible, re-course must be had to the principles of the common law to ascertain what competency each of the supreme -courts in the RSA possesses to effectively adjudicate and pronounce upon a matter brought before and heard by it. In the course of time it seems that, as our law on jurisdiction developed, it was also influenced to a minor extent by principles of the private inter-national law applicable in other legal systems.

For the purposes of this appeal it will be convenient to distinguish between the so-called grounds

of/
9. of jurisdiction by virtue of which a court would

normally ipso jure have jurisdiction and juris-
diction which is conferred on a court. In the

former category the grounds of jurisdiction - the
rationes jurisdictionis - may be classified. In
Einwald v The German West African Company 5 SC 86
De Villiers CJ said at 91 that the grounds upon
which jurisdiction can be exercised in respect of
any contract over a defendant without his consent,
express or implied, are threefold:

"viz by virtue of the defendant's domicile being here, by virtue of the contract either having been entered into here or having to be performed here, and by virtue of the subject-matter in an action in rem being situated in this Colony."

In the second category of cases whereby

jurisdiction/

10. jurisdiction may be conferred upon a court attach-

ment of the goods or arrest of the person ad fundandam

jurisdictionem as well as consent to jurisdiction

(known by the term prorogatio in Roman Dutch law)
may be classified. In this respect the learned trial

Judge refers , at 639 of the report, to Vromans
who observes in his treatise De Foro Competenti

1.1.7 note 12:

"Uyt het Gemeine Regt is een Regter competent, of door sig selfs, ofte door toeval"

and points out that Vromans proceeds to classify,
among others, both consent and attachment as in-
stances of jurisdiction "door toeval". Among the

others Vroman includes "door saaks t' samehang, in saken van eene natuur sijnde en die gevolglyk

van/

11.

van den anderen niet konnen gescheiden werden." Cf

Roberts Construction Co Ltd v Willcox Bros(Pty)'Ltd

1962(4) SA 326(A).

It seems to me - and I express this view

en passant and of course obiter - that there is, in
so far as South African law is concerned, another
type of case,arising from the provisions of s 9
of the Act, which may be added to this category.
This section reads as follows:

"(1) If any civil cause, proceeding or matter has been instituted in any pro-vincial or local division, and it is made to appear to the court concerned that the same may be more conveniently or more fitly heard or determined in another division, that court may, upon appli-cation by any party thereto and after hearing all other parties thereto, order such cause, proceeding or matter to be

removed/

12. removed to that other division.
(2) An order for removal under sub-section (1) shall be transmitted to the registrar of the division to which the removal is ordered, and upon the receipt of such order that division may hear and determine the cause, proceeding or matter in guestion and shall in that event apply the practice governing the division in which it was instituted and the law according to which that division would but for the removal have heard and determined such cause, proceeding or matter."

In Fraser v Lee 1904 TS 377 an application

by the defendant, the plaintiff consenting, under
s 29 of Proclamation 14 of 1902 (the forerunner in
the Transvaal of s 9 of the Act), for the venue to
be changed from the Supreme Court of the Transvaal
to the Witwatersrand High Court, was granted. The

latter/

13.

latter court also had jurisdiction. At 378 Solomon

J said:

"It may be that if the Johannesburg court
had no jurisdiction whatsoever, either
over the cause or over the defendant, by
reason of the fact that he resided out
of the jurisdiction of the court, some
difficulty might have arisen. I express
no opinion whatsoever about that "

In a long line of later cases this point,

which was left open in the Fraser v Lee case was
decided, the courts holding that it was not necessa-
ry for the transferee court to have jurisdiction;

in other words,the practice seems now to be firmly
established that jurisdiction can in this manner
be conferred upon a court. See the cases collected

in Nathan Barnett & Brink Uniform Rules of Court

3rd edition at 562. It is submitted by the authors

that/
14. that, although the court to which it is sought to

remove the proceedings need not originally have had

jurisdiction, the fact that it has no jurisdiction
will be a matter to be taken into account in deciding
whether the application for removal should be granted.

