CIV3701 CASE STUDIES.

CIV3701 CASE STUDIES. CIVIL PROCEDURE – CASE STUDIES JURISDICTION: HIGH COURT CASE STUDY 1 (Ewing McDonald & Co Ltd v M & M Products Co) FACTS An action for damages on the grounds of breach of contract was instituted in the then Witwatersrand Local Division (WLD). The plaintiff, Ewing McDonald & Co Ltd, was an incola of the WLD; the defendant, M & M Products Co, was a peregrinus of the whole Republic. The contract was concluded outside the Republic but it was implemented throughout the Republic so that Johannesburg was the locus solutionis (i.e. place of performance of an obligation) and the WLD, the forum solutionis. The plaintiff obtained an order in the WLD authorising the attachment ad fundandam jurisdictionem, (and in the alternative, attachment ad confirmandam jurisdictionem) of the defendant's right and title to certain trademarks registered in the Republic. The trademarks were subsequently attached in accordance with the order, by the sheriff for the jurisdictional area of the then Transvaal Provincial Division (TPD). The defendant challenged the order of attachment, arguing that all the trademarks were registered in Pretoria and as such, outside the area of jurisdiction of the WLD. The defendant's application was granted and the order of attachment set aside. The plaintiff appealed against the order setting aside the attachments on the following grounds, inter alia, that section 26(1) of the Supreme Court Act of 1959 permitted an order of one division to be executed on assets found outside the jurisdictional area of that division, thereby rendering its judgment effective. Because an attachment after judgment would render that court's judgment effective, an attachment before judgment would endow the court with the required jurisdiction to adjudicate the matter. ANALYSIS (1) What are the requirements for an order for attachment ad fundandam jurisdictionem? A court will assume jurisdiction over a peregrine defendant of the whole Republic if attachment of the defendant’s property ad fundandam jurisdictionem has taken place within the court’s area and the plaintiff is an incola of the court concerned. In this instance, the attachment founds or establishes jurisdiction. It is on the basis of the attachment that the court assumes jurisdiction over the peregrine defendant. That the cause of action occurred outside the jurisdiction of the court is not relevant. For details regarding the formulation of this requirement through the decided cases, see pg 110 of the textbook and study unit 2.2.3 of Tutorial letter 501/3/2018. (2) What are the requirements for an order for attachment ad confirmandam jurisdictionem?