It is not necessary, for the purposes of this case,
to express any view on the correctness of this sub-
mission.

But to revert to the present case - the

crisp point to be decided is whether a consent to the

jurisdiction can stand alone as conferring jurisdic-
tion on a court or whether it serves merely to supply,
complementarily to some causa jurisdictionis, an

element to the jurisdiction which would, but for

such/
15. such consent, be defective. The latter was the view

of the learned trial Judge.

The question arises of what relevance,

apart from the fact that they are both considered
to be instances of jurisdiction "door toeval", arrest
or attachmeht ad fundandam iurisdictionem is to the
present problem concerning prorogation. They have
this in common, as pointed out in the report at
639 H - J, that neither can be regarded as one of
the ordinary rationes iurisdictionis which are
traditionally based on the doctrine of effective-
ness. The anology is, in my view, important because
it has repeatedly been stressed by the authorities
and in decisions of the courts, that effectiveness

is the/

16. is the basis of jurisdiction. This doctrine of

effectiveness was thorougly probed by Potgieter JA

in the matter of Thermo Radiant Oven Sales (Pty) Ltd v
Nelspruit Bakeries (Pty) Ltd 1969(2) SA 295 (A) 305C - 310t
and I need not add anything in this regard.

On behalf of the appellant it was submitted

that, until the decision in Towers v Paisley 1963(1)
SA 92 (E) it appears to have been generally accepted
that consent was sufficient to confer jurisdiction.
We were referred to Pollak South African Law of
Jurisdiction 92 and an article The Civil Jurisdiction
of the Supreme Court of South Africa by the same
author in Vol XLVI (1929) SALJ 237 at 241 and also
to the decision in Sonia Proprietary Limited v Wheeler

1958(1)/
17. 1958(1) SA 555(A) 563C - F.

In Towers v Paisley supra Jennett JP held

(at 95A) that a peregrine plaintiff had always been
able to sue a peregrine defendant only if one of
the three grounds of jurisdiction viz ratione rei
sitae, ratione rei gestae or ratione contractus
existed and that consequently the applicant, being
a peregrinus as far as the court was concerned,
could not bring an action against the respondent
on the ground only that the latter had consented to
the court having jurisdiction (95E). In arriving
at this conclusion the learned Judge President de-
rived support from the law relating to arrest and

attachment/

18.

attachment ad fundandam jurisdictionem. The learned

Judge President said at 94 F:

"In the case of action against a peregrinus, the Courts of the four Provinces before Union allowed a plaintiff incola to sue such peregrinus provided there was a ground'of jurisdiction ratione rei sitae, ratione rei gestae or ratione contractus with an arrest of the defendant or attachment of some of his property."

It was pointed out on behalf of the appellant that the dictum did not express the law correctly because in the case of an incola in the Transvaal, at any rate, no ground of jurisdiction other than arrest was required and we were referred to

Pollak/
19. Pollak op cit 58 - 9. It appears, however, that

the learned Judge President did not quite intend
to say what is reported at 94F because he proceeds
to say in the second sentence of the very next
paragraph (94G):

"In addition, however, a plaintiff incola could sue a defendant peregrinus even if none of the three grounds referred to were present but there had been an arrest of the defendant or attachment of some of his property."

It is true, however, that in the case

of a plaintiff incola in the Transvaal no ground of

jurisdiction other than arrest of the defendant
peregrinus or attachment of his property was required.

In fact, the practice which obtained in the Transvaal

(see/

20. (see Lecomte v W & B Syndicate of Madagascar 1905

TH 295; 1905 TS 696) was subsequently approved and
followed in the Cape (see Halse v Warwick 1931 CPD 233).
In the case of a defendant peregrinus who is, however,resident in another province of the RSA different considerations apply. As Jennett JP points out in Towers v Paisley supra at 94 in fine, by s 5 of Act 27 of 1912 arrest of the person or attachment of his property was prohibited in such a case. As a result the right of an incola to found juris-diction solely on the arrest of such a peregrinus disappeared.

He/

21. He correctly interpreted s 5 of Act 27 of

1912 as prohibiting arrest of the person or attach-
ment of his property in respect of a defendant
peregrinus who was resident in another province.
The relevant portion of the section provided:

"Whenever a defendant resides in the Union no attach-
ment of his person or property to found jurisdiction

shall be ordered." In this respect Pollak op cit
68 expresses the view that Maasdorp CJ in Smit v
Cramer 1913 OPD 123 and Kotzé J in Brooks v Maquassi
Halls Ltd 1914 CPD 371 wrongly interpreted the section
not as prohibiting but merely as doing away with the

necessity of an arrest of the person or attachment

of his property to found jurisdiction. This difficulty

was compounded by s 7 of Act 27 of 1912 which provided

that/

22.

that:

"Nothing in the preceding sections of this Act shall be construed as con-ferring upon any court jurisdiction to hear and determine any matter which it would not have had authority to hear and determine if the defendant had been served with a civil summons within the jurisdiction of the court wherein the proceedings are being taken."

About this section Pollak correctly remarks

(op cit 67 n 1) that it is impossible to give effect
to the literal meaning thereof without restricting
the jurisdiction of the divisions of the Supreme
Court in actions against persons who reside in the
Union of South Africa to the case in which the
defendant is an incola of the area to which the
court belongs.

A proper/

23. A proper reading of s 5 might'well,

as Pollak at 68 of op cit points out, have led to
the construction that with the prohibition of arrest
and attachment to found jurisdiction the divisions
of the Supreme Court had indirectly lost their juris-
diction to entertain an action against a peregrine
defendant who resided in the Union even though the
cause of action arose or the contract in respect of
which the plaintiff's claim was brought was entered
into within the area to which the court belonged.
S 5 of Act 27 of 1912 has now been re-enacted in
s 28(1) of the Act in the following terms:

"No attachment of person or property to . found jurisdiction shall be ordered by a court of any division against a person
who is resident in the Republic."

Section/

24. Section 7 has, however, not been re-enacted.

No doubt, to meet the objection to the possible, and

in Pollak's view the correct, construction of s 5 and
the difficulty in construing s 7 of Act 27 of 1912,
s 19(3) of the Act now provides:

"The provisions of this section shall not be construed as in any way limiting the powers of a provincial or local division as existing at the commence-ment of this Act, or as depriving any such divísion of any jurisdiction which could lawfully be exercised by it at such commencement."

In my view this provision now sanctions

the construction placed upon s 5 of Act 27 of 1912
by Maasdorp and Kotzé J in Smit v Cramer supra and
Brooks v Maquassi Halls Ltd supra respectively.
The prohibition is still there in s 28(1) of the

Act/
25. Act but s 19(3) now provides in effect that the

prohibition does not in any way deprive a court of
any jurisdiction which could lawfully have been
exercised by it prior to the provision. Such

jurisdiction could only have been exercised by
virtue of one of the grounds of jurisdiction. In
Brooks v Maquassi Halls Ltd supra Kotzé J said at

376 - 377:

"According to our common law and practice under it, the Court will exercise juris-diction upon any one of the following grounds, viz:
(1) Ratione domicilii; (2) ratione rei sitae; (3) ratione contractus; that is, where the contract has either been en-tered into or has to be executed within the jurisdiction. This is a correct statement of the law as summarised by Burge in his Commentaries, vol 3, chap 24, and has generally been adopted by our courts. But,in order to exercise juris-

diction/

26.

diction under either the second or third ground which I have mentioned, the prac-tice has always been to grant an arrest either of the property or person of the debtor ad fundandam iurisdictionem, and in this way the debtor or his property, to use the expressive language of the Dutch lawyers, becomes bankvast. There is, therefore, always something against which, in the event of the judgment being in favóur of the plaintiff, the decree of the Court can operate, and not amount to a mere nullity, for the Court, like nature, should do nothing in vain. There is yet a fourth means of exercising juris-diction, clearly recognised by the Roman-Dutch law, and which has been adopted in our South African practice, although it seems that the cases in the courts of this Province are not quite uniform on the point, viz, where, upon the applica-tion of an incola, the court will grant an attachment of a foreigner or of his property found within the territorial limits in order to establish jurisdiction. It is, however, not necessary to pursue this question any further in the present application.

Such/

27.

Such was the law at the time when Act 27 of 1912 was passed, by which some important changes have been introduced in the existing practice. The Act (secs 3, 5 and 7) has not increased the jurisdiction of the Court over a defendant in regard to the subject-matter of the suit, it has merely simplified the procedure. It has done away with the necessity of an attachment of person or property to found jurisdiction, and of edictal citation where the summons can be duly served in some other manner. It has thus dispensed with the inconvenience and cost of such proceedings. As I understand the three sections read together, it comes to this: Sec 5 provides that a creditor or plaintiff, resident in one Province of the Union, can in the court of his Province sue the defendant resident in another Pro-vince, without the process of attachment and without edictal citation, if the defen-dant can be duly served with a summons in some other way, e g, by personal service, provided (as sec 3 requires) that the court out of which the summons issues has juris-diction in respect of the matter or pro-ceedings in which the summons is taken out; while sec 7, as the marginal note correctly indicates, simply provides that no greater

jurisdiction/...

28.

jurisdiction is conferred upon the court out of which the summons issues than that which it already possesses in regard to the subject-matter or proceedings."

Thus, section 28 read with s 19(3) of
the Act facilitates the procedure as far as
effectiveness is concerned, but effectiveness
does not per se confer jurisdiction on a court.
The fact that in this case the respondent was not
a peregrinus in the full sense of the word, as
counsel put it, and the reliance on Roberts Con-
struction Company Limited v Willcox Brothers

(Proprietary) Limited supra, does not, in
my view, assist the appellant. See also Estate
Aqents Board v Lek 1979(3) SA 1048 (A) 1061B - 1063E.

To/

29.

To deal more directly and specifically with

prorogation, I revert to the other references relied upon by counsel for the appellant. I do not read the references to Pollak op cit 92 and the author's article in 1929 SALJ 237 241 or to Sonia's case supra as being authority for the proposition that consent to the jurisdiction by a peregrine defendant per se confers jurisdiction on the court concerned. In his book and in the article referred to Pollak was dealing with jurisdiction over the person only and not juris-diction of the court generally. In his book on Jurisdiction Pollak s v "When the Defendant is a Corporation" mentions at 91/2 seven cases in which, when the defendant in an action sounding in money

is a/

30. is a natural person, South African courts exercise

jurisdiction. Among these he includes a defen-

dant who submits to the jurisdiction of the court.
The learned author then proceeds to deal with the
situation in which the defendant in an action is a
corporation. Pollak does not however say that sub-
mission alone confers jurisdiction on the court.
At 84/5 he deals with submission by a defendant to
the jurisdiction of the court and refers to Voet

2.1.35 and to a passage in Ueckermann v Feinstein

1909 T5 913 920. This passage appears in a dictum

of Innes CJ at 919 - 920 which I quote in full:

"There remains the much more difficult question, whether acquiescence in a judgment in personam, pronounced by a court competent as to the cause, against

a defendant/

31.

a defendant over whose person the court had at the time no jurisdiction, operates to prevent such defendant from thereafter challenging the validity of the judgment. The inquiry may be put in a different shape - could such a defendant, under such cir-cumstances, have conferred jurisdiction originally upon the court by consent? Be-. cause, if he could consent originally, it follows that he could acquiesce subsequently. Apart from statute, the common law of Holland undoubtedly recognised the doctrine of the prorogation of jurisdiction - that is, that jurisdiction might be conferred or extended by consent of parties so as to enable the court to deal with a dispute which, apart from such consent, it would have had no jurisdiction to entertain. And that proro-gation of jurisdiction might take place in regard to inferior as well as superior courts is clear from what Voet says at 2, 1, 15. Some of the authorities favoured a very wide application being given to this doctrine of prorogation. But I think it must be recognised as settled law in South Africá that there can be no prorogation in regard to cases where the court has no authority at all to adjudicate upon the

subject-matter/...

32.

subject-matter of the dispute; because in such cases, the matter at issue being by law outside the cognisance of the court, the consent of parties cannot confer a coercive jurisdiction upon the court, which the law expressly denies to it."

In XLVI (1929) SALJ 241 Pollak expresses the view
that it is only common sense that a defendant who
expressly consents to the plaintiff bringing his
action in a particular division of the Supreme Court,
should not be allowed thereafter to object to the

jurisdiction of such division. Again, nowhere in
this article does Pollak state that consent alone
confers jurisdiction upon a court.

The dictum in Sonia's case supra at 563 C

which is relied on reads as follows:

"Save for the principle of submission, that

is,/

33.

is, a voluntary submission by a defendant to the Court exercising jurisdiction over him which it does not possess in law, the basic principle of jurisdiction is effec-tiveness. (Schlimmer v Executrix in Estate of Rising, 1904 TH 108 at p 111). This point is fully discussed by Mr Pollak in his book on Jurisdiction from p 15 onwards. He quotes several dicta, one from an American case - McDonald v Mabee 243 U S 90 (1917) where Holmes, J said: 'The foundation of jurisdiction is physical power.'"

I do not read this passage as indicating

that prorogation or submission by itself confers

jurisdiction on a court. Regard being had to the
context in which the comment was made by Price AJA
it is evident that the court did have jurisdiction
over the cause. As far as the person of the defen-
dant was concerned Price AJA distinguished between

a/
34. a defendant who submits to the jurisdiction and

one who does not do so. In my view, the effect
of the judgment is that, in the latter case, the
added requirement of effectiveness has to be satis-
fied. That would be attained by the arrest of the
person or attachment of his property in the area
of jurisdiction of the court. Were he an incola
of the Republic though a peregrinus of the court,
such arrest or attachment would, in view of the
removal by legislation of certain procedural impe-
diments, no longer be necessary. (563 E - H) The
words "submission by the Defendant to the Court
exercising jurisdiction over him which it does not
possess in law" in the passage quoted above must be

read/
35. read in the restricted sense in which it was in-

tended to apply. The emphasis must be placed on
the word him. That this was the connotation in
which the remark by Price AJA should be read ac-
quires added force when regard is had to a passage
by Pollak op cit 19 to which Price AJA refers and the

footnote thereto. The passage reads as follows:

"For reasons of policy it is held that a person who voluntarily submits himself to the judgment of the court, to whose jurisdiction he would not otherwise be subject, confers, by so doing, juris-diction on such court and that he cannot afterwards be heard to say that the court had no jurisdiction over him."

In the footnote to this passage reference is made

to Ueckerman v Feinstein supra, a passage from which

I quoted above and to Otto v Schurïnk and Another 1911 TPD 367

in/

36.

in which case it was clear that the magistrate's

court had jurisdiction as to the cause. At 374

Wessels J, after having referred to Vinnius, said:

"In other words, if a Magistrate has jurisdiction over a cause, and a party defendant acquiesces in the judgment of the Magistrate, it is too late for him to say that all the necessary for-malities have not been complied with."

Mr Shaw also sought to draw a distinc-
tion between the law relating to arrest and attach-
ment ad fundandam iurisdictionem and prorogation.
As it seems probable, he argues,that the right of

arrest was a privilege extended to incolae (see
Wessels History of the Roman Dutch Law 690-1) the

rule of the South African law refusing the right of

arrest/

37.
arrest to a peregrinus, except where there is a
ground of jurisdiction other than arrest, is gene-rally in accordance with the common law. These considerations, he submits, clearly however do not apply with regard to a consent to jurisdiction where there is no element of enforcing appearance.
No direct authority, either in our case law or in the Roman-Dutch law, has been quoted to this Court in support of this proposition. On the contrary, the dictum of Innes CJ in Ueckermann v Feinstein supra to the effect that there can be no prorogation in regard to cases where the court has no authority at all to adjudicate upon the subject-matter of the dispute, has never been departed from

in this/

38. in this country. The phrase "The consent of the

parties cannot confer a coercive jurisdiction upon
the court" in the dictum referred to is derived

from Farquharson v Morgan 1894 1 QB 552 in which
case Lord Davey said:

"Parties cannot by agreement confer upon any court or judge a coercive jurisdic-tion which the court or judge does not by law possess".

These words were quoted by Mason J in Ellis v Morgan; Ellis v Dessai 1909 TS 576 582 and, as appears above, referred to by Innes CJ in the Ueckermann v Feinstein judgment supra.
The crucial question that presents itself is: what jurisdiction does a Supreme Court in S A law possess?

A court/

39.

A court can only be said to have jurisdiction in a

matter if it has the power not only of taking cog-

nisance of the suit but also of giving effect to

its judgment. (See Steytler NO v Fitzgerald 1911
AD 295 346/7). By virtue of the provisions of s 28(1)
of the Act (and, of course, its predecessor, s 5 of
Act 27 of 1912, which was worded very similarly) the
procedural impediment in so far as effectiveness in
respect of any person resident in the Republic is
concerned has been eliminated but it still has to be
established in every case that, in terms of s 19(1) of
the Act, a court has the power of taking cognisance of

the suit. In the matter of The Owners Master and Crew of the S S"Humber"v The Owners and Master of the S S

"Answald"1912 AD 546 554 Innes ACJ referred to the con-

clusion/

40.

clusion to which the court had come in Beckett & Co v

Kroomer as to the interpretation of the words "causes
arising" in s 16 of the Transvaal Adminstration of
Justice Proclamation (the very words which appear in
s 19(1) of the Act) as being:

"... that the expression 'causes arising' formed the dominating feature of the section; and that when a Court was given unlimited jurisdiction in all 'causes arising' within a certain area, that amounted to a jurisdiction to entertain all suits for which, by the common law of the Colony, the highest Court of first instance would in that area be the proper forum. The presence of a contemplated defendant would of course be an important element in the inquiry; but the question in each instance would be whether the particular'cause'was one of which the Court concerned could, according to the principles of law, rightly take cogni-
zance The claim being based upon
tort, and the Provincial Division being

neither/

41.

neither the forum loci delicti nor the forum rei, it is clear that, apart from the machinery of arrest, that inquiry would have to be answered in the negative."

This dictum again emphasises the principle that in addition to the machinery of arrest (which, in the case of a local peregrinus, is dispensed with by law) something more is required before a court can take cognisance of a matter in its area of juris-diction. By prorogation a defendant subjects his person to the jurisdiction of the court, but that is not enough. One or more of the traditional grounds of jurisdiction must also be present.
For these reasons I have come to the conclusion that the consent of the defendant did not

confer/

42.

confer any jurisdiction on the Court a quo and that
the latter had no authority to take cognisance of the matter. The appeal cannot, therefore, succeed on the jurisdiction point. It is, consequently, not necessary to consider the breach of contract issue.
Mr Shaw has not addressed us on the ques-tion of costs. Some costs might have been incurred both before and after the liquidation of Carolina in respect of, for instance, the receipt and con-sideration of documents served upon it or the execu-trix. Under these circumstances it is only just, in my view, to order the appellant to pay the costs of appeal.

In the/

43.

In the result the appeal is dismissed,

with costs.

JUDGE OF APPEAL

SMALBERGER JA )

VIVIER JA )

- Concur

BOSHOFF AJA ) STEYN AJA )

---